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Phiberoptic

In or Out of Status? AP application and other perils

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I would greatly appreciate any kind of input given to my situation.

I came to the US on an F-1 in 1998, on my last semester I got hired by a company that sponsored my H-1B. This visa was valid from February 2000 until December 2003 (December 1, 2003 was the date on my I-94).

Now in December 2000, my mother (a US resident/green card holder) applied for an AOS based on family, we got our NOA1 at the end of December of that year and has been in process ever since.

Now, my question is, am I considered "Out of Status" since my H-1B expired on December 1, 2003? But if I had left, wouldn't it had meant that I abandoned my I-130/AOS petition? I'm confused :(

For more references, I got married to my baby (US Citizen) on March 29, 2006 and have applied for AOS on May 5, 2006. I'm asking this because I would need an emergency AP (my father had two strokes in the past month and I haven't seen him since 2003 when he came to visit) and neither my husband or I want to either threaten our application or be denied entry IF I get an AP.

Thank you in advance and I appreciate your input.

Also, do I need my original I-94 for the interview or a copy is enough?

Any other relevant information:

Mother petition AOS filed in TSC in 2000

Husband petition AOS in VSC in 2006

Edited by Phiberoptic

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You need to find out if you have accrued any overstay... if you have then it would not be wise to use AP... you may need to have a meeting with an immigration lawyer to determin if you do have any overstay/out of status time...

You will need your I-94 for your interview if you have lost it you can get a copy by filing an I-102 you can get full info on this at the USCIS website...

Kezzie

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You need to find out if you have accrued any overstay... if you have then it would not be wise to use AP... you may need to have a meeting with an immigration lawyer to determin if you do have any overstay/out of status time...

You will need your I-94 for your interview if you have lost it you can get a copy by filing an I-102 you can get full info on this at the USCIS website...

Kezzie

How can I find out if I'm out of status? I would think that from December 8, 2000 (date of NOA1 for I-130) and December 1, 2003 (I-94 expiration) is a safe time in between, no?

Thank you for your help. Do you know by any chance if how long does an I-102 take to process?

Thanks!!!

Edited by Phiberoptic

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As Kezzie said, you need to consult with a knowledgeable immigration lawyer. Your case is complicated enough to warrant a legal opinion.

It is important for you to determine if you have accrued any overstay after your H1B had expired (Dec. 1, 2003) even though you have a pending I-485. Any overstay of more than 6 months will result to a 3-year bar from re-entry into the US (if you leave). Any overstay of more than 1 year will result to a 10-year bar from re-entry.

Even if you are granted an AP, this will not prevent the bar from being triggered when you try to re-enter with it.


08/17/08: Mailed N400 to TSC

08/19/08: USPS attempted delivery

08/20/08: TSC received N400

08/21/08: TSC cashed check

09/02/08: Received NOA...........Priority date: 08/20/08

..............................................Notice date : 08/22/08

09/02/08: Received Biometrics Notification

09/18/08: Biometrics completed - Charlotte DO

10/24/08: Received Interview Letter

12/08/08: Interview @ 1:00pm. APPROVED!

01/05/09: Oath Ceremony 10:00AM. Now officially a USC!!!

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

01/17/09: Applied for US Passport and passport card

01/28/09: Received US Passport

01/29/09: Received US passport card

01/29/09: Received naturalization certificate back from passport office

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I won't even pretend that I'll be able to answer this (I agree that you should consult a very knowledgable attorney), but I'm just curious: Your mother filed an AOS for you in December 2000, and it hasn't been approved yet? That seems...a little ridiculous (five YEARS?).

I was under the impression that once you apply for AOS, you become an AOS applicant (or whatever it's called) and you are considered to have abandoned your H1-B. I'm probably wrong, though. It seems like you have several different possible statuses (stati?) here, you may be in between them all. Good luck!


4.21.06 - Married!

5.2.06 - Mailed AOS and EAD to Chicago

5.4.06 - Application arrives in lockbox

5.9.06 - NOA 1 for AOS and EAD

5.11.06 - NOA 1 rec'd!

5.17.06 - Touched (AOS, EAD)

5.19.06 - Touched (AOS, EAD)

5.20.06 - Biometrics notice for AOS and EAD

5.30.06 - Biometrics!

6.1.06 - Touched (AOS)

6.3.06 - Touched (AOS, EAD)

6.26.06 - Interview notice!!! (Aug. 9 at 10 a.m.)

7.6.06 - Touched (EAD)

7.8.06 - Touched (EAD)

7.10.06 - Touched (EAD)

7.11.06 - EAD approval notice!!!

7.15.06 - EAD card rec'd!

8.9.06 - Interview - APPROVED!!!

sawavingflag.gifuswavingflag.gif

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I won't even pretend that I'll be able to answer this (I agree that you should consult a very knowledgable attorney), but I'm just curious: Your mother filed an AOS for you in December 2000, and it hasn't been approved yet? That seems...a little ridiculous (five YEARS?).

I was under the impression that once you apply for AOS, you become an AOS applicant (or whatever it's called) and you are considered to have abandoned your H1-B. I'm probably wrong, though. It seems like you have several different possible statuses (stati?) here, you may be in between them all. Good luck!

fyi,

Spouses of USCs have a special place in line: the front. Petitions filed by USCs make an immigrant visa number immediately available to the beneficiary spouse.

Other family members don't get the same golden glove treatment, and for family members of LPRs (Green Card) the wait is even longer. During that long wait, the beneficiary (the OP in this case) must maintain their own legal status in the US---the pending petition is not enough.


Now That You Are A Permanent Resident

How Do I Remove The Conditions On Permanent Residence Based On Marriage?

Welcome to the United States: A Guide For New Immigrants

Yes, even this last one.. stuff in there that not even your USC knows.....

Here are more links that I love:

Arriving in America, The POE Drill

Dual Citizenship FAQ

Other Fora I Post To:

alt.visa.us.marriage-based http://britishexpats.com/ and www.***removed***.com

censored link = *family based immigration* website

Inertia. Is that the Greek god of 'can't be bothered'?

Met, married, immigrated, naturalized.

I-130 filed Aug02

USC Jul06

No Deje Piedras Sobre El Pavimento!

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Spouses of USCs have a special place in line: the front. Petitions filed by USCs make an immigrant visa number immediately available to the beneficiary spouse.

Other family members don't get the same golden glove treatment, and for family members of LPRs (Green Card) the wait is even longer. During that long wait, the beneficiary (the OP in this case) must maintain their own legal status in the US---the pending petition is not enough.

Thanks for clarifying. I knew that, somewhere... :)

(But FWIW, five years is just extortion. Imagine renewing your EAD five times...)


4.21.06 - Married!

5.2.06 - Mailed AOS and EAD to Chicago

5.4.06 - Application arrives in lockbox

5.9.06 - NOA 1 for AOS and EAD

5.11.06 - NOA 1 rec'd!

5.17.06 - Touched (AOS, EAD)

5.19.06 - Touched (AOS, EAD)

5.20.06 - Biometrics notice for AOS and EAD

5.30.06 - Biometrics!

6.1.06 - Touched (AOS)

6.3.06 - Touched (AOS, EAD)

6.26.06 - Interview notice!!! (Aug. 9 at 10 a.m.)

7.6.06 - Touched (EAD)

7.8.06 - Touched (EAD)

7.10.06 - Touched (EAD)

7.11.06 - EAD approval notice!!!

7.15.06 - EAD card rec'd!

8.9.06 - Interview - APPROVED!!!

sawavingflag.gifuswavingflag.gif

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I would greatly appreciate any kind of input given to my situation.

I came to the US on an F-1 in 1998, on my last semester I got hired by a company that sponsored my H-1B. This visa was valid from February 2000 until December 2003 (December 1, 2003 was the date on my I-94).

Now in December 2000, my mother (a US resident/green card holder) applied for an AOS based on family, we got our NOA1 at the end of December of that year and has been in process ever since.

Now, my question is, am I considered "Out of Status" since my H-1B expired on December 1, 2003? But if I had left, wouldn't it had meant that I abandoned my I-130/AOS petition? I'm confused :(

For more references, I got married to my baby (US Citizen) on March 29, 2006 and have applied for AOS on May 5, 2006. I'm asking this because I would need an emergency AP (my father had two strokes in the past month and I haven't seen him since 2003 when he came to visit) and neither my husband or I want to either threaten our application or be denied entry IF I get an AP.

Thank you in advance and I appreciate your input.

Also, do I need my original I-94 for the interview or a copy is enough?

Any other relevant information:

Mother petition AOS filed in TSC in 2000

Husband petition AOS in VSC in 2006

Can you clarify some things?

There is no such thing as 'petition AOS". There is a petition, and there is AOS. Two separate things. Maybe you could post what forms were filed.

Also, what is your mother's status? Is she a Permanent Resident (Green Card)? Or is she a USC?

At any rate, the safest bet for you is to consult with a lawyer who can help you sort it out. My guess is that you have been out of status since your H-1B expired and you should not leave the US under any circumstances until you get your Green Card. That's a conservative approach, but you don't present any evidence of being in status. If you filed I-485 in 2000 (that's the form for AOS) you would've heard something by now, even if to tell you you're not yet eligible.

See a lawyer; don't play games. Marriage to a USC will cure a lot of your porblems, but once you're outside the US with a 10 year ban, it's a bigger problem for your new spouse.

Spouses of USCs have a special place in line: the front. Petitions filed by USCs make an immigrant visa number immediately available to the beneficiary spouse.

Other family members don't get the same golden glove treatment, and for family members of LPRs (Green Card) the wait is even longer. During that long wait, the beneficiary (the OP in this case) must maintain their own legal status in the US---the pending petition is not enough.

Thanks for clarifying. I knew that, somewhere... :)

(But FWIW, five years is just extortion. Imagine renewing your EAD five times...)

No, the person isn't in a legal status for all those years and isn't entitiled to an EAD.

They're supposed to wait outside the US until a visa number is available for them, or maintain a legal status of their own in the US (H-1B, F-1 etc). The OP indicates nothingness. Actually, I wonder what she's been doing for the last 3 years?


Now That You Are A Permanent Resident

How Do I Remove The Conditions On Permanent Residence Based On Marriage?

Welcome to the United States: A Guide For New Immigrants

Yes, even this last one.. stuff in there that not even your USC knows.....

Here are more links that I love:

Arriving in America, The POE Drill

Dual Citizenship FAQ

Other Fora I Post To:

alt.visa.us.marriage-based http://britishexpats.com/ and www.***removed***.com

censored link = *family based immigration* website

Inertia. Is that the Greek god of 'can't be bothered'?

Met, married, immigrated, naturalized.

I-130 filed Aug02

USC Jul06

No Deje Piedras Sobre El Pavimento!

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(But FWIW, five years is just extortion. Imagine renewing your EAD five times...)

It can be longer. I have friends, here since the early 90s, who are still waiting. If you're parents got green cards when they moved here, but you weren't able to, it can be very difficult.

I only waited 3 months for my Dutch residence permit (green card basically). People in Holland complained about that being too long :)


2004-08-23: Met in Chicago

2005-10-19: K-1 Interview, Moscow (approved)

2007-02-23: Biometrics

2007-04-11: AOS Interview (Approved)

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Most likely you've been out of status since H1-B expired (or sooner, if you stopped working for that employer sooner than I-94 expiration date). The mother probably filed I-130 (petition for alien relative), not AOS. For an adult child of the LPR, the wait is very long for the visa number to become available. 5 yrs is not out of the ordinary. A filed I-130 petition does not grant legal status at all.

In summary, I would not leave the country until you get the GC. Consult an attorney to be sure.


09-02-2005 Applications for AOS, EAD, and AP received by MSC

10-21-2005 AOS fingerprint notice for 12-08-2005

11-07-2005 AP approved

12-05-2005 Infopass appt at San Jose office for interim EAD -- Refused, because it is already approved by MSC on 11-07-2005

12-07-2005 Attempt at interim EAD at San Francisco office -- no go. Back to San Jose, where CSO (chief station officer) tells they will contact MSC via email to request permission to issue interim EAD

12-08-2005 Biometrics for AOS and EAD. Having no EAD appt letter was no problem (used EAD NOA)

12-15-2005 EAD arrived in the mail

12-24-2005 Received interview letter; interview scheduled 03-01-2006

01-28-2006 Received replacement SSN card in married name (5 wks since application)

03-01-2006 AOS interview -- approved; received stamp in the passport

03-13-2006 Green card arrived in the mail

---

Filing for removal of conditions

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I won't even pretend that I'll be able to answer this (I agree that you should consult a very knowledgable attorney), but I'm just curious: Your mother filed an AOS for you in December 2000, and it hasn't been approved yet? That seems...a little ridiculous (five YEARS?).

I was under the impression that once you apply for AOS, you become an AOS applicant (or whatever it's called) and you are considered to have abandoned your H1-B. I'm probably wrong, though. It seems like you have several different possible statuses (stati?) here, you may be in between them all. Good luck!

First of all, thank you for the ones that responded with words of encouragement and in a very non-judgemental way, I appreciate the support, we all have our own particular cases and we come here asking for help one way or another.

Ok, I have not been able to get all the facts from the lawyer but this is what I know is a fact,

H1-B is dual intent, so an H-1B can maintain their status until they use their AOS benefits or the visa expires, whichever comes first.

Edited by Phiberoptic

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I forgot to add this for the ones who asked:

- I-130 was presented in December 2000, someone was correct in pointing out that this was the petition filed by my Green Card Holder mother and received by USICS that same month.

- H-1B expired on December 1, 2003 time on which I stopped working.

- Met my husband on July 2003, I know I should have left the country but I had to sell my house and I didn't for a long period of time (more than 180 days after expiration date of my H-1B)

(Hard to sell a house in the middle of the winter during the dot com bust era)

- By the time I could have left the country, I was under the ban anyway. My now husband didn't want to let go and he thought it would have been harder to do. I didn't want to get married yet either because I had to know for sure that's what I wanted to do and not rush into any decisions due to other motives in play.

I'll keep you posted.

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Now, my question is, am I considered "Out of Status" since my H-1B expired on December 1, 2003? But if I had left, wouldn't it had meant that I abandoned my I-130/AOS petition? I'm confused :(

Phiberoptic,

Now I can answer this. No, you did not have an "AOS" to abandon at that time. You had a petition filed on your behalf that was not going to 'ripen' for a long time. It sounds very much like you have been accumulating unlawful presence (overstay) since your H-1B expired and you left your job. H-1Bs don't even get a grace period to settle their affairs, so needing to sell the house profitably is not a reason for USCIS.

I'm sorry about your dad, but I think your only option is to wait until you have a Green Card before you leave the US, if you want to get back in. If you do leave, and incur the ban, your husband will be burdened with writing a waiver application, which can be very hard and time consuming to get approved.

Wish you the best.. let us know if you learn anything new :star:


Now That You Are A Permanent Resident

How Do I Remove The Conditions On Permanent Residence Based On Marriage?

Welcome to the United States: A Guide For New Immigrants

Yes, even this last one.. stuff in there that not even your USC knows.....

Here are more links that I love:

Arriving in America, The POE Drill

Dual Citizenship FAQ

Other Fora I Post To:

alt.visa.us.marriage-based http://britishexpats.com/ and www.***removed***.com

censored link = *family based immigration* website

Inertia. Is that the Greek god of 'can't be bothered'?

Met, married, immigrated, naturalized.

I-130 filed Aug02

USC Jul06

No Deje Piedras Sobre El Pavimento!

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