Divorce while AOS

[lili0301 0]

I went to US in 2008 and got married to my petioner. We filled for my AOS, got my work authorization and had my AOS interview. After that, marriage didn't work out and we filled for divorce. I never got my greencard( didn't get any RFE, just took longer than everybody else). Anyway I left the country for family reasons while in AOS.

My question is...is this consider overstay? (stayed in US for 9 months and a half)

Will I have any problem to go back to the US?

Thanks in advance.

[Anh map 2,098]

I went to US in 2008 and got married to my petioner. We filled for my AOS, got my work authorization and had my AOS interview. After that, marriage didn't work out and we filled for divorce. I never got my greencard( didn't get any RFE, just took longer than everybody else). Anyway I left the country for family reasons while in AOS.

My question is...is this consider overstay? (stayed in US for 9 months and a half)

Will I have any problem to go back to the US?

Thanks in advance.

- Moved from K1 Forum to AOS from Family Based Visa Forum -

What is your current status? And how would your prove it? Was the adjustment approved and you just don't have the physicial green card? If so, did you get the I-551 stamp in your passport prior to departing the US?

Edited March 20, 2010 by Anh map

[GinaJ 0]

Once you file for AOS you are in legal status. The EAD card can be the proof of your legal status, and you should have no problem applying for a visa and going back to the US. But if you are planning on returning without visa or AP then that will be a problem. I think once you leave the country without AP while the AOS is pending it means you abandoned your green card application...(could be wrong though as I can't remember this exactly)

[sachinky 464]

If you left the U.S. without an AP, then your AOS is considered as abandoned.

Which would mean you essentially have no status as of now.

[Matt & Eliane 0]

Yes...I know my case has been abandoned by now. I'd start another visa process.

[sachinky 464]

If your AOS was never approved, then yes, those 9 months count as overstay, IMO.

Edited March 20, 2010 by sachinky

[VanessaTony 3,567]

I went to US in 2008 and got married to my petioner. We filled for my AOS, got my work authorization and had my AOS interview. After that, marriage didn't work out and we filled for divorce. I never got my greencard( didn't get any RFE, just took longer than everybody else). Anyway I left the country for family reasons while in AOS.

My question is...is this consider overstay? (stayed in US for 9 months and a half)

Will I have any problem to go back to the US?

Thanks in advance.

So you arrived in 2008 I assume on a K1 considering where this is where you first posted. You have an I-94 date of 90 days.

Assuming you arrived lets say 1 June 2008 then you had an expiry date of 30 August 2008. After this date you are considered "out-of-status". Arriving on a K1 protects you from deportation (because you need to apply for AOS) but it DOESN'T stop the overstay clock. Even if you had the AP document, and left the country prior to AOS approval (but after the 180 days of ban) then you will still be banned from entering the US for 3 years.

HOWEVER, you said you applied for your GC and that you had an interview. Were you approved or did you never find out? We'll assume you never got the approval and your leaving abandoned your application (if you were approved but never received the card you're still considered LPR but by now your ROC should have been filed (most likely) so lets say you have no status in the US right now).

If your AOS wasn't approved your out-of-status days after the I-94 date count against you. You said you stayed in the US for 9 1/2 months. If we assume 90 of those days were included in the I-94 then you have JUST gone over the 6 months overstay and so you have a 3 year ban on re-entering the US.

You need to look at the EXACT date on your I-94, and the EXACT date you left. IF it's under 180 days then you have escaped a ban. if it's OVER I80 days then you DO have a 3 year ban. Good news is it's under 365 days which would have been a 10 year ban.

Check your dates. Once you have passed the 3 year ban period then you will be able to apply for a visitor Visa. Bear in mind that you will need to show STRONG ties to your home country in order to get the visa, and will need to show that evidence when you GET to the US as well (as even with a visa they can deny you entry).

if you mean you want to apply for a fiance or spousal visa then you're fine as well. Make sure you disclose your overstay and ban on any documents when asked.

Best of luck.

[lili0301 0]

I never found out what happened to my GC. I left my I94 with USCIS when I had my interview so I don't know what it says on it.

[lili0301 0]

but I was in process. That's why I stayed for 9 months. I was waiting for an answer.

[besaangel 17]

Did you move to another residence? If so, did u inform the USCIS about your move?

[VanessaTony 3,567]

but I was in process. That's why I stayed for 9 months. I was waiting for an answer.

Okay then. Do you have the stamp in your passport saying when you arrived? Add 90 days to that date and that's when your I-94 would have expired.

What date did you leave? Do you remember that? Is there any way for you to find that out?

If you can't figure it out, assume you have the 3 year ban and wait to enter until after 3 years. The issue with the 3 year ban is it depends on when you LEFT the US so you need to at least know the month and year to figure out when your ban ends.

Edited March 20, 2010 by Vanessa&Tony

[lili0301 0]

I arrived in 10th aug 2008 so my I94 expired in nov 2008 right? But I got married before that...in oct 2008. I left the country in june 04th 2009 after filled my divorce. I thought I'd be fine because I was in process to get my greencard. But my process has never been approved or denied.

Yes...I moved but I've told them.

[lili0301 0]

yes...but I've informed them.

[Danu 19]

I suppose it depends. If you were still in processing when you got the divorce and your ex withdrew the petition then you have no status in the states. As you left in June, your I-94 would have been 7 months expired (approximately) so you would be over the 180 days but under 365, which incures a 3 year ban on you. You would have given them your AP at the interview, so probably shouldn't have left without that or the greencard in your hand. If you have gone from then to now without hearing anything I would call USCIS to see if your petition is even still being processed, if its not then you will have the ban, if it has been and you dont have the card you should be able to request a new one to get back in.

[VanessaTony 3,567]

I arrived in 10th aug 2008 so my I94 expired in nov 2008 right? But I got married before that...in oct 2008. I left the country in june 04th 2009 after filled my divorce. I thought I'd be fine because I was in process to get my greencard. But my process has never been approved or denied.

Yes...I moved but I've told them.

Yep your I-94 expired 8 November 2008. Your left 209 days after your I-94 expired which means a 3 year ban.

Unfortunately this is one of the issues with the entire process. You'd think you're fine if you're applying but you're not. In may case for instance my I-94 expired 11 Dec 2009 and unfortunately I have been unable to apply for AOS (that changes in 7 days!) so as long as I APPLY for AOS (and AP) before the 180 days, I technically should still be able to use AP because my out-of-status days PAUSE when I apply. However if my AOS is denied (**knock on wood** it's not) then ALL the days from my I-94, including the waiting time counts against me and towards a ban which is why it's best to apply for AOS asap (it just isn't always possible).

Sorry but you can't go to the US until after June 4th 2012.

Edited March 20, 2010 by Vanessa&Tony