out of status in the past. Filing AOS

[da1980 0]

I may have been out of status in the past (less than 180 days). If i apply for AOS, family based - F1B category, will be automatically denied. I am in H1 status right now.

Edited May 29, 2010 by da1980

[JimVaPhuong 4,863]

I may have been out of status in the past (less than 180 days). If i apply for AOS, family based - F1B category, will be automatically denied. I am in H1 status right now.

Do you mean F2B? I've never heard of F1B.

The short answer is no - you should not be automatically denied. You are automatically denied if you are determined to be inadmissible. An overstay of less than 180 days would not result in a ban, so you would not be inadmissible for that reason. That doesn't mean you won't be denied for other inadmissibilities. How long have you been in the US on H1 status? Is your priority date for your family based visa current?

[gc200 0]

Do you mean F2B? I've never heard of F1B.

The short answer is no - you should not be automatically denied. You are automatically denied if you are determined to be inadmissible. An overstay of less than 180 days would not result in a ban, so you would not be inadmissible for that reason. That doesn't mean you won't be denied for other inadmissibilities. How long have you been in the US on H1 status? Is your priority date for your family based visa current?

Hey there,

F1 = unmarried son of US citizen.

Yes, my petition is current. I received my H1 in Dec 2009. What kind of other inadmissibilities, do you mean? I have never worked without authorization and have never gain illegal presence in US. The thing is, I am canadian citizen so we never receive I-94 in our passport. Neither do the POE officer stamp by which date we need to leave US. So, technically i have never over-stayed. But, I just read on some website that Canadians are only allowed to stay 6 months and i have stayed almost 8 months. (i hope this gives more specifity to my case). Do you know if i would be inadmissible or denied to adjust status in US.

[JimVaPhuong 4,863]

Hey there,

F1 = unmarried son of US citizen.

Yes, my petition is current. I received my H1 in Dec 2009. What kind of other inadmissibilities, do you mean? I have never worked without authorization and have never gain illegal presence in US. The thing is, I am canadian citizen so we never receive I-94 in our passport. Neither do the POE officer stamp by which date we need to leave US. So, technically i have never over-stayed. But, I just read on some website that Canadians are only allowed to stay 6 months and i have stayed almost 8 months. (i hope this gives more specifity to my case). Do you know if i would be inadmissible or denied to adjust status in US.

Ok, I know what F1 is. You mentioned "F1B", which confused me.

There are a lot of different inadmissibilities. They are described in section 212(a) of the Immigration and Nationality Act, which you can read here:

http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html

If you are deemed to have one or more inadmissibilities then technically you aren't even allowed to enter the United States. Presumably, you would have been screened for some of these before you got an H1 visa. However, it's not unusual for an inadmissibility to be determined when an adjustment of status is adjudicated.

Eligibility to adjust status is summed up in the INA in three sentences:

1. the alien makes an application for such adjustment,

2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and

3. an immigrant visa is immediately available to him at the time his application is filed.

Number 1 is straightforward. You don't get the green card unless you apply for it.

Number 2 is in two parts. You have the eligibility part covered if you're the unmarried son of a US citizen. The only question is whether there are any inadmissibilities.

Number 3 has to do with a petition having been filed on your behalf, and your priority date being current. If both of these are true, then a visa is immediately available to you.

If there is no record of your entry and/or exit, then Department of Homeland Security (which includes CBP and USCIS) probably won't know about your overstay unless you tell them. I'm not aware of any document you have to submit with the AOS application that requires you to list your visits to the United States, but I've not studied the AOS process for F visas. If you are required to provide this information, then be truthful. The overstay is less than 180 days, so it would not result in an automatic ban, and would not make you inadmissible. If you are required to declare it and you fail to do so, that could be considered a material misrepresentation, which WOULD make you inadmissible. In other words, the overstay won't result in the AOS being denied, but lying about it or attempting to hide it would. You should provide all information they ask for, and be truthful in all your responses.

There is another clause in the INA that sometimes causes problems for people adjusting status from a non-immigrant visa that has to do with "preconceived intent". Basically, it means entering with a non-immigrant visa with the intent to immigrate. This is an example of an inadmissibility that would be discovered when attempting to adjust status. When this question comes up, it's usually the result of an I-130 being filed soon AFTER an alien enters with a non-immigrant visa. For example, entering with a B2 visitor's visa, marrying a US citizen a few weeks later, and then attempting to adjust status. I saw in your other thread that your father filed the I-130 in 2004. So, a question that may come up is whether you entered with the H1 visa with the intention of waiting out the priority date on the I-130 and adjusting status while still in the US. If USCIS concludes that this is what you intended to do, then you could be denied for preconceived intent.

It might be worthwhile to consult with an immigration attorney about this possibility, since the vast majority of us here are armchair immigration hobbyists. If there's any risk of being denied for preconceived intent, then it would be safer to finish the term of your H1, and then return to Canada to apply for the F1 visa.

[gc200 0]

thank you very much for a very detailed answer. Appreciate it.

I don't have any of those ineligibilities mentioned on travel.state.gov website. 100% certain.

I definitely meet 1, 2 and 3 requirements.

The reason why I believe I can safely argue against "preconceived intent" is because I applied for H1B in 2009, when the priority date being processed by Dept of State was nowhere near close to my priority date. They just picked up speed in several months. #2) I had a job available for me #3) The reason they might not even bring this issue up is because as far as I know H1B is dual intent visa anyways. So even if i had an intent, which clearly in my mind I didn't, they shouldn't argue about it.

Do you think they would ask me anything about any of H1B visa stuff? like paycheck or employment letter and stuff. I really don't think H1 stuff might even brought up because YES i am on H1 status, but I am not even applying for greencard through employment. It's family based. In any case, I am submitting I-94 and I-797C approval letter along with AOS documents to prove that I am currently in US on H1B status. Do you think i should send a copy of my payroll and employment letter along with I-485 stuff??

Again thank you very much for taking time to type that detailed response. People on this forum are awesomely nice!!!