Withdrawn I-130: was I out of status and therefore barred?

[Brian_74 0]

Hello!

I have a question regarding re-entry to the USA. Many years ago, back in 2003, I married a US citizen. We separated in January 2005 and the I-130 was withdrawn. Shortly after having received the denial of the I-130/I-485 application, I returned to Europe.

My question is: as I left voluntarily 2-3 months after the I-130/I-485 was denied, would have this incurred a travel ban? Was I out of status from date of initial entry on a B2 visa (July 2003) or from the date of denial for the I-130/I-485? Of course the case automatically went to deportation court but at which point I was gone.

It was a long time ago and if a 3 year ban was issued then no problems but if it is a 10 year one... Please advise! Many thanks.

[ShirahBet 42]

3 years if the overstay was more than 180 days but less than a year. 10 years if the overstay was over one year.

[NigeriaorBust 4,088]

Wouldn't you find out when you apply for a new visa , your overstay of any days means your can't VWP so you need a new visa

[ShirahBet 42]

Wouldn't you find out when you apply for a new visa , your overstay of any days means your can't VWP so you need a new visa

That's a lot of money to spend to determine that you can't come into the country. A lot of people want to know ahead of time whether or not they're subject to a ban so they can either wait it out or apply and file a waiver.

[Boiler 48,209]

He was suggesting applying for a visitor visa. Not a lot of money.

The exact dates would help but I can not see how the overstay was not longer than 6 months.

[aaron2020 11,652]

The OP most likely has a 10 years ban. The rough calculations are close.

OP came to US in July 2003. The maximum allowable time is 6 months on a B-2 visa. This means when the I-130/I-485 was withdrawn in 2005, his time from the expiration if the B-2 to him leaving are days of unlawful presence. That's about a year or slighly longer. So, 10 years ban for staying more than a year after the B-2 expired

(I-94 for the sticklers).

Edited May 29, 2013 by aaron2020

[newacct 688]

The OP most likely has a 10 years ban. The rough calculations are close.

OP came to US in July 2003. The maximum allowable time is 6 months on a B-2 visa. This means when the I-130/I-485 was withdrawn in 2005, his time from the expiration if the B-2 to him leaving are days of unlawful presence. That's about a year or slighly longer. So, 10 years ban for staying more than a year after the B-2 expired

(I-94 for the sticklers).

But the time during pending AOS should not count.

[Boiler 48,209]

Why not?

[aaron2020 11,652]

But the time during pending AOS should not count.

Why? The case was was withdrawn.

When an AOS is denied, withdrawn, or abandoned, the time while the AOS is pending is all days of unlawful presence. The reason is to prevent people who do not qualify to successfully adjust to have a grace period with a bad application. So, successful AOS equal authorized time. Unsuccessful AOS equals no protection from accumulating days o unlawful presence.

[newacct 688]

Why? The case was was withdrawn.

When an AOS is denied, withdrawn, or abandoned, the time while the AOS is pending is all days of unlawful presence. The reason is to prevent people who do not qualify to successfully adjust to have a grace period with a bad application. So, successful AOS equal authorized time. Unsuccessful AOS equals no protection from accumulating days o unlawful presence.

It says here:

Note that, if the application is properly filed according to the regulatory requirements, the applicant will not accrue unlawful presence, even if it is ultimately determined that the applicant was not eligible for the benefit in the first place. The accrual of unlawful presence is tolled until the application is denied.