Skipping conditional green card

[geowrian 22,336]

Bingo - beat me to it.

 

A period of authorized stay does not prevent removal. But being present in the US with a period of authorized stay and no legal status is not cause for removal in itself. They can't just deport you while you have a properly filed AOS application - they need another cause to do so.

[midwinterrose 263]

57 minutes ago, username_taken said:

It actually states (and you highlighted it in blue so I dont understand how you could misquote it?) It states MAY be subject to removal proceedings. A K visa holder who submits an AOS is not subject to removal. 

I was actually paraphrasing the line before what I highlighted in blue: "[...] pending application or petition does not automatically afford protection against removal if the foreign national’s status expires after submission of the application."  Obviously they couldn't just pull up and throw you in a van and take you to the border, they would have to initiate removal proceedings and go through the whole process.  But it seems clear to me that this is stating that an AOS application does not automatically grant protection from removal if you are in unlawful status.  I'm not saying that every K1 whose I-94 has expired while waiting for a pending AOS automatically triggers active removal proceedings against them, just that it seems that a pending application does not provide them with any protection from having removal proceedings brought against them, on the basis that they are in unlawful status due to their lawful status having expired.

 

I guess my puzzlement here is that as far as I understand, an alien who crossed the border from Mexico without ever being inspected by CBP, therefore never having had lawful status is deportable based solely on that fact that they have no lawful status in the U.S.  That is the reason removal proceedings could be initiated against them.  The same would apply to someone who came legally on a student visa and entered into unlawful status by overstaying their visa and never filing for AOS, therefore never re-entering lawful status.  So why does no one seem to agree that a K1 who is currently in unlawful status is eligible to have removal proceedings brought against them solely on the basis that they are in unlawful status?  Why would they have to commit a crime in order for removal proceedings to be brought against them?  I understand that DHS/ICE is not going to bother going around deporting K1s (or other AOS applicants from other visa categories whose I-94s have expired while waiting for AOS) who are following the process and minding their own business, but isn't the fact that they are in unlawful status technically reason enough to initiate removal proceedings if they really wanted to?  I understand that the technicalities of the law are not necessarily going to be employed in the practical application of it.  I thoroughly searched USCIS' website and the CFR to try to find something assuring the legality of my husband's status during the pending AOS, (especially since we've followed the process to a T) but I've come up empty-handed.  I'm talking about the technicalities of what the law permits, not necessarily the practicality of how it is typically applied.

 

[Villanelle 4,121]

Because a K is an immediate relative after they marry and are filing a COS based on being immediate relative. They do not accrue unlawful presence while the COS is processing (as long as its approved at the end). In the examples that you gave the person IS accumulating unlawful presence and can be deported based on that. 

 

[geowrian 22,336]

24 minutes ago, radharose said:

I guess my puzzlement here is that as far as I understand, an alien who crossed the border from Mexico without ever being inspected by CBP, therefore never having had lawful status is deportable based solely on that fact that they have no lawful status in the U.S.  That is the reason removal proceedings could be initiated against them.  The same would apply to someone who came legally on a student visa and entered into unlawful status by overstaying their visa and never filing for AOS, therefore never re-entering lawful status.

Correct. They are unlawfully present in the US since they have no legal status nor authorized stay. This is a cause for removal.

 

Quote

So why does no one seem to agree that a K1 who is currently in unlawful status is eligible to have removal proceedings brought against them solely on the basis that they are in unlawful status?

If they haven't filed AOS yet, then they would also be unlawfully present and subject to removal. Realistically they would be told to file for AOS, but technically they can be removed.

 

If they have filed for AOS, then they are not unlawfully present due to the period of authorized stay. As such, they are not subject to removal just for being present within the US.

Edited April 28, 2019 by geowrian

[midwinterrose 263]

 

20 minutes ago, username_taken said:

Because a K is an immediate relative after they marry and are filing a COS based on being immediate relative. They do not accrue unlawful presence while the COS is processing (as long as its approved at the end). In the examples that you gave the person IS accumulating unlawful presence and can be deported based on that. 

 

 Unlawful presence is not grounds for deportation, it is only considered when deciding whether a bar to AOS or a bar to readmission to the U.S. in future is applicable.  Unlawful status is grounds for deportation.

 

Example 2 below describes my husband's situation as a K1 exactly.  

 

This is from the USCIS' Adjucators' Field Manual:

 

 

(2)  Distinction Between “Unlawful Status” and “Unlawful Presence ”  
 

To understand the operation of  sections 212(a)(9)(B) and  212(a)(9)(C)(i)(I) of the Act, it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (“period of stay not authorized”). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same.   
 

As discussed in  chapters 40.9.2(b)(2) and  40.9.2(b)(3)  of the   AFM   , there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. As a matter of prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending. In this sense, the alien’s remaining can be said to be “authorized.” However, the fact that the alien does not accrue unlawfu l presence does  not mean that the alien’s presence in the United States is actually lawful.  

 

 

Example 1

An alien is admitted as a nonimmigrant, with a   Form I-94   that expires on January 1, 2009. The alien remains in the United States after the Form I-94 expires. The alien’s status becomes unlawful, and she begins to accrue unlawful presence, on January 2, 2009. On May 10, 2009, the alien properly files an application for adjustment of status.

The filing of the adjustment application stops the accrual of unlawful presence. But it does not “restore” the alien to a substantively lawful immigration status. She is still amenable to removal as a deportable alien under  section 237(a)(1)(C)  of the Act because she has remained after the expiration of her nonimmigrant admission.

   

 

Example 2

An alien is admitted as a nonimmigrant, with a   Form I-94   that expires on January 1, 2009. On October 5, 2008, he properly files an application for adjustment of status. He does not, however, file any application to extend his nonimmigrant stay, which expires on January 1, 2009. The adjustment of status application is still pending on January 2, 2009.

On January 2, 2009, he becomes subject to removal as a deportable alien under  section 237(a)(1)(C)  of the Act because he has remained after the expiration of his nonimmigrant admission. For purposes of future inadmissibility, however, the pending adjustment application protects him from the accrual of unlawful presence.

 

----------------------

 

Above it states, "As a matter of prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending."  Obviously if you're a law-abiding person following the process and contributing to society, they are as a matter of course going to allow you to stay until your AOS is adjudicated.  That doesn't mean that they are obligated to, though.

 

 

P.S. OP, I really didn't mean to derail your thread, sorry!

Edited April 28, 2019 by radharose
spelling

[Villanelle 4,121]

I think we are just going around in circles..  

 

section 237(a)(1) says-

(a) Classes of deportable aliens
Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:

(1) Inadmissible at time of entry or of adjustment of status or violates status
(A) Inadmissible aliens
Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.

(B) Present in violation of law
Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title, is deportable.

(C) Violated nonimmigrant status or condition of entry
(i) Nonimmigrant status violators
Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 1258 of this title, or to comply with the conditions of any such status, is deportable.

(ii) Violators of conditions of entry
Any alien whom the Secretary of Health and Human Services certifies has failed to comply with terms, conditions, and controls that were imposed under section 1182(g) of this title is deportable.

 

 

The K visa is found here-INA 101(a)(15)(K)   which says-

(K) subject to subsections (d) and (p) 2 of section 1184 of this title, an alien who-

(i) is the fiancée or fiancé of a citizen of the United States (other than a citizen described in section 1154(a)(1)(A)(viii)(I) of this title) and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission;

(ii) has concluded a valid marriage with a citizen of the United States (other than a citizen described in section 1154(a)(1)(A)(viii)(I) of this title) who is the petitioner, is the beneficiary of a petition to accord a status under section 1151(b)(2)(A)(i) of this title that was filed under section 1154 of this title by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa; or

(iii) is the minor child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien;

 

So basically you have to violate your status. The K requires you to enter the US, marry in 90 days and file AOS. If you do that, you did not violate your status. If you sent your AOS after 90 days then yes- pros discretion prevents them from taking action. 

 

 

[junkmart 320]

On 4/26/2019 at 6:14 PM, PolskaKielbasia said:

Why? Is is that hard to memorize your SSN? The SSA explicitly advises against this.

No offense to the poster who carries around his SSC, but I think it may be generational. I remember my grandmother and grandfather both carried their SSC in their wallets, along with wallet size photos, etc.