Unlawful presence question

[sum4042 9]

My husband came here in November and we got married within the 90 days, so we married early February. We are almost done with the AOS packet, but we are panicking a bit because of one of the questions. 
 

“Since April 1, 1997, have you been unlawfully present in the United States? You were unlawfully present in the United States if you were present in the United States after the expiration of the period of stay authorized by the Department of Homeland Security (DHS) Secretary or were present in the United States without being admitted or paroled.”

 

Do we tick yes on this Inadmissibility question? It scares me so much because we were wanting to do everything the right, legal way. I’m so confused because we thought the only thing we needed to do was marry within 90 days then adjust status whenever (we have been gathering documents the last few months and finally have gotten around to piling them all up now.) I am being told mixed things, some people are saying to tick yes but then others are saying no, both having explanations that make sense to me. Also I think one of the questions are “Have you violated the terms or conditions of your non immigrant status?” Which I’m hoping we didn’t do either? 
 

We were going to turn in the AOS packet today but last minute im finding out about this stuff.. genuinely had no idea about there being a deadline or filing within 90 days if this is the case. Also can we get denied for this? Like did we mess everything up? I’m so lost I can barely sleep at night, thank you so much to anyone that can help! Or any advice if anyone has been in a similar situation.

[Crazy Cat 44,287]

He has been out of status since day 91 after entering the US. Once he files a proper I-485, he will be granted "authorized stay" until the I-485 is adjudicated.  "Authorized stay" is not a legal status, but it prevents accruing further unlawful presence. You won't get denied for this.

Unlawful presence is NOT a bar to adjustment of status for immediate relatives of US citizens.  Get that I-485 filed ASAP!!!

Edited Saturday at 01:10 PM by Crazy Cat

[Crazy Cat 44,287]

9 minutes ago, sum4042 said:

I’m so confused because we thought the only thing we needed to do was marry within 90 days then adjust status whenever (we have been gathering documents the last few months and finally have gotten around to piling them all up now.)

Marriage to a US citizen confers NO immigration rights or rights to remain in the US.  As soon as he files a proper I-485, he will be in authorized stay.  Until he does that, he is technically subject to detention and deportation.  After filing the I-485, he should carry a copy of the I-485 receipt notice with him.

Edited Saturday at 12:57 PM by Crazy Cat

[Crazy Cat 44,287]

There is never a benefit in waiting to file an I-485.  Filing the I-485 allows a person to apply for an EAD, it allows a person apply for Advance Parole, and upon approval starts the 3 year clock for a citizenship application. 

[smilingstone 534]

1 hour ago, sum4042 said:

Also I think one of the questions are “Have you violated the terms or conditions of your non immigrant status?” Which I’m hoping we didn’t do either? 

 

He has violated those terms, so you have to tick YES, but the overstay alone isn't grounds for inadmissability. Plenty of accounts on here have had successful AOS with overstays. It just isn't the right, or safe, way to do it.

 

1 hour ago, sum4042 said:

Since April 1, 1997, have you been unlawfully present in the United States? You were unlawfully present in the United States if you were present in the United States after the expiration of the period of stay authorized by the Department of Homeland Security (DHS) Secretary or were present in the United States without being admitted or paroled.

 

Also YES.

 

[smilingstone 534]

Also, you could always write a supporting statement, signed by both of you, explaining what happened.

[Crazy Cat 44,287]

35 minutes ago, smilingstone said:

but the overstay alone isn't grounds for inadmissability.

Yep.  If adjusting status through a Green Card holder, it would be.

Edited Saturday at 02:43 PM by Crazy Cat

[Crazy Cat 44,287]

42 minutes ago, smilingstone said:

Also, you could always write a supporting statement, signed by both of you, explaining what happened.

That is a good idea if asked to explain.....

Edited Saturday at 02:53 PM by Crazy Cat

[TBoneTX 47,407]

After filing, your husband's status would be "applicant for Adjustment" -- or, more concisely, "Adjustment applicant."  A lawyer told me of this terminology when Mrs. T-B. was in this phase.

17 hours ago, Crazy Cat said:

After filing the I-485, he should carry a copy of the I-485 receipt notice with him.

Absolutely accurate.  He should carry the most recent documentation with him at all times.  See this thread, which can apply to more than airports:

http://www.visajourney.com/forums/topic/562879-cbp-at-tsa-airport-checkpoints-why-theyre-there-how-best-to-handle/#entry7784682

Edited Sunday at 06:49 AM by TBoneTX