kinu4real

My priority date is April 3rd 2001. Interview completed Fe 2nd 2011 and waiting for PD to be current again.Will PD ever go back to what it was b4 or we all have to wait this retrogression out?

I need some advise pls.... I interviewed at USCIS local office in my state back in February and was told case is approvable and will hear back from them in a week or two and i remember the IO saying if your priority date is current. Now it's March and still did not hear anything or any mail from then and i believe its cos of the retrogression. Now the question is this, will they just mail the Green card once my priority date becomes current again or will there be another interview and Biometrics since the last biometric done would have expired by the time the date becomes current again. My priority date is April 15th 2001 and its my brother that filed for me.

INA section 212(a)(6)(B):

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) ) prior to the commencement of proceedings under section 235(b)(1) or section 240 , and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act

This is the ban I was referring to. If you are unlawfully present in the US for more than 180 days and less than one year then you have incurred a 3 year ban from the US. If you are unlawfully present for more than a year then you have incurred a 10 year ban. The ban kicks in on the date you leave the US.

Note that there is nothing in section 212(a)(6)(B) that carves out an exception for someone who is eligible to adjust status under 245(i). There is also nothing in section 245(i) that says an eligible alien is not subject to the ban imposed by 212(a)(6)(B). The clause you pointed out simply says that you won't lose your eligibility to adjust status under 245(i) for brief, casual, or innocent absences from the US. It doesn't grant you blanket amnesty from all of section 212. In fact, it specifically says you must be "admissible" to the United States, and section 212 says you are inadmissible because you left the US with enough accumulated unlawful presence to trigger the ban.

Title 8, section 245a.18 of the Code of Federal Regulations specifically describes how INA section 212 affects someone who is applying for adjustment of status under INA 245(i). It describes which sections of INA 212 specifically don't apply, and which sections cannot be waived. All of the other sections which are eligible for a waiver require that a waiver be submitted. The sections that don't apply are related to labor certification and possession of valid visa or travel documents (this is what permits someone who entered the US illegally to apply). There is no specific exception for 212(a)(6)(B). You should have needed an I-601 waiver to adjust status.

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=8cfr

Now, I'll be the first one to admit that I may not be the brightest bulb in the room, but I've read sections 212 and 245 of the INA many times, and I think I understand them reasonably well. If there's an exception that would apply to you that would have allowed you to accumulate more than 180 days of overstay and leave the US without triggering the ban then I'm not seeing it.

There are countless stories on this site by people who have done precisely what you've done and they were not allowed to reenter the US because of the ban. There also stories of people who were not caught by CBP when reentering the US, but were caught by USCIS when they tried to apply for an immigration benefit. How you managed to do it is still a mystery to me, unless you are Canadian as was suggested in your other thread.

Now, other than reading and understanding the law, the regulations, and the policies of the agencies involved, I'm not sure what else we could do to ensure that we're giving educated advice.

I would also still appreciate if you would ask your attorney where the exception lies in the law.

At first i didn't want to reply cos i got tired of trying to explain myself and i am not going to argue with anyone anymore cos it's there clearly on USCIS website and i spoke to at least 4 lawyers b4 i settled for the one i used and all told me about the brief/casual absence and what you are telling me is that i got approved cos the IO that interviewed me is either stupid or ignorant of the immigration law or i am lying. Which ever is right, i know i got approved and i will not respond to anything again, it's a free world and you can believe whatever you want, it's ok. I still stand by my original post that if anyone is not sure about anything, pls don't confuse us. Everyone's case is different

Well,obviously your frustration becomes rudeness then! Jim has contributed an enormous amount of good, useful information to this website FREE of charge and in his own FREE time. You are the one who is jumping on posts now! If you are not satisfied with the information here-look elsewhere! Sometimes mistakes are made. Like Jim said, we are not lawyers. Everybody contributes what they can to make this website what it is and if you are more informed on a certain matter-share it by all means, but in a non criticizing manner!

Now i am getting irritated by people like you who takes side without reading very well. I only offered an advise b4 you and ur friend start to find faults with me. If he made a mistake all he needed to do was hey sorry i didn't know that and we would not be going back and forth on this and for your infomation i know you guys are not lawyers and even lawyers don't know all and some lawyers even mislead people. All i am saying is if you are not sure about anything or don't know it just say so and stop finding faults wt everyone else cos you have been on this site for a long time. If you are not satisfied wt my posts or advice then you jump on another site as well, this is a free site and it's a free world. I am not being rude but stating a fact.

I think you're coming off as quite rude, kinu4real. Nobody's jumped on your post, people are simply asking for clarification on what happened in your case so that in the future, they can AVOID giving false or misleading information to people.

I am not being rude in anyway. I get frustrated when people try to tell you something they know little or nothing about without checking facts.If you read my posts very well i said i am appealing to people to not say anything if they don't have experiences or know for a fact what they are advising people on. Read his post and you will see where he said he can quote a law as if he was sure and i was lying so that's why i said people should read very well b4 jumping on any posts and if he wanted to know more he could have just asked the facts and details about my case even though i had attached a previous thread to make people understand what this is all about.

I'm not saying that a brief departure from the US made you ineligible for adjustment under 245(i). I'm saying that leaving the US should have triggered a ban. Nothing in 245(i) says that this isn't the case. Perhaps you can ask your attorney to explain why there is an exception, and you can then share it with us as it would be immensely useful when advising people in the future. It would be helpful if he could cite the specific section of the law so that we can read and understand it.

None of us are immigration lawyers, and I'll readily admit when I'm wrong. There are many narrow exceptions in the law, and none of us (including me) know all of them.

Maybe i don't understand English anymore.... What do u mean by leaving the US should have triggered the ban? Is leaving not the same as brief/casual physical absence from the USA. I left US for some weeks and came back but did not trigger the ban cos it fell under casual/brief absence for Family issues since i went for my Marriage. My 1st post from the beginning is just to appeal to people giving advise to make sure they are talking from experience or a known fact and not just to give people like me unnecessary fear cos of bad advise. I am not trying to tell you anything b4 u jumped on my post and started quoting what u don't know or aren't sure of.

I've read the law. It's not "i-245" or "1-245". It's section 245(i) if the Immigration and Nationality Act. That section of the act doesn't say anything about temporary absences for family matters. It says someone who entered the US, legally or illegally, was physically present in the US in December of 2000, and had an immigrant visa petition filed on their behalf by April of 2001, is eligible to adjust status by paying a $1000 fine, in addition to the filing fees. Section 245(i), also called the LIFE Act, is an extension of Reagan's amnesty program. There are no provisions in the LIFE Act that I'm aware of that waive the penalties that are imposed when you leave the US with an accumulated overstay, as defined in section 212 of the INA. In fact, section 245(i)(2)(A) specifically says that an alien must be eligible and not inadmissible in order to qualify for adjustment of status.

Please quote the section of the law I'm missing.

I just went to the website and i lifted this from the site under 245(i). I called it i-245 cos that's what i am used to and it's the same as far as i am concerned. Pls Check below especially part 3B. I am 100% sure i read somewhere on the website as well that specifically said innocent absences like family issues which can be interpreted differently based on the IO interviewing you so go make ur research very well. I will post the other places it mentioned brief/casual absences once i find them. I read it myself, my lawyer also showed me and other people did as well. The immigration officers are not dumb and would have refused if that was the case. I have read of people on this site that were rejected cos they did not qualify for the 245(1) cos they left for more than can be counted as brief or casual absence and moreover the IO that interviewed me has been with USCIS for over 10yrs so he must know what he was doing.

3) Continuous physical presence since enactment.-

(A) In general.-The alien must establish that the alien has been continuously physically present in the United States since the date of the enactment of this section.

(B) Treatment of brief, casual, and innocent absences.- An alien shall not be considered to have failed to maintained continuous physical presence in the United States for purposes of subparagraph (A) by virtue of brief, casual, and innocent absences from the United States.

© Admissions.-Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for adjustment of status under this subsection.

(4) Admissible as immigrant.-The alien must establish that he-

(A) is admissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2),

(B) has not been convicted of any felony or of three or more misdemeanors committed in the United States,

© has not assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion, and

I can quote the law that says you should have received a ban for leaving with so much accumulated overstay. Can you quote the source that says you can leave temporarily for family issues and return without triggering the ban? I want to know if there's something we missed, or if you managed to slip one past USCIS.

I read on USCIS website under i-245. I did a research myself after my Lawyer told me about the temporary absence thing. So go to the website and read it as well. You said something about accumulated overstay and i wondered why people pay the fine of $1000 which i also saw on the website if you have an approvable petition. Your question shows you probably don't know anything about 1-245 which is for people with approvable petition who are trying to adjust status without leaving the US to interview at their country's consulate even though they have overstayed and are now illegal or not but were inspected into the country at port of entry and were present in the USA on or b4 12/21/2001. So go read the Law very well.

Wait a minute. People come here and ask for advice based on other peoples experience and knowledge. Just because something did, or did not happen to you, does not make that advice or experience invalid.

My wife and I went fully prepared for our AOS interview, a ton of documents and photos. We were confident because of what we had read and learned here. The fact that OUR interviewer didn't look at any of our documents and only asked one question is irrelevant. MOST people get asked for lots of relationship proof. Just because we weren't doesn't make the advice to be prepared irrelevant.

This is great forum and we should appreciate it. You want a lawyer's advice, hire one?

My reply to you Dave, read very well b4 you reply to any thread. I never said anything about other peoples experience or tried to discredit the advise people give on this website. All i said is that if you are not sure about a question being asked or don't know the answer or can't give any good advice based on past experience, please don't post or offer any advice. So pls read very well b4 jumping on any post.

Hello Everyone... I had my interview yesterday on a family based visa petition and just wanted to let everyone know that i appreciate this website but at the same time to tell people if you don't know anything about a question being asked by members please don't say anything at all rather than misleading people. I am saying this because i had asked questions about my issues( see below link) and everyone said you will not be approved cos u triggered a 10 yr ban for leaving the country but i did my own research where it says you can leave temporarily for family issues(Please read the below link to understand the full story) but i went and was approved with my wife. We were not even asked too much questions other than where did u marry, how many kids u have and that was it. Please Please Please people, if you don't know anything or you are not sure, stop giving people unnecessary fear and panic for nothing.

Thanks.

http://www.visajourney.com/forums/topic/287375-questions-about-245i-and-aos-interview/page__p__4385761__fromsearch__1#entry4385761

I posted the below question some few hours ago and it was moved out of the forum cos someone believes they know all without asking questions. The summary is, my brother filed for me back in April 2001 and the petition was approved in March 2009 and sent to NVC. Visa became available in August 2010 and i called NVC to Adjust status and petition sent back to USCIS. Now could someone with an answer please help on the below question.

Thanks.

Hello Every one. Hope Y'all had a wonderful Xmas and New Yr. I have a quick question from any experienced member. My Brother filed for me and i have an interview for month end and was wondering if he has to be there with me as the petitioner cos the letter for interview did not state he has to be there but my lawyer says he has to. Pls advise cos i don't want him wasting his money to fly down from Arizona where he works if he does not have to be there.

Thanks.

THANKS FOR THE REPLIES SO FAR. BY THE WAY I NEED TO ADD THIS IS AN ADJUSTMENT OF STATUS INTERVIEW AND DON'T HAVE TO GO TO THE CONSULATE OVERSEAS AND NOPE THE LAWYER DID NOT GIVE ANY CONCRETE REASON WHY HE HAS TO BE THERE OTHER THAN IT'S GOOD FOR HIM TO BE THERE.

Hello Every one. Hope Y'all had a wonderful Xmas and New Yr. I have a quick question from any experienced member. My Brother filed for me and i have an interview for month end and was wondering if he has to be there with me as the petitioner cos the letter for interview did not state he has to be there but my lawyer says he has to. Pls advise cos i don't want him wasting his money to fly down from Arizona where he works if he does not have to be there.

Thanks.

Hello All,

I asked this same question couple of days ago and didn't get the desired answer cos only one person responded to the thread and this time hope someone will be able to help out and explain in details if i would have problems or not.My brother filed for me in April 2001 and my receipt date was on or before April 30th 2001 so i qualify for the 2451(Grandfathered). My Case was sent to NVC after i became current and thereafter i called to do AOS and my case was transferred back to USCIS, now my question is this..... I entered the US on a tourist Visa in 1996 and have been living here since then but i left in 2000 for 2wks, also left in July 2002 to get married and came back after a month, so have i lost my grandfathered status for leaving briefly in 2002 and will i have problems during interview?. EAD already approved and received but yet to be called for interview and was just curious. Pls anyone wt good advice will be highly appreciated.

Thanks All.

Hello All,

I hope someone will be able to help out and explain in details if i would have problems or not.My brother filed for me in April 2001 and my receipt date was on or before April 30th 2001 so i qualify for the 2451(Grandfathered). My Case was sent to NVC after i became current and thereafter i called to do AOS and my case was transferred back to USCIS, now my question is this..... I entered the US on a tourist Visa in 1996 and have been living here since then but i left in 2000 for 2wks, also left in July 2002 to get married and came back after a month, so have i lost my grandfathered status for leaving briefly in 2002 and will i have problems during interview?. EAD already approved and received but yet to be called for interview and was just curious. Pls anyone wt good advice will be highly appreciated.

Thanks All.