IMMIGRATION AUTHORIZED STAY
If you received your Permanent Residence Card through marriage or the million-dollar investment section (EB-5), and do not file the REMOVAL OF CONDITION I751 (marriage) or I829 (investment) form as you should (because your Green Card is considered conditional), Unlawful Presence accrues. However, if the government accepts a late filing (have an immigration law firm help in this case, perhaps a legal brief in support of why), then you are back in status and there is no Unlawful Presence.
The filing of 245(a) or (i) Adjustments of Status and Section 249 Affirmative Registry applications do not lead to Unauthorized Stay situations and are actually considered a period of stay authorized by the AG (Attorney General) , even if your I94 date has passed. However, do not step foot outside the country. KEY: If you had an unlawful stay before filing the case, it applies toward the 180-365 day overstay situation.
Other Situations Dealing with Immigration Authorized Stay
Another situation to be aware of is unlawful presence and the filing for permanent residence. This is where rumors are going to hurt people who do not have an immigration law firm help them with a case. Why? Some time ago, if a person entered legally and then overstayed their immigration visa, (meaning they accrued unlawful presence) then met and married a US citizen, they would be fine. As long as they did not leave the country during the period of unlawful presence, there would not be an issue most of the time and they could still obtain Permanent Residence.
Current Trends in Authorized Stay Immigration Provisions
There is a new trend that immigration law firms are witnessing. In San Diego, for example, where we have one of our offices, immigration law firms are finding that the person is not receiving Permanent Residence but is being sent outside the country to an Embassy for adjudication. What’s the problem with that? Well, under IIRIRA, if you overstayed by 6 months you are subject to a 3-year bar and if you overstayed by a year you are subject to a ten-year bar and you will have to file an Extreme Hardship waiver to be able to return. The bigger question is whether the immigration law firm determines that you even qualify for the waiver in the first place.
Once you file your case, though, you are authorized until your case is approved, denied, renewed, or appealed at the BIA (Board of Immigration Appeals) level. KEY: Appeals filed at the at Federal Court do not stay the time. This section does not apply to children and spouses who are subject to battery or extreme cruelty and you can show a relationship between their stay and the cruelty. Special rules apply and you can contact us to ascertain if you qualify 1-877-223-4684.
Authorized Stay & Adjustment of Status
If you file for Adjustment of Status, or the Permanent Residence card to obtain US Residence, you are not in unauthorized stay as long as your case has not been decided and you did not work without authorization. In other words, you are in authorized stay until your case is decided.
Say you enter on a B-1 visitor for business or B-2 visitor for pleasure. You file a nonfrivolous case for an extension before the first stay expired. Of course, your I-94 has expired and it has been 3 months since you heard from the USCIS. You are considered to be in authorized stay. This is the case, even if it takes them more than 120 days (I will explain the 120-day rule shortly).
BUT if the case is ultimately denied, your unlawful presence starts from when your I-94 expired so be very careful it does not exceed six months! BUT that only applies if it was frivolous, not filed on time, or because you worked without authorization, otherwise you are fine and presence starts when the original case is denied. If you were a D/S (duration of status, such as F or J visa) then it only starts when the case is denied, EVEN if denied for being frivolous, untimely or due to unauthorized employment.
As to the 120-day rule, 8 USC (United States Code….the federal laws) Section 1182(a)(9)(B)(iv) states that the 3-year bar timeline is tolled (=stopped) for 120 days if you were lawfully paroled (they let you in) or admitted (you gained a status) , filed a legitimate case before your status expired, and did not work without authorization. There are arguments both ways as to whether the case should ultimately be approved or not. Immigration waivers and immigration appeals may be considered at this point, however, it is advised that you speak to a professional immigration lawyer in order to determine your circumstances. KEY: The bars do not count the time cumulatively. In other words, if you stayed 3 months this year and 3 months next, they are not added together.
KEY: Immigration waivers and immigration appeals are possible if you are an immigrant and the spouse or son/daughter of a citizen and can show extreme hardship. For example, your spouse is a citizen, your children are the step-children of a citizen and they qualify to make this argument. It is called a 601 immigration waiver (please do not simply fill out the form without consulting a lawyer; a legal brief can make all the difference in the world).