NON-IMMIGRANTS & IMMIGRANTS
NON-IMMIGRANTS & IMMIGRANTS
NON-IMMIGRANTS
A non-U.S. citizen applying for an extension of status or change of status will be considered to be here legally until a decision is made regarding the application, as long as, the applicant did not perform work without authorization, and the applicant files a legitimate and timely case. The clock on unlawful presence, giving rise to issues of being barred from the country, does not begin until a determination is made, even if the government takes more than 120 days (this rule will be discussed below) to decide the case. Now, if the case is denied, the unlawful presence of a non-citizen will be deemed to have begun on the expiration date of the last I94 the non-citizen completed, but this will only happen if the case filed by the non-citizen is frivolous, untimely, or if the non-citizen worked without authorization. If none of those three things are applicable, the non-citizen may depart during the change of status or adjustment of status without being subject to the three and ten year bars.
People with an F or J visa (student visas) often have D/S or “Duration of Status” stamp on their visa. Persons in this category are not unlawfully present unless the USCIS or a judge determines that the duration of their visa ended. Interestingly, this is applicable to Canadians who cross the border into the United States but are not offered an I94, so it is important that they keep proof of their time of entry into the country.
If a non-ctizen files for a change of status, as long as he or she does not work without authorization and a decision has not been made on their case, he or she is authorized to stay until the time the case is decided. For cases that are untimely filed or where the non-citizen worked without authorization, unlawful presence begins on the date the original case is denied. If the non-citizen is an F or J visa holder, the unlawful presence begins when the case is denied, regardless of whether the case was untimely filed, filed frivolously, or the alien worked without authorization.
As mentioned previously, there is a 120-day rule in 8 USC section 1182(a)(9)(B)(iv) that states that the three year bar timeline is tolled (stops) for 120 days if a non-citizen is lawfully paroled (allowed in) or admitted (gained status), filed a legitimate case prior to the non-citizen’s status expiring, and did not undertake unauthorized work.
Some key points to understand is that the time bars do not count time cumulatively (added together), so if an alien stayed for 2 months in 2004 and 3 months in 2005, the times would not be added together, and waivers are available under INA 212(d)(3)(A).
IMMIGRANTS
A non-citizen that obtains a Green Card either through an EB-5 investment visa or a K visa for non-citizens who marry U.S. citizens, and fails file an I829 form for the investment or an I751 form for the marriage, will accumluate unlawful presence within the country. The government may decide to accept a late filing of the non-citizen’s case, placing the non-citizen back into status without any unlawful presence; however, this requires the help of a competent attorney and if this is your situation your are advised to seek an immigration attorney’s assistance.
If a non-citizen files a 245(a) or (i) Adjustment of Status and section 249 Affirmative Registry applications, he or she will not considered to be staying in the country without authorization, but will be considered to be staying with the authorization of the Attorney General, regardless of whether the non-citizen’s I94 has expired. So someone who marries a U.S. citizen could file for Adjustment of Status and wait for an entire year after their stay ends. If the non-citizen, though, has an unlawful stay prior to filing for the Adjustment of Status, that unlawful stay applies towards the 180-365 day overstay situation. Once the case is filed, however, the non-citizen is authorized to stay until the case is approved, denied, renewed, or appealed at the Board of Immigration Appeals level. Note, that appeals filed with the federal court system do not stay the time. This section is not applicable to spouses and children who are subject to battery or extreme cruelty and can demonstrate a connection between their stay and the cruelty.
Once a non-citizen files for Adjustment of Status, he or she is not staying without authorization providing that the non-citizen did not do unauthorized work or the case has not been decided upon yet. Basically, a non-citizen may stay until their case is decided. For example, a person enters on a B-1 visitor for business visa, and files a non-frivolous case for extension on their visa prior to the expiration on the original B-1. Although the B-1 holder’s I94 has expired and he or she has not received any information from the USCIS on their case, they are still considered to be in authorized stay. Even if it takes the USCIS more than 120 days to make a determination, the B-1 visa holder would still be in authorized stay status. However, if the B-1 holder’s case is eventually denied, the time for unlawful presence begins on the date the person’s I94 expired.
As mentioned previously, there is a 120-day rule in 8 USC section 1182(a)(9)(B)(iv) which states that the three year bar timeline is stopped for 120 days if an alien is lawfully paroled (allowed in) or admitted (gained status), filed a legitimate case prior to the alien’s status expiring, and did not undertake unauthorized work. Arguments can be made on both sides as to whether the application should ultimately be approved or not.
Some key points to understand is that the time bars do not count time cumulatively (they do not add together), so if a non-citizen stayed for 2 months in 2004 and 3 months in 2005, the times would not be added together, and waivers are available if the applicant is an immigrant and the spouse or child of a U.S. citizen and are able to demonstrate extreme hardship. This waiver is called a 601 waiver, and should be completed under the advice of an attorney.*
