Obama returns to immigration issue - Page 3

jamesp · 03-25-2013, 09:39 AM

If you were admitted with a 'duration of status' stamp on your I-94, you don't start to accrue unlawful presence even when you become out of status. You begin to accrue unlawful presence starting from the day when an Immigration Judge or an adjudicator formally finds out that you are out of status. Technically, now that you have applied for DACA, if in the worst case your application isn't approved, you will begin to accrue 'unlawful presence' starting from the denial date. All these years you never accrued a day of unlawful presence unless you've applied for some immigration benefit at the USCIS, received a notice to appear letter or you were in front of an Immigration Judge since you've become out of status.

http://www.uscis.gov/ilink/docView/A...0-0-18383.html

Quote:

Example 3
An alien is admitted for “duration of status” as an F-1 nonimmigrant student. One year later, the alien drops out of school, and remains in the United States for one year after dropping out.
The alien’s status became unlawful when she dropped out of school. Neither USCIS nor an IJ ever makes a finding that the alien was out of status; therefore, she never accrues any unlawful presence for purposes of section 212(a)(9)(B ) of the Act. AFM Chapter 40.9.2(b)(1)(E)(ii) .
The alien eventually leaves the United States and returns lawfully as a nonimmigrant. While in nonimmigrant status, a Form I-140 is approved and the alien applies for adjustment of status. Because the alien failed to maintain a lawful status for more than 180 days during her prior sojourn, she is ineligible for adjustment under section 245(c)(2) of the Act, and section 245(k) of the Act does not relieve her of this ineligibility.
Under section 245(k) of the Act, the alien is still eligible for adjustment, since the prior failure to maintain status does not apply to make the alien ineligible under section 245(c) of the Act. Also, the alien did not accrue unlawful presence despite the prior unlawful status, and so the alien is not inadmissible under section 212(a)(9)(B) of the Act.

http://www.state.gov/documents/organization/87120.pdf

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Page 2 of 9
For persons who have been admitted for duration of status (DOS) (as is usually the case with aliens in A, G, F, J, and I visa status), unlawful presence will not accrue unless an immigration officer or immigration judge (IJ) or the BIA finds a status violation in the context of a request for an immigration benefit or a deportation proceeding in removal proceedings. Therefore, your belief that an alien violated his or her status in the United States is not, in itself, sufficient for an INA 212(a)(9)(B
) finding, unless the alien entered without having been inspected and admitted or stayed beyond the Form I 94 specified date.
Otherwise, only a finding of violation of status by the DHS or an IJ or the BIA can cause a period of "unlawful presence" to begin.

Quote:

Originally Posted by Sonawabich

I did not know that. An
d Yes I had D/S on my I-94. Do you have link to more info?

natalie2288 · 03-25-2013, 02:40 PM

Quote:

Originally Posted by jamesp

If you were admitted with a 'duration of status' stamp on your I-94, you don't start to accrue unlawful presence even when you become out of status. You begin to accrue unlawful presence starting from the day when an Immigration Judge or an adjudicator formally finds out that you are out of status. Technically, now that you have applied for DACA, if in the worst case your application isn't approved, you will begin to accrue 'unlawful presence' starting from the denial date. All these years you never accrued a day of unlawful presence unless you've applied for some immigration benefit at the USCIS, received a notice to appear letter or you were in front of an Immigration Judge since you've become out of status.

http://www.uscis.gov/ilink/docView/A...0-0-18383.html

http://www.state.gov/documents/organization/87120.pdf

This makes a lot of sense, now I understand why Gaby Pacheco was able to renew her 7-year expired student visa; because she never really accumulated unlawful presence. But how was she able to get daca? Was she under deportation proceedings later?

Sonawabich · 03-25-2013, 03:06 PM

Thanks JamesP

My case is more complicated that I thought. I wonder exactly what is holding up my DACA. Could it be the fact that I was not in unlawful status. I guess denial would straighten up that issue.

jamesp · 03-25-2013, 04:49 PM

hi Sonawabich,

please read the links i sent carefully. You are 'Out of status' - which is analogous to 'Unlawful Status' but you are NOT accruing 'Unlawful Presence'.

There is a clear distinction between 'Unlawful Status' and 'Accrual of Unlawful Presence'.

Quote:

Originally Posted by Sonawabich

Thanks JamesP

My case is more complicated that I thought. I wonder exactly what is holding up my DACA. Could it be the fact that I was not in unlawful status. I guess denial would straighten up that issue.

Sonawabich · 03-25-2013, 05:28 PM

*sigh*

Thanks again JamesP.

dauser · 03-26-2013, 12:13 AM

Quote:

Originally Posted by DA User

I predict CIR will pass this month.

It won't.

SK18 · 03-26-2013, 12:22 AM

Quote:

Originally Posted by dauser

It won't.

Lol wtf. DA User's alter ego?

VeryNicePerson1 · 03-26-2013, 08:59 AM

Quote:

Originally Posted by SK18

Lol wtf. DA User's alter ego?

Wtf...haha...lol...

Pianoswithoutfaith · 03-26-2013, 08:48 PM

hahahawhahhahahahaha

DA User · 03-27-2013, 12:53 AM

Quote:

Originally Posted by dauser

It won't.

What makes you think this?

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Obama returns to immigration issue - Page 3