AOS through TPS

[madkat]

I am currently a TPS holder married to a LPR. I did not have a lawful status for quite sometime before getting TPS. We had filed for I-130 and now my date is current. What likely am I to succeed if we were to files for I485, especially with the new questionnaire?
Here are some relevant backgrounds:
- I had originally come to the US with F1 Visa in 1999 (I94 marked D/S). Because I took a semester off and never reinstated, I did not have a lawful status after completing the school (No OPT).
- I went outside of US in 2016 on AP and came back with a newly stamped I94.
- I did not have any work authorization when I worked on check from 2007 to 2015. This was declared in I130, and intend to declare on I485.
- I fall within the 9th circuit jurisdiction where travel through AP may be considered lawful entry.
Please share your thoughts/experiences.

[newacct]

I am currently a TPS holder married to a LPR. I did not have a lawful status for quite sometime before getting TPS. We had filed for I-130 and now my date is current. What likely am I to succeed if we were to files for I485, especially with the new questionnaire?
Here are some relevant backgrounds:
- I had originally come to the US with F1 Visa in 1999 (I94 marked D/S). Because I took a semester off and never reinstated, I did not have a lawful status after completing the school (No OPT).
- I went outside of US in 2016 on AP and came back with a newly stamped I94.
- I did not have any work authorization when I worked on check from 2007 to 2015. This was declared in I130, and intend to declare on I485.
- I fall within the 9th circuit jurisdiction where travel through AP may be considered lawful entry.
Please share your thoughts/experiences.

No, you can't AOS in this category (spouse of permanent resident is in the F2A category). You are barred from AOS in this category if you have ever been out of status, on the current stay or any previous stays. Although TPS counts as in status for AOS purposes, you said you were out of status before you got TPS, so that doesn't help you. Whether your circuit considers TPS to be a legal entry is irrelevant, since you already have a legal entry.

When your spouse naturalizes, you will be able to AOS since you will be in the Immediate Relative category and having been out of status doesn't matter for that category.

Alternately, you can leave the US and do Consular Processing abroad. You shouldn't trigger a ban upon leaving, since you had "D/S" on your I-94 so you couldn't stay past the date on your I-94, so you likely never accrued any "unlawful presence".

[madkat]

Alternately, you can leave the US and do Consular Processing abroad. You shouldn't trigger a ban upon leaving, since you had "D/S" on your I-94 so you couldn't stay past the date on your I-94, so you likely never accrued any "unlawful presence".

Thanks newacct for the response. Whether or not any unlawful presence was accrued, is it not discretionary to the interpretation of the policy by the local consulate? Or are they unable to reject (or worse, trigger a ban) my visa application based on the lack of lawful status during the gap I had? Also, how would unlawful employment play out in a consulate process? I am just trying to assess the magnitude of risk I would be taking if I decide to go abroad and give it a go.

[newacct]

Thanks newacct for the response. Whether or not any unlawful presence was accrued, is it not discretionary to the interpretation of the policy by the local consulate? Or are they unable to reject (or worse, trigger a ban) my visa application based on the lack of lawful status during the gap I had? Also, how would unlawful employment play out in a consulate process? I am just trying to assess the magnitude of risk I would be taking if I decide to go abroad and give it a go.

There is risk, because visa denials cannot be appealed (whereas AOS denials in the US can be challenged when you are put into removal proceedings in immigration court). There is no basis to deny an immigrant visa based on "lack of lawful status" or based on unlawful employment. The only questions of interpretation in your case are the interpretation of when "unlawful presence" starts accruing.

Consulates are supposed to follow the Foreign Affairs Manual, and 9 FAM 302.11-3(B)(1) discusses what constitutes "unlawful presence". In particular, 9 FAM 302.11-3(B)(1)(b)(2) says "For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding;" But again, if they don't follow it, I don't think there is much you can do. (I believe you could ask for an advisory opinion from LegalNet, since it is a question of law and not fact, but it is not binding on the consulate.)

[arbrts]

My husband has TPS and we are currently in the process of adjusting his status in the 9th district. Without parole. However, I am a US Citizen so that changes things a bit. We applied for AOS in October 2017 and just got his approval for his AOS work permit (he had one through TPS already) this week.

[madkat]

There is risk, because visa denials cannot be appealed (whereas AOS denials in the US can be challenged when you are put into removal proceedings in immigration court). There is no basis to deny an immigrant visa based on "lack of lawful status" or based on unlawful employment. The only questions of interpretation in your case are the interpretation of when "unlawful presence" starts accruing.

Consulates are supposed to follow the Foreign Affairs Manual, and 9 FAM 302.11-3(B)(1) discusses what constitutes "unlawful presence". In particular, 9 FAM 302.11-3(B)(1)(b)(2) says "For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding;" But again, if they don't follow it, I don't think there is much you can do. (I believe you could ask for an advisory opinion from LegalNet, since it is a question of law and not fact, but it is not binding on the consulate.)

Thank you to both of you for your responses.

If there were any formal findings, would they have disclosed with the FOIA (or any other application) I requested from USCIS and ICE in the last few years? And if there had been no formal finding, can that not be used as a ground of argument to move forward with AOS? Also at what points could I have potentially started accruing "unlawful presence"?

[newacct]

If there were any formal findings, would they have disclosed with the FOIA (or any other application) I requested from USCIS and ICE in the last few years?

I think you would know if you got a formal finding; it must have been sent to you.

The USCIS Adjudicator's Field Manual description of "unlawful presence" is slightly more in depth, and there they say that you have to have applied for a benefit to USCIS, and it was denied along with a finding that you were out of status. Under that interpretation, you wouldn't have started accruing "unlawful presence" unless you applied for something and got a denial. I don't know whether the Department of State manual is meant to be a different interpretation, or just tried to summarize it briefly and left out that part. The visa application would be handled by the Department of State, so you can't go by the USCIS manual.

And if there had been no formal finding, can that not be used as a ground of argument to move forward with AOS? Also at what points could I have potentially started accruing "unlawful presence"?

No. "Unlawful presence" isn't really relevant to AOS. The reason you can't AOS in F2A is because you were once out of status before you got TPS; that is true even if you didn't have "unlawful presence".

[madkat]

I just ran across this article:

https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors

Does this apply to my situation? How does this apply to my situation if I were to go for a Consular Processing (which I am giving a serious thought to)? If I were to not go for it until the termination of TPS, will I start accrual on Aug 9, 2018 or the date of TPS termination?

[azblk]

You do not accrue unlawful presence while on TPS.

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I just ran across this article:

https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors

Does this apply to my situation? How does this apply to my situation if I were to go for a Consular Processing (which I am giving a serious thought to)? If I were to not go for it until the termination of TPS, will I start accrual on Aug 9, 2018 or the date of TPS termination?

You will start to accrue unlawful presence when your TPS ends or Aug 9th 2018 which ever comes first.

[newacct]

I just ran across this article:

https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors

Does this apply to my situation? How does this apply to my situation if I were to go for a Consular Processing (which I am giving a serious thought to)? If I were to not go for it until the termination of TPS, will I start accrual on Aug 9, 2018 or the date of TPS termination?

TPS termination or I-485 denial, whichever is later. You don't accrue "unlawful presence" while under TPS or while AOS is pending.

You last entered on AP and were given an I-94 (for one year I believe, which is over), so I believe you would have started accruing "unlawful presence" if TPS is terminated and I-485 is denied, anyway, even without this change. Also, even without this change, someone on F or J would start accruing "unlawful presence" upon denial of a benefit you applied for along with the determination you are out of status, so I think even if you didn't leave on AP, you would start accruing "unlawful presence" upon I-485 denial (if TPS had been terminated), even without this change.

[azblk]

TPS termination or I-485 denial, whichever is later. You don't accrue "unlawful presence" while under TPS or while AOS is pending.

You last entered on AP and were given an I-94 (for one year I believe, which is over), so I believe you would have started accruing "unlawful presence" if TPS is terminated and I-485 is denied, anyway, even without this change. Also, even without this change, someone on F or J would start accruing "unlawful presence" upon denial of a benefit you applied for along with the determination you are out of status, so I think even if you didn't leave on AP, you would start accruing "unlawful presence" upon I-485 denial (if TPS had been terminated), even without this change.

no i-485 filed

[madkat]

You will start to accrue unlawful presence when your TPS ends or Aug 9th 2018 which ever comes first.

Do you mean whichever comes later?

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So if I were to go for Consular Processing before TPS ends, I would not have technically accrued unlawful presence then?

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In this case, TPS is ending after Aug 9, 2018.

[azblk]

Do you mean whichever comes later?

Yes

So if I were to go for Consular Processing before TPS ends, I would not have technically accrued unlawful presence then ? In this case, TPS is ending after Aug 9, 2018.

Yes that is correct - you would have no unlawful presence.

On a side note - can you go to your home country on TPS? I thought that TPS means you can not go home at this time but do not qual for asylum.

[madkat]

On a side note - can you go to your home country on TPS? I thought that TPS means you can not go home at this time but do not qual for asylum.

Yes, you can. I personally have travelled with TPS AP in the past and I know few others who have. USCIS also declares of the opportunity in https://www.uscis.gov/humanitarian/t...otected-status

[azblk]

Yes, you can. I personally have travelled with TPS AP in the past and I know few others who have. USCIS also declares of the opportunity in https://www.uscis.gov/humanitarian/t...otected-status

ok i was just curious. I know asylees can not go to home country while on asylum and I had thought TPS was similar.