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Am I considered unlawful?

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  • Am I considered unlawful?

    Hi to everyone. This is my first time writing after long time being a silent reader. I came to US on a B1 visa and it expired In 3 months. I filed for asulym after 7months. Now I am married to US citizen and i filed all my documents for green card marriage based. I got approved for advance parole. Now my question is, does the unlawful months pertain to me, or the rule of asylum applies ? ( the rule where u have to file within a year). I’m scared to travel what if they won’t let me back? Anyone has same experience? Please help

  • #2
    When the visa expires is irrelevant -- US visas are solely for entry. What matters is when your B1 status as given on your I-94 expires, which you have not indicated.

    You normally start accruing "unlawful presence" when you stay past the date on your I-94. But you do not accrue unlawful presence while a bona fide asylum application is pending, if you do not work illegally. So assuming your asylum claim is bona fide and you do not work illegally, the amount of unlawful presence you accrued is the length of time between when your I-94 expired and when you filed your asylum application, if any. You also do not accrue unlawful presence while an Adjustment of Status application is pending (which you have).

    If you accrue more than 180 days of unlawful presence (again, it's unclear that you have accrued any, but even if you did) and then leave the US, you trigger a ban. However, if you leave the US under a grant of Advance Parole, it does not count as a departure and thus does not trigger the ban, no matter how much unlawful presence you have. Your having filed asylum does not eliminate your unlawful presence or your having been out of status, but neither unlawful presence by itself without a ban, nor being out of status, affects Adjustment of Status in your category.

    You should generally have no trouble returning to the US on your Advance Parole, assuming your Adjustment of Status application was filed correctly.

    This is my personal opinion and is not to be construed as legal advice.

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