3 Year Ban or 10 Year Ban on my Mother's Entry??

[visab2visa]

Hello,

My mother came to visit me from India, Hyderabad (State: Telangana) to the USA on a visitor visa in October 2014. We applied for an extension of her visitor visa and extended it to March 2015. Her I-94 expired in March 2015. My mother overstayed her visa after that because I had a serious medical condition and needed my mother's presence. After my medical condition was resolved through surgery, we filed for a green card adjustment application for my mother in November 2015. I think my mother had unlawful presence from March 2015 to November 2015 which is 8 months. I have consulted with many immigration lawyers and almost all of them who have given me two different takes:

1) Some immigration lawyers have told me: My mother was in valid status from the time her adjustment was filed in Nov 2015 until she left the US in June 2016. Her adjustment was denied as abandoned after she left the US in June 2016. At that time we felt like we had no choice but to abandon my mother's green card because my mother had a medical emergency and we were not able to find doctor's here in US who were able to diagnose her condition. Some attorneys have told me my mother leaving June 2016 triggered a 3-year ban starting June 2016 which should now be resolved as of June 2019 since that covers the 3 years already.

2) Some other immigration lawyers have told me the opposite! They said that since my mother's green card was abandoned, all of the time from when her adjustment was filed in Nov 2015 until she left the US in June 2016 is now also considered unlawful. I think that is really unfair. I think it should still be considered lawful because she was undergoing her green card process so it is really unfair if that time is now suddenly considered unlawful. I hope it is not.

No one has given me a straight answer to this. 3 year ban or 10 year ban?? Can anyone advise me?

[newacct]

She does not accrue "unlawful presence" while she had a properly-filed Adjustment of Status application pending, even if it is ultimately denied or abandoned. So she left after accruing about 8 months of unlawful presence, triggering a 3-year ban, which is now over.

See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(3)(A) (they are still in the process of incorporating the AFM into the USCIS Policy Manual, so they just have a huge PDF dump of chapter 40 here, but it is more convenient to look at the archived copy of chapter 40.9.2 here; the particular section is here:

Note that, if the application is properly filed according to the regulatory requirements, the applicant will not accrue unlawful presence, even if it is ultimately determined that the applicant was not eligible for the benefit in the first place. The accrual of unlawful presence is tolled until the application is denied.

The Department of State's Foreign Affairs Manual, 9 FAM 302.11-3(B)(1)(b)(5), says similarly:

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

(5) (U) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);