Immigration Site

We had our interview today. The whole experience was a nightmare. Our interviewer was running about 1 Ѕ late since we were the last couple to be interviewed that day.
Anyway, the bigger problem –
I’m a USC. I had an employment based green card and I had H1B visa before that. We’ve got married with my wife before me filing I-140 , therefore we were allowed to file I-485 for both of us. My wife was on H4 at that time. I’ve got my AOS approved and she got hers denied because she had 187 days of unauthorized stay.
This may get tricky here but here is my wife’s timeline
- Came to US on B1 visa October 2000
- B1 extension approved through July 11,2001
- Applied for F1 on June 28,2001 valid for DOS
- I-20 form shows April ,5th, 2002 as end of study
- Her diploma however is dated January 14th, 2002
- Applied for H4 on July 9, 2002
- H4 approved on September 18th, 2002
INS claimed that she had 90 days gratis period from the date she got her Diploma, plus 180 days allowed by law, plus 7 days of unauthorized stay before her H4 approval. Bottom line is she had 187 days of unauthorized stay and she couldn’t adjust status under 245(c). We received their final decision in Feb, 2006. No appeal was allowed.
Today, the interviewing officer raised the issue again. We traveled to Mexico for a week, while my wife’s AOS was pending. She had her AP of course. That was back in 2005. The IO claims that my wife has triggered the 3/10 year ban at that time because she had already accrued 187 days of unauthorized stay.
My wife never left the country after her AOS was denied in 2006, and she entered the country legally using her AP when we came back from Mexico.
Now, the IO asked us if we can get a letter from the school that her studies did not actually end on January 14th, 2002 as stated on her diploma, but she was engaged in school activities till April, 5th 2002 as listed on her I-20
I’m not sure if the school will issue such a letter. We will try tomorrow, but I still don’t think that the IO is correct.
Any thoughts?

The AP does not protect you against a ban from a previous overstay. Many people get trapped in this scenario: spouse is out of status or overstaying for 180 days or more, applied for AOS and AP, USCIS approves the AP despite the overstay/out of status, spouse leaves the US for a brief vacation and comes back and the AOS is denied. This is the reason why her AOS got denied in 2006, because she left the US in 2005 after being out of status for more than 180 days.

The grace period following the expiration of an I-20 is 60 days. After that, she becomes out of status unless AOS is filed. In your case, your wife completed studies on Jan 14 2002, which means you should have applied for AOS within 2 months of that expiration. So the clock started on March 14 2002 and ended on Sept 18 2002 when she got her H4 status, a total span of 6 months and 4 days were out of status.

Did your wife have her H4 when she was adjusting her status? If yes then she was not of status when she left the country for Mexico. The ban would not apply, because her out of status had been ended by the grant of the H4.

You should get a lawyer and argue that fact. Good luck.

Guys, please clear something out for me. I am just learning so I really dont have any beneficial advice.

But since the husband is USC. Why does it even matter if the wife was out of status in the past. Arent immediate relative already forgiven for being out of status?

Someone pls clarify?

Yes you are right. Spouses of USC are forgiven for overstays and out of status issues. HOWEVER, they are not forgiven for bans. In this case, the non USC spouse left the US for Mexico while being out of status in the past. This triggered the ban. In the eyes of the USCIS, even though she had a valid H4 when she left the country for Mexico with the AP the ban was still triggered.

If the non US spouse had instead remained in the US after being out of status for more than 180 days, then yes her AOS would have been granted if everything else was ok.