jeffreyhy

Susanna,

It would depend on the length of overstay, not the mere fact of overstay.

Overstay is determined by the expiration date of the I-94, not the expiration date of the visa.

Regards, JEff

Hypertweeky

It seems like you already know the answer.. why did you ask then?
Anyway Good Luck!!!

MrBen

We didn't know whether we'd stay in the US or go to Canada. (The K1 was filed just in case we decided to live in the US.) Then we eloped during a visit, and knew that we had a few months to figure things out.

Now that we've taken the time to make a very solid decision, we're ready to file the paperwork for AOS. And I don't expect it to take more than a few days.

Yes, I know it would have been better to apply immediately, but we wanted to wait until we were 100% sure. It's a big decision!

MrBen

Because I've been told that I can't necessarily trust BCIS to give me perfect information. I figured I'd double-check it against people in the forum in case they had any contrary experiences to share.

I'm glad nobody has!

Hypertweeky

Hey that is totally true!
Never trust the miss information number
I wasn't trying to be mean, I think the medication I am taking don't let me think right
Anyway Good Luck!!!
Have a nice weekend!

jeffreyhy

Susanna,

You are in the USA and you are applying for adjustment of status? You do not have to apply for a police clearance.

After the USCIS has received your AOS application they will initiate whatever background checks they do transparent to you.

Regards, JEff

Alexj

<snip>My only
    > concern is the fact that I'll have gone beyond my 6 months by a week or
    > two by the time I file, that's all. And I hope it's not a big deal to
    > the gov't!
    >

I filed 2 years after we were married (this means I was out of status
for 2 years (or close to it)), and had no problems getting a green card
or doing my naturalization. We have been married 6 yrs now.

I personally would not use AP at all, but that is just me.

Alexj

lairdside

JEff,

I adjusted status from the VWP. A police certificate was on the list of required documents and at my AOS interview the document I had obtained from NSY was requested (they kept the photocopy I gave to them and added it to my file).

lairdside

Overstay is usually defined as time out of status.

There are in fact three different issues:

i) Time out of status
ii) Violation of status
ii) Unlawful presence accrued according to the IIRAIRA

Not necessarily the same thing.

lairdside

This quote from an article explains it quite well (and saves me having to type a lengthy reply ) A Canadian who enters under the circumstances described by the OP is usually in a similar circumstance to a student with a D/S stamp for the purposes of accuring unlawful presence. This is a SIMPLIFIED explanation of course.

Unlawful Presence Start Date
There is a difference between a "violation of status" "out of status" and "overstay (unlawful presence)."
Violation of Status occurs when a nonimmigrant takes action that is not within the scope of the visa category.
......- example: F-1 student working without authorization.

Out of Status occurs when a duration of status has expired, and/or when a "violation of status" occurs (and when such a determination is made by the US CIS).

......- example: H-1B specialist with an expired visa "status" (duration of status) document.
......- example: F-1 student working without authorization (violation of status) and a determination of violation made by the US CIS.

Overstay (Unlawful Presence) occurs when an individual is "out of status (expired duration of status)" (and if he/she does not have "authorized stay.")

......- example: B-2 tourist with an expired visa "status" (duration of status) document and who files an untimely
...........change of status application (and therefore does not have "authorized stay")

The period for unlawful presence (overstay) begins on:
1) The expiration date* of the visa "status" document (I-94 Arrival/Departure Card), or
2) status violation**, determined by an immigration judge, or
3) status violation**, determined by the US CIS during the course of adjudicating a benefit application.
*No date, but "D/S" on I-94 Arrival/Departure Card (typical "D/S" holders are F, M, J and I visa status holders).
For those who do not have an expiration date on the I-94 card, but "D/S" (duration of status), there can be no "unlawful presence," unless (2) or (3) above.
**Status Violation: i.e., unauthorized employment; for a student, a failure to pursue a full course load; for nonimmigrant worker, a violation of the terms of the particular visa.

Important: A status violation determination must be must be made by an immigration judge or the US CIS, for the individual to be considered to be unlawfully present. Therefore, even if a person is in "violation of status," he/she may not be considered as being unlawfully present -- unless there is a determination.
...
...
Students With "D/S"
A nonimmigrant student does not accrue unlawful presence unless a status violation determination has been made.
Students do not have an expiration date on the visa "status" document, but "D/S" (duration of status) on the I-94 Arrival/Departure Card (typical "D/S" holders are F, M, J and I visa status holders). Unless a status violation determination is made, there is no unlawful presence, even if there are status violations. Therefore, if a "D/S" student files for "re-instatement" to F-1 status, he/she may trigger the US CIS to make a determination that there is a status violation. If this determination is made, unlawful presence begins on the date of the determination.)

http://www.mnllp.com/engunlawfulinfo...0Time%20Period

MrBen

Thanks for the info - it's interesting (but complicated).

So it would take a judge or an immigration officer to examine my situation and subsequently determine that I have overstayed my welcome before I am officially here unlawfully. (?)

lairdside

Erm. No.

If you were infact given 6 months at POE then once that period of authorized stay has expired you would be present unlawfully. However without a determination you should not be accruing unlawful presence for the purposes of the 3yr/10yr/permanent bars.

For a proper determination of your circumstances you should, of course, consult with qualified counsel who can assess your case based on a full determination of the relevant facts relating to your indivdual circumstances

lairdside

I just re-read that and it seemed confusing (apologies I am tired).

If granted 6 months at POE you would still be out of status, i.e. having no legal immigration status, after the period of authorized stay had expired.

Hope that's clearer

Folinskyinla

Hi:

I've represented people in removal proceedings where INS/ICE has charged students with a "violation of status" against a college senior and the IJ has done a visible roll of the eyes indicating to the Government "why are you wasting my time?", the alien CONTESTS the charge thereby putting it in issue, the IJ inquires as to when final examinations are scheduled, sets a trial date for right after that -- and at trial date, we change our plea, admit the violation of status and get pre-hearing voluntary departure of 4 months.

There is a body of law under the old 212(c) as to when "lawful" permanent residence stopped accumulating towards the required seven years and it was held that a CONCESSION in court was the operative date.

The "law of unintended consquences" has the effect of creating "loopholes" -- and attorney's are supposed to find those loopholes.

Folinskyinla

Hi:

To add to the confusion, it is actually uncertain as to how long a Canadian entry is good for in matter of time. Arguments can be made for six months, one year, or no set time at all.

Two years back, I repesented an alien in an IHP removal hearing. The INS had charged him with being deportable as an "aggravted felon." The upshot was that his conviction was not for an "aggravated felony" but he was deportable nonetheless. Our goal was to actually get a final order of removal so he could be pub across the border into Canada ASAP after completing his sentence thereby avoiding later INS detention and preserving his right to apply for a 212(h) waiver at a later time.

The IJ, the TA and I had a detailed sidebar to fashion a charge of removablity -- we discussed an "overstay" and we all argreed that the law regarding Canadian's provided NO time to expire -- we finally agreed that his conviction was for a CIMT and we stipulated to that.