some help, please? VWP>AOS

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Mar 17th 2012, 9:48 pm

#46

ian-mstm

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Re: some help, please? VWP>AOS

Quote:

Originally Posted by cmc87

After the denial, the alien continues to remain in the United States unlawfully; the accrual of unlawful presence resumes on October 16, 2006, a day after the application is denied.

Don't you see though, this is not what I wrote. If the alien leaves the day after the denial, there is still no ban. In your example, the alien chose to remain in the US... so there's no comparing the two situations.

Quote:

The alien returns unlawfully on October 15, 2006. He departs the United States again on January 1, 2007.

In this case, the alien returns unlawfully. If the alien returned lawfully, the 180 days out of status wouldn't be an issue and there would be no ban.

Do you understand that you're trying to link together two different scenarios when, in fact, there is nothing to link them together?

I stand by my original statement.

Ian

Mar 17th 2012, 10:14 pm

#47

katiekat

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Re: some help, please? VWP>AOS

I see where my confusion is... I'm mixing a couple of things I've read from other threads regarding overstays, leaving and the 10 year ban. Sorry for the confusion!

Mar 17th 2012, 10:29 pm

#48

cmc87

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Re: some help, please? VWP>AOS

Quote:

Originally Posted by ian-mstm

I believe this is referred to as the 30/60 myth - which is all it is... a myth. That it's printed in the FAM is simply a white elephant when it comes to the presumption of intent when adjudicating.

Ian

It's also in the second link I posted - the uscis officer field manual. Can't post the quote, on my phone. I'm not trying to post misleading info, everything I have posted i have seen written by uscis.

On the other post I was referring to the fact that in the example, the alien had applied for adjustment while out of status and was denied. The time that the application was pending did not add to the days he was out of status. There are more examples in the document, including different scenarios.

I am assuming that since its on the uscis site, it can be taken as fact, and not dismissed as myth.

Mar 18th 2012, 2:21 am

#49

md95065

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Re: some help, please? VWP>AOS

Quote:

Originally Posted by cmc87

I am assuming that since its on the uscis site, it can be taken as fact, and not dismissed as myth.

While I wouldn't automatically dismiss something on the USCIS site as a "myth" I wouldn't automatically take it as a fact either.

Did you read the disclaimer on their web site?

It includes the following statement:

Quote:

This World Wide Web (WWW) site is provided as a public service. Every effort is made to provide complete and accurate information. However, with the volume of documents available, often uploaded with short deadlines, we cannot guarantee there will be no errors. We will do our best to correct errors brought to our attention. With respect to documents and information on this Website, neither the U.S. Government, the Department of Homeland Security, nor their employees and contractors make any warranty, express or implied, including the warranties of merchantability and fitness for a particular purpose, or warranties of non-infringement of third party rights, title, and freedom from computer virus.

Mar 18th 2012, 2:52 am

#50

jeffreyhy

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Re: some help, please? VWP>AOS

It's in the FAM because it's a DOS guideline for consular officers. It's not a USCIS guideline or policy.

Regards, JEff

Quote:

Originally Posted by ian-mstm

I believe this is referred to as the 30/60 myth - which is all it is... a myth. That it's printed in the FAM is simply a white elephant when it comes to the presumption of intent when adjudicating.

Quote:

Originally Posted by cmc87

From what I understand, if you apply before 30 days, USCIS will assume you have intent and it will be up to you to prove otherwise. Between 30 and 60 days, they will not automatically assume, but they will look for evidence of intent.
After 60 days, they will not consider it entry with intent, unless there is actual evidence to the contrary.

Mar 18th 2012, 3:02 am

#51

jeffreyhy

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Joined: Apr 2001

Posts: 14,049

Re: some help, please? VWP>AOS

Good analogy, I think. My own analogy is to nuclear generation of electricity - it most often is very safe and reliable, but when something does go wrong the consequences are really bad.

This topic is referred to as a '10 foot pole' issue for a reason, and yet it always creates a heated debate and this thread has gone on for 5 pages now. Unbelievable!

Regards, JEff

Quote:

Originally Posted by Noorah101

I like to make the correlation of VWP --> AOS to speeding.

Do people speed? Yes. Do most people get away with it? Yes. Does that make it legal? No. Do some people get caught? Yes.