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Adjustment of status and waiver

Las Vegas, NV |

Would I need to file a I-601 if I have previously (7 years ago) been in the US for 2 years after the validity of my visa IF I came to the US last month with inspection and have a valid I-94?

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Attorney Answers 3

Posted

Given that you were lawfully admitted into the country upon your last arrival,
you will be ale to file for adjustment of status in the US and will not need to depart and file the waiver to be readmitted. That waiver requirement is not applicable to you since you were lawfully admitted into country and are thus free to apply for a green card and obtain it in the US.

Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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6 comments

Asker

Posted

Thank you. Does it matter that a few years ago I stayed illegally for 2 years (I was lawfully admitted but stayed too long). Since I have left the US 5 years ago, I have gone back several times on vacation.

Giacomo Jacques Behar

Giacomo Jacques Behar

Posted

No, that does not matter at all. Any previous overstays you had were in effect "cured" each time when you were again and again admitted into the country as a visitor on vacation (and you left in time.)

Asker

Posted

that makes me feel better :). Is there a reason why the other lawyer Jeff L. Khurgel (answered my question s well) says that I am ineligible for AOS and need to file a I-601?

Jeff L. Khurgel

Jeff L. Khurgel

Posted

Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act

Asker

Posted

I understand, but I entered the US lawfully with inspection at least 200 times in the last 5 years (since i left after my overstay)

Jeff L. Khurgel

Jeff L. Khurgel

Posted

Doesn't matter. When you enter the U.S., there is not always a thorough examination of your eligibility for admissibility. When you apply for adjustment of status there will be. I don't make the laws, I'm just letting you know.

Posted

I assume that you married a US citizen after you came in the US the last time. In that case you do not need to file I-601. I-601 is an Application for Waiver of Grounds of Inadmissibility. You were admitted in the US, therefore, you were admissible at the time you received your visa.

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2 comments

Asker

Posted

No. I married a US citizen in March even though we were in a DP since 2006. I didn't get a visa this time. I am still using my B2 visa that I got in 2006 (it is the visa I overstayed back then).

Boris A. Avramski

Boris A. Avramski

Posted

In this case, I advise you to stop posting on this public forum and schedule a confidential consultation with an immigration attorney.

Posted

When you were in the US 7 years ago and overstayed for two years, then departed, you incurred a 10-year bar to adjustment of status.

However, if when you were here 7 years ago, you were on an F-1 visa with "D/S" indicated on your I-94, then you might not have accrued the unlawful presence and would not need the waiver now to be able to adjust status.

Obviously, be sure to discuss this in detail with a good immigration attorney. Most of us are available via phone and Skype.

Attorney Khurgel is a former USCIS and State Department Embassy Officer. His comments on Avvo are general advice, and do not constitute an attorney-client relationship.

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2 comments

Asker

Posted

I have never had a F-1. I had a J-1 which was terminated early because I met my spouse and moved away. I left the country immediately and we both lived in Canada for 6 months. I came back on a Visa Waiver (european passport) and before that waiver was over, I went back to Europe to get a B2 visa. Went back to the US and overstayed 2 years beyond my allowed 6 months. Left the country because we decided I couldn't have a life in the US and moved to Canada ( did not have any deportation or anything like that). Lived in Canada for almost 5 years and have been going to the US on the same B2 visa and passport about every week (sometimes twice a week). We came here on Vacation but don't want to go back to canada. We still have our entire house in Canada, cable, internet, electricity... everything basically because we did not anticipate not returning to Canada. I have been told we need to wait until my AOS so I can go back and pack everything.

Jeff L. Khurgel

Jeff L. Khurgel

Posted

You're ineligible for adjustment of status for ten years from the time you departed the US (the 2-year overstay departure). That is assuming at least one year of the unlawful presence was after you reached the age of 18. If that is the case, you will need a waiver of inadmissibility to be able to adjust status.

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