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During the pendency of the adjustment application unlawful presence is not accrued

New York, NY |

per AFM CH 40.9.2, that is unless the AOS was filed defensively after receiving NTA.
These regulations were enacted as part of IIRIRA in 1996.

If I filed a defensive AOS in 1995 (prior to IIRIRA), was granted VD in 1998, and promptly left the US within the VD time, is it accurate that I did not accrue any unlawful presence as I had pending AOS during the entire time I was here?

I entered on a 6 month B visa in 1993. When I received the NTA in 1995 I was out of status (overstay).

Attorney Answers 1


when did you enter and how? meaning, how long have you been in US prior to 1995 and in what status?

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I entered on a 6 month B visa in 1993. When I received the NTA in 1995 I was out of status

Irene Vaisman

Irene Vaisman


In my opinion, you accrued unlawful presence (from the time the I-94 expired to the time you filed AOS)



Since I would only have accrued unlawful presence between the expired I-94 and the time I filed AOS, and since this time period was prior to April 1, 1997, then this unlawful presence that I accrued should not be counted and hence my total unlawful presence would be 0?

Irene Vaisman

Irene Vaisman


what is the source of this questioning? are you trying to figure out whether you would need a waiver if someone sponsors you back?

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