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What is the difference between Overstay , Out - of - Status or Unlawful Presence . How can that affect my application for AOS ?

Atlanta, GA |

- I was on J - 1 but not exposed to any 2 years barter until September 2012 , I worked 1 year - I date my girlfriend since 6 months - I left USA in September 2012 and decide to apply for 1 VISA study English - In October 2012 I came back in USA F - 1 visa and live with my girlfriend - My D / S expired in February 2012 and May 2012 with Grace Period and my student visa in passport is valid until 2016 - Until now I live with my girlfriend - My passport is valid until 2020 - Since my end of D / S in May 2012 I am in the USA . - We plan to marry next week and go to do the AOS

Yes - SHE is US Citizen

Attorney Answers 3


  1. Best answer

    Generally, "overstay" refers to exceeding the time permitted on a visa; "out of status" means not in compliance with a visa and may include violating its terms or overstaying its duration; and "unlawful presence" refers to being present in the U.S. without being in compliance with a valid visa.

    Generally, someone who entered the U.S. lawfully and with inspection, who then becomes married to a U.S. citizen, may apply to adjust status notwithstanding that he/she has overstayed a visa or otherwise become unlawfully present. It is critically important, however, to address any home residency requirement that might apply to a J-1 visa. There is no substitute for engaging an immigration attorney to learn all of the relevant circumstances and facts in order to advise about eligibilities, options and strategies.

    [Note: Consistent with Avvo policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]

    David N. Soloway
    Frazier, Soloway, Poorak & Kennedy, P.C.
    1800 Century Place, Suite 100
    Atlanta, Georgia 30345 www.fspklaw.com
    404-320-7000 * 1-877-232-5352 * dsoloway@fspklaw.com

    [Note: Consistent with Avvo policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.] David N. Soloway Frazier, Soloway & Poorak, P.C. 1800 Century Place, Suite 100 Atlanta, Georgia 30345 www.fspklaw.com 404-320-7000 * 1-877-232-5352 * dsoloway@fspklaw.com


  2. For your purposes it makes little difference and you should be fine, provided she is a USC, a fact you neglected to include in your fact description.

    www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.For legal advice please contact us directly through one of the above.


  3. if you are not subject to the J-1 212(e) requirement, you should have no problems with adjustment of status

    This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.

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