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Jen Marie, Esq.
Jen Marie, Esq., Immigration Attorney
Category: Immigration Law
Satisfied Customers: 5084
Experience:  She has worked on all types of U.S. Immigration cases since 2007.
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I first entered the US in 2001 with a visa when I was 10

Customer Question

I first entered the US in 2001 with a visa when I was 10 years old with my mother. As the visa expired, my mother applied for adjustment of status with me and my younger brother but immigration got a lot tougher after the 9/11 terrorist attack. So the first adjustment of status was denied and then my father came and did the same as he applied for adjustment of status with me and my brother as his dependents. That however, was very long and seemed endless and my brother and I turned 17 and 20 respectively, and decided that permanent residence was impossible in the near future and left the country for college in Korea. However, a couple of years after we left, my father was granted permanent residence and my father has applied for permanent residence for the whole family. Now, my question is, did my brother and I accrue any days in unlawful presence? More specifically, do we have those re-entry bans (3 years/10 years)? If we can prove that all of this is true with the letters from the government over the years, could we re-enter United States this very year?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Jen Marie, Esq. replied 1 year ago.

Hello, my name is ***** ***** I will be the immigration attorney helping you today.

Unlawful presence can not be acquired by minors under 18. You would start accumulating unlawful presence every year that you are in the US after turning 18. So if you were 20 when when you left you accumulated 2 years of unlawful presence which means you now have the 10 year ban to return to the US. If your father petitions you for your green card, you would eventually need an I-601 waiver to be approved in order for you to return to the US before the 10 years are up. You can read more about it here,0717-scott.shtm

You would basically have to show that one or both of your parents would suffer extreme hardship if you were not allowed back into the US before the 10 years are up.

I know immigration issues sometimes seem complicated and confusing. If at any time you would like to have a more detailed consultation by phone or if you need help with application preparation or review, I can send you an offer for this legal service to you for a reasonable fee later on. You don't have to decide if you would like that now, but just letting you know it's an affordable option for you to keep in mind.

Good luck to you during this process and I hope this answer has helped you!

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Customer: replied 1 year ago.
But I thought adjustment of status means that I am legally present in the US. I just simply left while I was in the adjustment of status and I found this from :Nonimmigrants who apply for an extension or change of nonimmigrant status but who leave the United States after their I-94 expires but before a decision on the application has been issued are not subject to § 222(g) if they can establish that:
1. The application was filed in a timely manner (i.e., before the expiration of the current period of authorized stay);
2. The application was nonfrivolous; and
3. The applicant did not engage in any unauthorized employment before the application was filed or while it was pending.I thought this made me technically legally present in the US because I was always under adjustment of status until the day I left the US. Or does this just not matter at all?
Expert:  Jen Marie, Esq. replied 1 year ago.

I'm sorry- You did not specify that you actually had an I-485 application submitted to USCIS and still pending when you departed the US or I did not understand it like that. If you had a valid I-485 submitted to USCIS before you turned 18 and it was not denied before you left the US, then no, you would not have accumulated unlawful presence. The pending I-485 will keep you in a status of temporary protection while it is pending. If that is the case then your father can petition for you and once there is a visa available for your category you should be allowed into the US. There still may be an issue with the consular officer thinking that you accrued unlawful presence so you should take a copy of your I-485 receipt notice showing when it was filed along with proof of when you departed the US. Then you should be allowed in without waiting the 10 years.

I hope that clarifies your doubts. Let me know anything further I can clarify. I hope I have earned your positive rating.

Customer: replied 1 year ago.
This is news to me, since I stumbled upon that article just recently. To be specific, when my father applied for adjustment of status along with the rest of my family in 2007, it was denied because our representative at the time failed to submit documents on time. We appealed to resume our immigration, and I believe it was re-examined and pending in some deep dark hole for years and years with no response. That is why my brother and I left and when it was approved for my father in 2013, it was a surprise. We just assumed we were unlawfully present, but if our i-485 was initially denied, but appealed and still pending, would we still technically have temporary protected status?
Expert:  Jen Marie, Esq. replied 1 year ago.

No you unfortunately you would only be protected by the pending I-485 until a decision was issued. The I-485 applications cannot normally be appealed unless it was based on a marriage to a US citizen or resident. This means what you would have been out of status on the day that your I-485 was denied and any time you spent in the US after the age of 18 after that day, would be unlawful presence.

Hopefully this is now clearer, I'm sorry, I wish I had better news for you. Please understand that we do not make the law and we cannot change it. I hope you can rate me based on my service and not whether the answer was favorable or unfavorable

Customer: replied 1 year ago.
If our I-485 was denied, then how did my father suddenly get LPR status almost 6 years later, in 2013? I was too young to know much about exactly where it was, but I specifically do remember we were waiting for something, and I believe there were letters telling us to wait. I would have to double-check, but wouldn't re-opening our immigration case mean that USCIS is once again considering us for adjustment of status?
Expert:  Jen Marie, Esq. replied 1 year ago.

I'm sorry but without seeing your paperwork I cannot know any of this for sure. I am merely guessing. What I can tell you is that If your father somehow adjusted his status to LPR based on the same case that you were a part of then, there is a good chance that you did NOT accrue unlawful presence and you would not face a bar.

I have answered all followups in good faith even without a rating issued. I believe that I have answered your original question and follow ups completely to the best of my ability with the information provided. Hopefully I have now earned your positive rating. Thank you for your consideration.