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TLDR: just how screwed is the foreign spouse that overstayed and doesn't want a 10yr US travel ban? Do all paths short of keeping US residency in good standing lead to the ban?


Indian citizen on a B-1/B-2 tourist visa married a US citizen in the US prior to I-94 expiration.

The adjustment of status process was only partially started on time. The I-485 was not filed concurrently with the I-130.

More than a year lapsed before the I-485 was filed. The Indian citizen was arguably considered as unlawfully overstaying 1yr+ (until the grossly tardy I-485 was submitted).

The desire to go through with the adjustment of status has diminished. The Indian citizen wishes to abandon the AOS but fears that 10-year ban will prevent them from obtaing a future tourism visa for the USA.

Additionally, it is my understanding that there is no such thing as "forgiveness" for this unlawful overstay, simply that is not considered a factor if adjusting status while remaining in the US.

  1. Is it accurate that a that an overstay violation and travel ban remains regardless if you complete the AOS and become a conditional resident? If so, does that mean abandoning the conditional residency after the AOS triggers the resumption of the 10-year travel ban? And that this ban also applies to an abandoned or denied AOS?
  2. And if so, regarding the ban, is there a difference between a conditional LPR and regular resident after conditions are removed?
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    As far as I can see, even if you get the green card and then relinquish it, the inadmissibility for unlawful presence would remain. Worse, because the 3- or 10-year period is triggered by departure from the US, it might begin as of most recent the date of departure before relinquishing permanent residence. I don't think the I-130 tolls accrual of unlawful presence, but even if it does, the tolling is limited to 120 days, so depending on how much more than a year elapsed before filing the I-485, the ban might be 10 years. In any event, this question belongs on Expatriates.
    – phoog
    Apr 3 at 9:08
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    This is to delicate for strangers on the Internet. If you don't want to mess this up any further, I highly recommend talking to an immigration lawyer. Apr 3 at 13:44

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They started accruing "unlawful presence" when they stayed past the date on their I-94. They do not accrue "unlawful presence" while their I-485 (Adjustment of Status) is pending, no matter if it is approved, denied, or abandoned. Since it was more than a year between the date on their I-94 and when they filed I-485, they accrued more than a year of "unlawful presence", and they will trigger a 10-year ban upon departing the US.

Is it accurate that a that an overstay violation and travel ban remains regardless if you complete the AOS and become a conditional resident?

The unlawful presence remains, and, in my opinion, the 10-year ban still starts whenever they leave the US, even as a permanent resident. However, the ban, by its terms, does not affect the entry of a permanent resident.

Someone asked a question earlier about whether it could be interpreted that a departure while a permanent resident does not trigger then ban, and I felt that it's not reasonable to interpret it that way.

If so, does that mean abandoning the conditional residency after the AOS triggers the resumption of the 10-year travel ban?

The ban doesn't "pause" or "resume" -- it just runs as it normally would. So if they depart the US while they were a permanent resident, the 10-year ban starts at that time. The ban does not affect them while they are a permanent resident, but the 10 years still continues to run. If they cease being a permanent resident, then the ban affects them, but there will be less than 10 years remaining on the ban.

And that this ban also applies to an abandoned or denied AOS?

Yes

And if so, regarding the ban, is there a difference between a conditional LPR and regular resident after conditions are removed?

No

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