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If I overstay my VWP stay by let's say 2 weeks and then my USC wife puts in an adjustment of status and request for my green card, and months later after the interview it gets refused, how long is my overstay then?

Is it 2 weeks? Is it all the days since my stay expired until the day my green card is refused?

It's confusing because some people say I have a legal status during my AOS and no days count towards my ban during that, but I read also if it gets denied then yes they will count.

  • Your overstay has nothing to do with your ESTA. The ESTA is the authorization to fly (or sail) into the US. Once you landed, you entered the US on the Visa Waiver Program. – user67108 Jan 28 '18 at 10:16
  • I dont get what u r saying or how it answets my question – User481516 Jan 28 '18 at 18:47
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    I think the question here is whether unlawful presence continued to accrue while the denied adjustment of status was pending. – Zach Lipton Jan 28 '18 at 19:20
  • Yeah exactly Zach – User481516 Jan 28 '18 at 19:36
  • Did you already overstay when the adjustment of status application was filed? – Zach Lipton Jan 29 '18 at 1:57
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"Unlawful presence" for the purposes of the bans does not accrue while you have a properly-filed Adjustment of Status (I-485) application pending, even if that application is later denied.

From the USCIS Adjudicator's Field Manual Chapter 40.9.2(b)(3)(A):

Note that, if the application is properly filed according to the regulatory requirements, the applicant will not accrue unlawful presence, even if it is ultimately determined that the applicant was not eligible for the benefit in the first place. The accrual of unlawful presence is tolled until the application is denied.

From the Department of State's Foreign Affairs Manual, 9 FAM 302.11-3(B)(1)(b)(5):

b. DHS has interpreted "period of stay authorized by the Secretary of Homeland Security" as used in this context to include:

(5) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);

So, if your AOS is denied, the amount of "unlawful presence" you will have accrued before you left is (number of days after your I-94 expired before your I-485 was filed) + (number of days after your I-485 was denied before you left the US). If this is less than 180 days, you trigger no ban upon leaving. If this is more than 180 days/1 year, you trigger a 3-year/10-year, respectively, INA 212(a)(9)(B) ban upon leaving.

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https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartB-Chapter3.html

It appears that the entirety of the period after your VWP admission period are counted towards unlawful presence.

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    That section does not talk about accrual of "unlawful presence". – user102008 Feb 25 '18 at 16:55

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