Is AP worth it if you've overstayed?

[peterbainham 0]

Just got my I-797C through which is all well and good. My wife and I would like to go to England this summer and I understand that I have to get Advance Parole before I go anywhere. I've done the forms but how long does it take to get an answer?

The other thing is that I came on an I-94W (without any intention to stay) and didn't file until the 180 day limit had nearly expired. The Received date on the I-797C is April 26th while the Notice date is May 5th. The question is, on which date did I cease to be in overstay? If it's the former and I didn't overstay by more than 180 days then is it still a good to leave the country for a couple of weeks? Would they have any reason from stopping me from returning?

Thanks.

[Kez/JWolf 6]

You are in the same boat I was in... I came on a VWP and stayed... you can not use an AP because if you do you will be denided regardless of any overstay or not.... you must not leave the States until you have your greencard...

Kezzie

[peterbainham 0]

Is there any way back into the States - short of smuggling myself in - after that?

[Kez/JWolf 6]

If you leave and try to return you will be sent back to the UK on the next flight at your expence.. and the only way for you to return would be to file for K3...

I dont think you will have had your interview by summer but you never know... why not plane for a trip home later this year or early next..

Kezzie

[peterbainham 0]

Man that sucks.

I guess you're right though. It's really not worth jeopardising this after all the time and expense we put in so far. It's just getting to that point that I'm really missing my home and family after being away for so long and I'd just like to go visit them for a short while.

Do you ever regret doing this process the way we've done it?

Thanks for the advice.

[Yodrak 7]

peterbainham,

The VWP allows a 90-day stay, not 180 days?

Yodrak

...

The other thing is that I came on an I-94W (without any intention to stay) and didn't file until the 180 day limit had nearly expired. ...

Thanks.

[peterbainham 0]

That's right. The 180 days refers to the period of overstay 'allowed' before you start to suffer serious penalties. If you go over that 180 day limit then you will be banned from returning to the States for 3 years. If you go 360 days over then that increases to 10 years. It's only a problem if you leave the country though.

I think that I had accrued 177 days of overstay until I filed the AOS application but I can't be sure. Either way, it looks like I won't be leaving the country until I get my green card though.

[Kez/JWolf 6]

The only regrets I have is that I had to rely on my family to sort everything out that I left behind, my mum had to pack up my house and sell it and my Son had to go to the lawyers and deal with all the paperwork to allow him to act on my behalf as I could not leave to sort out stuff...

And of course the fact that I could not go home until I had my greencard... we have our first trip home planned for Sept.. had to wait this long as I am now working and its not easy to get time off when you are new...

K1 or K3 would have given me time to plan and sort thing out and say farewell to all of the people who I have left behind...

But overall no major regrets...

Kezzie

[chocolaterie 0]

yeah don't use the ap. I know how you feel. it's been 2.5 years since I've seen my mum and dad. cheer up, and if it's possible get them to come and visit you.

[Yodrak 7]

peterbainham,

Thanks for clarifying what period of time you were writing about.

Agreed, stay put until you become an LPR.

Yodrak

That's right. The 180 days refers to the period of overstay 'allowed' before you start to suffer serious penalties. If you go over that 180 day limit then you will be banned from returning to the States for 3 years. If you go 360 days over then that increases to 10 years. It's only a problem if you leave the country though.

I think that I had accrued 177 days of overstay until I filed the AOS application but I can't be sure. Either way, it looks like I won't be leaving the country until I get my green card though.

[meauxna 15]

You are in the same boat I was in... I came on a VWP and stayed... you can not use an AP because if you do you will be denided regardless of any overstay or not.... you must not leave the States until you have your greencard...

Kezzie

uhhhh, what?

Are you saying that it's your understanding that if a person enters the US on a VWP, marries and files to adjust status, they are not eligible to use Advance Parole full stop, and if they do (even if they have zero days of overstay) that they will then be denied re-entry using Advance Parole? What 'denial' are you referring to? And, do you have a link to this information?

As you might guess, I'm very surprised to see this development put into writing...

[Kez/JWolf 6]

I was advised by both our lawyer and USCIS that as I entered on a VWP, if I left the USA I would have problems returning, it has something to do with being paroled into the US if you us an AP rather than being admitted if you use a visa or VWP..

I will try to find a link about it today....

Kezzie

[zyggy 9]

I was advised by both our lawyer and USCIS that as I entered on a VWP, if I left the USA I would have problems returning, it has something to do with being paroled into the US if you us an AP rather than being admitted if you use a visa or VWP..

I will try to find a link about it today....

Kezzie

From what I understand the issue is not a problem of getting in... rather the issue is giving up your appeal rights for removal. By adjusting on VWP, you already give up your appeal right within USCIS for the adjustment denial... when you're also a Parolee, you give up your right to go in front of an Immigration Judge to appeal the removal order. Basically, if you use AP when doing a VWP adjustment, you give up your right of appealing anything and any adjudicator who has a really bad day can ruin your lives in an instant with no review of that decision available...

It is important to know what the distinction is of being a Parolee... the distinction is that they allow your physical self to be permitted in the US. But your legal self is still at the POE waiting to be admitted to the US. So if you are denied, you have no right of appeal since your legal self is outside the US. Only those whose legal self is inside the US can go in front of an Immigration Judge to protest their removal.

[Kez/JWolf 6]

Thank you zyggy... you explained it much better than I could have... Yes that is what we were told by our lawyer and by USCIS... they both advised against leaving the US before Greencard was approved...

Kezzie

[peterbainham 0]

I was advised by both our lawyer and USCIS that as I entered on a VWP, if I left the USA I would have problems returning, it has something to do with being paroled into the US if you us an AP rather than being admitted if you use a visa or VWP..

I will try to find a link about it today....

Kezzie

From what I understand the issue is not a problem of getting in... rather the issue is giving up your appeal rights for removal. By adjusting on VWP, you already give up your appeal right within USCIS for the adjustment denial... when you're also a Parolee, you give up your right to go in front of an Immigration Judge to appeal the removal order. Basically, if you use AP when doing a VWP adjustment, you give up your right of appealing anything and any adjudicator who has a really bad day can ruin your lives in an instant with no review of that decision available...

It is important to know what the distinction is of being a Parolee... the distinction is that they allow your physical self to be permitted in the US. But your legal self is still at the POE waiting to be admitted to the US. So if you are denied, you have no right of appeal since your legal self is outside the US. Only those whose legal self is inside the US can go in front of an Immigration Judge to protest their removal.

Ok, I think I understand. At what point would they order my removal and how likely is that? Basically I'm weighing up my options at the moment and seeing if it's worth the risk (though everybody seems to be telling me not to leave with or without AP).