Is AP worth it if you've overstayed?

[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.

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).

Due to your possible overstays, etc.. I would not leave at all..

Talk to an attorney to confirm, but it's rare for an attorney to recommend going away on AP if adjusting on anything other than a K visa.

Edited May 10, 2006 by zyggy

[meauxna 15]

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

hi Kezzie.. I wondered if that is where you were going with it.. most people don't appreciate the difference between 'admitted' and paroled!

However, the way your post is worded could lead someone to beleive that AP does not apply *period* to someone adjusting from a VWP. Many, many people do so without problem, although your lawyer's advice is the most conservative and practical. If you don't go anywhere, you're in a much safer position!

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).

I don't think you do get it.. based on your NOA date and your math, you'd be due for a ban against re-entry, and you wouldn't get paroled in either.

Risk? It's not a lottery. You either incur a ban when you leave, or you don't. I suspect from what you've written about your NOA date and your math that if you leave the US, AP or no, you won't be back for about 3 years.

Call a lawyer so you can be sure. Pay for the advice so you can be extra sure. Then spend your vacation money in the States.

[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

hi Kezzie.. I wondered if that is where you were going with it.. most people don't appreciate the difference between 'admitted' and paroled!

However, the way your post is worded could lead someone to beleive that AP does not apply *period* to someone adjusting from a VWP. Many, many people do so without problem, although your lawyer's advice is the most conservative and practical. If you don't go anywhere, you're in a much safer position!

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).

I don't think you do get it.. based on your NOA date and your math, you'd be due for a ban against re-entry, and you wouldn't get paroled in either.

Risk? It's not a lottery. You either incur a ban when you leave, or you don't. I suspect from what you've written about your NOA date and your math that if you leave the US, AP or no, you won't be back for about 3 years.

Call a lawyer so you can be sure. Pay for the advice so you can be extra sure. Then spend your vacation money in the States.

What's the NOA (notice of action?) date and where can I find it?

[meauxna 15]

What's the NOA (notice of action?) date and where can I find it?

NOA = Notice of Action aka I-797c. You said in your first post that yours is dated May 5.

[peterbainham 0]

What's the NOA (notice of action?) date and where can I find it?

NOA = Notice of Action aka I-797c. You said in your first post that yours is dated May 5.

I feared you were going to say that. Thanks for telling me though.

One last thing. I see that some people are able to check their application status online. How do I do that?

[meauxna 15]

What's the NOA (notice of action?) date and where can I find it?

NOA = Notice of Action aka I-797c. You said in your first post that yours is dated May 5.

I feared you were going to say that. Thanks for telling me though.

One last thing. I see that some people are able to check their application status online. How do I do that?

No idea on that one, pal.

Someone else will have to chime in. It's over at uscis.gov in the right hand menu, but I've never had anything in there to check...

[peterbainham 0]

Actually I just found it myself. Here it is if anyone's interested:

https://egov.immigration.gov/cris/caseStatu...id=bOmybKoDnuua

That should be:

https://egov.immigration.gov/cris/jsps/index.jsp

[Yodrak 7]

Zyggy,

Is it possible for a person to be removed if they've not been admitted?

In other words, can a parolee be removed? Or are they simply not admitted? In the legal sense.

Yodrak

....

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.

[zyggy 9]

Zyggy,

Is it possible for a person to be removed if they've not been admitted?

In other words, can a parolee be removed? Or are they simply not admitted? In the legal sense.

Yodrak

....

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.

Correct...One cannot protest their removal if there is nothing to remove legally.. (other than your corporal being) Of course one cannot be removed, if one is not admitted... Let's call it reuniting your physical self with your legal self

Edited May 10, 2006 by zyggy