Leaving the country while AOS is pending

[marcot1997 0]

We need help!!! Here's our story:

My wife came to the U.S. on a K-1 Visa from Philippines (arrived July 6, 2007). We married w/in the 90 days (September 20, 2007). We were unable to afford the $1010.00 AOS filing fee until late March 2008. The date of receipt of the NOA for the AOS is April 6, 2008. She had her biometrics taken (May, 2, 2008). Everything for the AOS is in order and, ordinarily, we'd have no problem waiting for the interview, etc. (at least we're together).

THE PROBLEM:

My wife's mother just died (this morning) and she very much wants to go home to be with her family and see her mother one last time. Our concern is that she will be unable to re-enter the country b/c she has no green card yet. We've explored Advance Parole but it doesn't seem to apply to us as she entered on a K-1 (not a K-3) Visa. Even if it was an option...it takes too long to get AND between October 4, 2007 (the date on my wife's I-94 Card) and April 6, 2008 (the date USCIS received our AOS application) more than 180 days had passed, during which time she was "out of status." According to the law, as I understand it, if she was to leave the country now (before getting her green card) she would be banned from re-entry for a period of three years. This would hold true EVEN IF she had the appropriate advance travel documents such as AP, due to the fact that she was here "out of status" for more than 180 days. We spoke to one lawyer and he told us "not to chance it" and stay here.

Does anyone have any ideas or know the contact information of someone we could talk to about getting around this? I read that it is possible that Immigration would forego the 3 year ban if we could show "extreme hardship" to me (the U.S. born spouse) and our U.S. born child. If this was the only way for re-entry, is it immediate (upon arrival at the port of entry) or is there a process for it? What is that process?

Anyone know if a letter from a Senator, etc. would help?

My wife needs to leave within one week and we appreciate any and all help. Thanks!

Brian and Daice

[LaL 418]

When you applied for AOS - did you also submit an application for AP? K1 are eligible. Stalling applying for AOS does not negate the eligibility for AP. If you have any kind of documentation regarding the death of your wife's mother - or information regarding the funeral arrangements - I would get down to an Infopass appointment immediately and see if you can obtain an emergency AP.

From what you mentioned - I can see no reason why the 3 year bar would pertain to you. My condolences to your family.

[rebeccajo 14]

LaL...

I don't think this woman should be traveling.

[rebeccajo 14]

http://www.***removed***/greencard/adjustme...nce-parole.html

Scroll down to the bottom and read the Travel Warning.

[K&W 0]

So sorry to hear about her mom....

I just got my expedited AP in hand. I made a request on 11th to USCIS and received hard copies on 17th. They approved my case on 12th. Local office can handle it slightly faster.

Here's my topic. Please take a look, I think it helps.

How to get expedited AP

Seems like you didn't file I-131 with AOS, correct? If you did that, your case would have been approved already by now...

OK, anyway, the only thing you can do is, go to USCIS local office and file I-131 there.

Find your local office from here

https://egov.uscis.gov/crisgwi/go?action=of....office_type=LO

If you cannot make InfoPass appointment at your preferred timing, DO NOT WAIT! Just go to your local office as soon as possible, and say it's emergency. They let you come in. Prepare I-131 and attachments. Photo, the evidence of your wife's mom's death ( fax or scanned documents are acceptable), I-485 NOA1, passport, etc. Since this is your first time filing with I-485, I don't think you have to pay... but if you cannot convince the officer, credit card might be needed.

If you have any questions to get expedited AP, write here or send PM to me. Good luck

[jula 0]

From what you mentioned - I can see no reason why the 3 year bar would pertain to you. My condolences to your family.

She was out of status for more than 180 days from the time K-1 expired to the time they filed for AOS.

If your wife gets emergency AP and leaves with AP (K-1s can get one), she will most likely be denied re-entry because of overstay.

If she leaves without AP, her AOS will be considered abandoned.

In both cases you would have to petition for her gain; this time as your wife. After the approval of the petition, she will be denied an immigrant visa at the consulate because of overstay and would be asked to file a waiver... You both are looking in a 1 year+ time for the whole process.

I am sorry about the situation..

[yogib37 3]

From what you mentioned - I can see no reason why the 3 year bar would pertain to you. My condolences to your family.

She was out of status for more than 180 days from the time K-1 expired to the time they filed for AOS.

If your wife gets emergency AP and leaves with AP (K-1s can get one), she will most likely be denied re-entry because of overstay.

If she leaves without AP, her AOS will be considered abandoned.

In both cases you would have to petition for her gain; this time as your wife. After the approval of the petition, she will be denied an immigrant visa at the consulate because of overstay and would be asked to file a waiver... You both are looking in a 1 year+ time for the whole process.

I am sorry about the situation..

you are partly wrong. she was not acuring any overstay cause she did not file within the 90 days. That is to get married. If she left the country then yes that would become a overstay issue for her. Since she did not leave the country it does not count. Maybe Technicly it was overstay but the USCIS Forgives that overstay on the AOS. When she filed the AOS, she became back into staus.

I filed for my wife's AOS after the 90 days, guess what, she is now in the process of removing her conditions.

yogi

[marcot1997 0]

From what you mentioned - I can see no reason why the 3 year bar would pertain to you. My condolences to your family.

She was out of status for more than 180 days from the time K-1 expired to the time they filed for AOS.

If your wife gets emergency AP and leaves with AP (K-1s can get one), she will most likely be denied re-entry because of overstay.

If she leaves without AP, her AOS will be considered abandoned.

In both cases you would have to petition for her gain; this time as your wife. After the approval of the petition, she will be denied an immigrant visa at the consulate because of overstay and would be asked to file a waiver... You both are looking in a 1 year+ time for the whole process.

I am sorry about the situation..

you are partly wrong. she was not acuring any overstay cause she did not file within the 90 days. That is to get married. If she left the country then yes that would become a overstay issue for her. Since she did not leave the country it does not count. Maybe Technicly it was overstay but the USCIS Forgives that overstay on the AOS. When she filed the AOS, she became back into staus.

I filed for my wife's AOS after the 90 days, guess what, she is now in the process of removing her conditions.

yogi

[marcot1997 0]

From what you mentioned - I can see no reason why the 3 year bar would pertain to you. My condolences to your family.

She was out of status for more than 180 days from the time K-1 expired to the time they filed for AOS.

If your wife gets emergency AP and leaves with AP (K-1s can get one), she will most likely be denied re-entry because of overstay.

If she leaves without AP, her AOS will be considered abandoned.

In both cases you would have to petition for her gain; this time as your wife. After the approval of the petition, she will be denied an immigrant visa at the consulate because of overstay and would be asked to file a waiver... You both are looking in a 1 year+ time for the whole process.

I am sorry about the situation..

you are partly wrong. she was not acuring any overstay cause she did not file within the 90 days. That is to get married. If she left the country then yes that would become a overstay issue for her. Since she did not leave the country it does not count. Maybe Technicly it was overstay but the USCIS Forgives that overstay on the AOS. When she filed the AOS, she became back into staus.

I filed for my wife's AOS after the 90 days, guess what, she is now in the process of removing her conditions.

yogi

It is not the fact that we didn't file the AOS prior to the 90 days that worries me. If it was just a matter of getting a green card, I know they will usually forgive an overstay if the operson is already in the country and married to a U.S. citizen. The problem is that more than 180 days passed form the time the Visa expired to the time USCIS received our AOS application.

Again, if it was just a matter of getting a green card...no big deal. The problem is LEAVING THE COUNTRY before she actually has a green card. If she had not been out of status, AP would be appropriate in an emergency, however, due to the prolonged "overstay" (even though we were already married) they really could deny re-entry and ban her for three years.

We have a young baby and just cannot handle that if it happened and also cannot afford another long process of re-petitioning/applying for a waiver. We are just about broke as it is.

Is there a way around this???

[Cecile and Bryan 0]

Did you call a USCIS office and ask them what they think?

I honestly don't know how the late AOS filing would affect your case, but she wants to leave the country for a very good reason, and they may tell you to request an expedite AP.

At least they should know what your options are. And expedite AP seems to take only a few days.

[Sylvia_n_Joseph 3]

I am not sure that you have an issue with the illegal presence , she may have just been out of status not illegal. However you will need to pay for AP with it wasnt filed with the AOS. I think it is $305

[jula 0]

From what you mentioned - I can see no reason why the 3 year bar would pertain to you. My condolences to your family.

She was out of status for more than 180 days from the time K-1 expired to the time they filed for AOS.

you are partly wrong. she was not acuring any overstay cause she did not file within the 90 days. That is to get married. If she left the country then yes that would become a overstay issue for her.

I don't understand your comment. She had no status between the time her K-1 visa expired and the time thy filed for AOS. That's overstay whether she stays here (not an issue if adjusting status as immediate relative of USC)) or leaves the USA (becomes a big issue).

she may have just been out of status not illegal.

What's a difference? out of status triggers a ban when one leaves USA.

Anyway, it seams that marcot has a good understanding of the situation. I don't know how she can leave and safely return without delay. You may call USCIS, but don't take their answer for granted...

[LaL 418]

LaL...

I don't think this woman should be traveling.

I suppose. I just was recalling John&Annie who entered August 2005 on VWP - didnt file for AOS until August of the next year (2006), and used AP without any problems.

Edited June 19, 2008 by LaL

[marcot1997 0]

We just came from an infopass appointment at USCIS and got very confusing news! The officer told us that we were misinformed and, if there is an emergency (death in family qualifies), then we could, in fact, get an expedited Advanced Parole. They just need a few photos, a death certificate, an application, and (of course) $305. Her answer made me more nervous than anything. She refused to acknowledge that there is a (3) year ban for anyone (being out of status for more than 180 days at any point) who leaves the country w/o a green card. When I asked her to explain what I read on their website (USCIS.gov) she simply "short answered" me and said that I shouldn't listen to "people."

We consulted a lawyer and he said, "Don't chance it!" We consulted the office of our local Senator and they said that our understanding was correct. Above all, it is clearly outlined on the USCIS website.

WHY ON EARTH WOULD AN IMMIGRATION OFFICER SAY IT'S OKAY???!!!

My wife has been on an emotional roller coaster and hasn't been able to focus on the most important thing about all this...grieving her late mother.

The whole problem with all this is that leaving the country is EASY. They (might) check return travel document, but for the most part it's "See you later." Even with AP, it is the customs and border control officers that will have the authority to permit/deny re-entry. The fact that the (3) year ban is triggered automatically seems to make it virtually impossible to by-pass.

What I am really hoping for is that we can get some type of letter (along with the AP document) acknowledging the fact that Daice was "out of status" for too long, BUT that it is still okay for her to return based upon extreme financial/emotional hardship on myself and our (4) month old baby. Without something like that, it seems really risky.

ANY IDEAS?????

[K&W 0]

K-1 visa was expired when your wife entered US, since it's one-time-entry-only visa.

I know a couple who married in 90 days period of K-1, but haven't filed AOS yet.... longer than 180 days... and stay in US without problem. Actually the wife got EAD. They cannot afford AOS filing fee.

When the wife worried about being "illegal", they went to USCIS to confirm her status, then the officer said "no problem". "As long as you married in 90 days, even I-94 was expired, USCIS don't regard it's unlawful stay". And they asked if there's any window between marriage and filing AOS. The answer was NO. The officer repeatedly recommended them to file AOS ASAP, however there's no specific window.

I suppose you can go forward with expedited AP.

(And, if local office accept I-485 NOA1, you don't need to pay. Even if you file separate, as long as you can prove you filed AOS, you don't have to pay $305. I think it's worth to try. $305 bothered me even my father's urgent situation....)

Even with AP, lawyers say "it's risky, when you come back, your application might be denied." Lawyers are lawyers.

It's all up to your decision, though.