I-131 How do you qualify for Advance Parole

[truthseeker96 0]

My gfriend entered on tourist visa and we got married during the 90 day tourist visa by just a courthouse ceremony. We applied to adjust her status last weekend. Now, we would like to have a more traditional wedding ceremony in her home country of Japan in front of her family. Is this a good enough reason to put on the form I-131 request for Advance Parole?

Any suggestions on ways to "word" our reasoning?

Any help would be appreciated.

3/21/06 entered US on tourist Visa

6/8/06 Married

6/17/06 Mailed I-130 Petition, I-485 Adjustment of Status

[hcj 0]

You are entitled to AP by virtue of the fact that you are an AOS applicant. No special reason necessary. We just said that my husband would like to visit friends and family in his home country while his AOS application was being processed.

[desert_fox 32]

I would not apply for AP. Read the warning in red on the USCIS site. You are an overstaying tourist in the eyes of the USCIS....you leave and and aint getting back in as you chose not to follow the K1 route which is the legally approved way of bringing your fiancee here for the purpose of living in the US.

[VivaMexico 0]

I would not apply for AP. Read the warning in red on the USCIS site. You are an overstaying tourist in the eyes of the USCIS....you leave and and aint getting back in as you chose not to follow the K1 route which is the legally approved way of bringing your fiancee here for the purpose of living in the US.

dittos. You technically broke the law when you married on a tourist visa. I would not leave the country, as it is very likely that the USCIS will not allow you back in.

[Yodrak 7]

jbeabout,

It's not against the law to marry while in the USA on a tourist visa ("technically" or otherwise). And being allowed entry back into the USA is not a decision made by the USCIS.

Yodrak

I would not apply for AP. Read the warning in red on the USCIS site. You are an overstaying tourist in the eyes of the USCIS....you leave and and aint getting back in as you chose not to follow the K1 route which is the legally approved way of bringing your fiancee here for the purpose of living in the US.

dittos. You technically broke the law when you married on a tourist visa. I would not leave the country, as it is very likely that the USCIS will not allow you back in.

Edited June 22, 2006 by Yodrak

[VivaMexico 0]

jbeabout,

It's not against the law to marry while in the USA on a tourist visa ("technically" or otherwise). And being allowed entry back into the USA is not a decision made by the USCIS.

Yodrak

You're correct...I didn't word my reply very carefully. It is not against the law to marry on a tourist visa. It is against the law to come to the U.S. on a tourist visa with intent to marry. See the following post from this site:

BE WARNED:

You must qualify to file for an I-130 in the US. Not everyone does, and in some cases doing so can be considered fraud and result in being deported and banned from re-entry into the US for a period of time. If you attempt to file and you do not qualify your legal status in the US can be placed in jeopardy. J1 Visa holders will almost always require a waiver and should consult with an immigration lawyer or the USCIS for more information. If you have any doubt, consult an immigration attorney.

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

The above conditions are serious and can result in the separation of families for many years if not taken seriously.

[truthseeker96 0]

We didn't enter with the intent to marry. We weren't engaged before we came. She is Japanese and I am American. We came together here (I was living in Japan) and entered the same time. We had originally planned for her to just spend a little time here with me, but we decided to go ahead and get married here.

According to the I-131 instructions under advance parole, those conditions (3 year bar to enter US) apply when you have been unlawfully present for more than 180 days. Also, I filed for adjustment of status during her 90 day tourist visa (day 88 to be exact). According to the instructions, a properly filed adjustment of status application may place her in period of authorized stay. I'm quoting the part of the instructions under III Advance Parole Document Travel Warning.

We had considered her going back to Japan, and me filing for Fiance Visa or Spouse petition, but we could tell from this site that we would probably be separated for a year.

I was able to get an InfoPass for next week. Any chance that we could submit the 1-131 in person and get it approved at the same time?

If they prevent her from re-entering, I'll just have to leave this piece of ####### country myself and emigrate.

[desert_fox 32]

We didn't enter with the intent to marry. We weren't engaged before we came. She is Japanese and I am American. We came together here (I was living in Japan) and entered the same time. We had originally planned for her to just spend a little time here with me, but we decided to go ahead and get married here.

According to the I-131 instructions under advance parole, those conditions (3 year bar to enter US) apply when you have been unlawfully present for more than 180 days. Also, I filed for adjustment of status during her 90 day tourist visa (day 88 to be exact). According to the instructions, a properly filed adjustment of status application may place her in period of authorized stay. I'm quoting the part of the instructions under III Advance Parole Document Travel Warning.

We had considered her going back to Japan, and me filing for Fiance Visa or Spouse petition, but we could tell from this site that we would probably be separated for a year.

I was able to get an InfoPass for next week. Any chance that we could submit the 1-131 in person and get it approved at the same time?

If they prevent her from re-entering, I'll just have to leave this piece of ####### country myself and emigrate.

The local offices do not approve AP///its done thru the MSC in case of a K1....dont know for you.

read the instructions again on the I485....dont think that you will find that a B2 is protected. Im not sure as I chose to follow the K1 route, and they are protected.

Have a nice flight when you leave....sure you will be much happier there, and so will we.

[truthseeker96 0]

The local offices do not approve AP///its done thru the MSC in case of a K1....dont know for you.

read the instructions again on the I485....dont think that you will find that a B2 is protected. Im not sure as I chose to follow the K1 route, and they are protected.

Have a nice flight when you leave....sure you will be much happier there, and so will we.

Thanks for the info re local offices do not approve AP. Even though I've read the instructions of I-485 at least a hundred times by now, I read again. It explicity says that people admitted to US as a visitor under visa waiver are not permitted to adjust UNLESS you are applying because you are an immediate relative of US citizen.

Thanks again for the info.

[VivaMexico 0]

Although it will likely be expensive, I might consider hiring an immigration lawyer for your case because of the tricky circumstances. It sounds like you have studied the law regarding your case carefully, so I don't want to give you anymore advice for fear i'm wrong

Best of luck, and congrats on your marriage!

[Yodrak 7]

jbeabout,

It is not against the law to come to the USA on a tourist visa with intent to marry.

Read the post you quoted again, more carefully. It's not the marrying that's the problem.

Yodrak

jbeabout,

It's not against the law to marry while in the USA on a tourist visa ("technically" or otherwise). And being allowed entry back into the USA is not a decision made by the USCIS.

Yodrak

You're correct...I didn't word my reply very carefully. It is not against the law to marry on a tourist visa. It is against the law to come to the U.S. on a tourist visa with intent to marry. See the following post from this site:

BE WARNED:

You must qualify to file for an I-130 in the US. Not everyone does, and in some cases doing so can be considered fraud and result in being deported and banned from re-entry into the US for a period of time. If you attempt to file and you do not qualify your legal status in the US can be placed in jeopardy. J1 Visa holders will almost always require a waiver and should consult with an immigration lawyer or the USCIS for more information. If you have any doubt, consult an immigration attorney.

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

The above conditions are serious and can result in the separation of families for many years if not taken seriously.

[VivaMexico 0]

jbeabout,

It is not against the law to come to the USA on a tourist visa with intent to marry.

Read the post you quoted again, more carefully. It's not the marrying that's the problem.

Yodrak

jbeabout,

It's not against the law to marry while in the USA on a tourist visa ("technically" or otherwise). And being allowed entry back into the USA is not a decision made by the USCIS.

Yodrak

You're correct...I didn't word my reply very carefully. It is not against the law to marry on a tourist visa. It is against the law to come to the U.S. on a tourist visa with intent to marry. See the following post from this site:

BE WARNED:

You must qualify to file for an I-130 in the US. Not everyone does, and in some cases doing so can be considered fraud and result in being deported and banned from re-entry into the US for a period of time. If you attempt to file and you do not qualify your legal status in the US can be placed in jeopardy. J1 Visa holders will almost always require a waiver and should consult with an immigration lawyer or the USCIS for more information. If you have any doubt, consult an immigration attorney.

If your fiance/fiancee came to the US on a tourist visa with the intent of immigration and marriage, and you are not yet married, then he/she should return to his/her home abroad, and the K-1 visa should be filed (using an I-129f) instead of the I-130 to avoid a denial, deportation, or even being banned from re-entry to the US.

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

The above conditions are serious and can result in the separation of families for many years if not taken seriously.

It seems i'm wrong again, but that is rather irrelevant to the original question...the fact remains that whether it is the marriage that is illegal or not, truthseeker96 is not following the directions specifically laid out by USCIS:

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

Instead of returning to their home abroad and filing the I-130, they filed an I-485 and stayed in the U.S. I am not an immigration lawyer, but I would highly recommend consulting one. They will have a hard time proving they did not come with intent to marry (whether that is the case or not, it looks suspicious that they came on a tourist visa and just happened to get married within 3 months).

[Yodrak 7]

jbeabout,

You're absolutely correct this time, I would make the same recommendation.

Yodrak

I am not an immigration lawyer, but I would highly recommend consulting one. ...

[truthseeker96 0]

jbeabout,

You're absolutely correct this time, I would make the same recommendation.

Yodrak

I am not an immigration lawyer, but I would highly recommend consulting one. ...

We consulted two different attorneys. They said that if you get married within the first 30 days of the 90 day period, it is presumed fraudulent. If you get married in the second 30 days of the period, it is presumed valid. If you get married in the final 30 days, it is presumed valid with a stronger presumption.

Also, one attorney told us that he performs this type of I-485 adjustment of status regularly, and it is straight-forward, unless they stamped NAOS (no adjustment of statu) on the visa waiver (I-94).

I read through another thread on this site in which people not only entered as tourist, but overstayed the 90 day visa waiver period, and then applied to adjust the status, and they all didn't have a problem.

[pj1959us 0]

I read through another thread on this site in which people not only entered as tourist, but overstayed the 90 day visa waiver period, and then applied to adjust the status, and they all didn't have a problem.

No one is saying she won't be able to adjust status...that is a totally different issue. She is in an "authorized stay" while she is here in the US because you did submit the AOS before the 90 days expired, but that does not pertain to the applicant leaving the US and wanting to return before the AOS is approved.

Did you ask the attorneys about her leaving and trying to re-enter the US before the AOS is approved and green card/stamp received? Did the "other thread" refer to leaving the US before the AOS was completed?

Since there was a marriage on a VWP or tourist visa, your spouse will not have the same protection as one that has entered the US (i.e., on a K-1) for re-entry to the US.

If she leaves the country with an AP, just because you may have an NOA for the AOS it is not going to protect her, and she could easily be turned back at the POE when trying to re-enter the country. It doesn't matter if they issue the AP to her...just because she might have one will not guarantee re-entry, because she entered the US originally with intent to be here temporarily.

Technically, she is out of status after the initial 90 days (albeit under authorized stay), even with an AOS NOA, because the AOS is not guaranteed...and will be out of status until the AOS is approved. Depending on how long that takes, if enough time is accumulated, there could also be an automatic 3 to 10 year bar from entering the US (once she leaves the US).

Safest situation, if you intend to remain in US to live, is to wait until the AOS is approved and she either obtains the I-551 stamp in the passport or the green card is received. You can check your local office's processing times for an idea of how long that will take.

Unfortunately, that is one of the problems with marrying while here on VWP/tourist visa.

Edited June 24, 2006 by pj1959us