I-131 How do you qualify for Advance Parole

[jula 0]

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.

I don't see a gap in status or unathorised stay. The AOS was filed before I-94w expired. AP is issued to people who are waiting for AOS. There is a warning on a document that it should not be used if one previously overstayed. I don't see an overstay in this case.

What do you mean by " "authorised stay" does not pertain to the applicant leaving the US and wanting to return before the AOS is approved?"

People using AP are allowed to enter the US because of AOS pending.

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.

Everybody, regardless of entry, is having the same status "AOS pending", when they use AP to re-enter the US. I agree though that the question of the intent (representation) of the first entry may come up as an issue at the subsequent entry. OP explained why the entry was VWP instead of immigrant visa. So, they can explain that again at the POE if necessary.

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.

Nobody is guaranteed entry- on VWP, with AP, or even with visa.

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).

That's different from what you say at the begining. AOS applicant is not "out of status".

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.

I agree with that. By entering on VWP and staying, one is loosing some options otherwise available to people who are adjusting status after entering on visas. Being paroled into the US (by using AP) instead of being admitted can hurt the case even more if, for some reason, AOS is denied.

[truthseeker96 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.

thanks alot for the advice. We have infopass tommorow and I will ask them about this (if getting advance parole still doesn't guarantee reentry). An attorney we met with earlier also recommended not leaving the country during the AOS application pending period. However, he also gave some bad advice, so I disregarded everything he said.

Worse come to worse, we'll have to have the wedding ceremony in Guam or Hawaii rather than Japan. Its too bad, my wife really wants to take photos with Kimono in wear the dress in front of the elderly members of her family.