"Waiver of Inadmissability" to continue the Adjustment process?

[Andonios 0]

If my immigrant wife travels on a I-131 to visit her mother while her Adjustment of Status is still pending, does she have to file a "Waiver of Inadmissability" to continue the Adjustment process?

I was just reading the instructions on the I-131 and it said: "Therefore if you resume an adjustment application that was pending before you left, you will need to apply for and receive a waiver of inadmissability before your adjustment application may be approved or your status continued."

Does this mean that if my wife is away for 6 weeks, our entire application is put "on hold" for those six weeks?

We were intending to send the I-131 along with her Adjustment of Status application, but we're worried that this might not be a good idea. Because maybe they will not even consider the Adjustment of Status if they see that she wants to travel.

Please give us your thoughts and ideas on the I-131, the waiver of inadmissability, and the wisdom of sending all of these forms together?

Thanks.

Andonios

[Kathryn41 3,205]

Ok - you are reading the part of the instructions that apply to individuals who have overstayed their status in the US for more than 180 days. You need to read over the instructions carefully because not all of them apply to your situation. If your wife does not have more than 180 out of status days she would use an I-131 Advance Parole to leave and return to the US while waiting for a decision on her filed I-485. If, however, she does have more than 180 out of status days and leaves the US, even with an I-131, her leaving would trigger a 3 year or 10 year ban on re-admission depending on how many out of status days she has. The instructions talk about applying for a Waiver of Inadmissibility IN THOSE CIRCUMSTANCES ONLY - that is, only if she has triggered a 3 year or 10 year ban by leaving the US. In that circumstance, yes, she could apply for a Waiver of Inadmissibility and the I-485 would be on hold until a decision is made on whether or not to grant the waiver.

If she has no out of status days then she would not trigger a ban on leaving the US and there is no reason for the US to deny her re-entry (unless there is some other factor involved like a criminal record, etc.). She would not require a waiver of inadmissibility, because she is not inadmissible. She would present the I-131s to the border officials who would stamp them, keep one and return the other one to her. She is then paroled back into the US. Processing on her I-485 has never stopped and may even be completed while she is out of the country, in which case she would use the AP to re-enter and collect her green card.

If your wife has no out of status days in the US, then yes, send in the I-131 along with the EAD and AOS applications. If she does have out of status days and they are more than 180 then the AP is useless to her - they would deny her re-entry and then she would need to file the Waiver of Inadmissibility.

I hope this helps. I know instructions can be rather confusing at times, but read over the 'headings' for each area of the instructions carefully - the form is used for a variety of different types of applicants and not all will apply to you. You might want to carefully highlight only the absolutely relative parts of the instructions for your situation - it will help to make it easier to understand. Good luck.

Edited May 8, 2009 by Kathryn41

[Andonios 0]

Dear Kathryn41,

Thank you so much! I had a feeling that perhaps I was reading a section of the instructions not-applicable to my wife. Thanks for your very helpful and detailed response. We both appreciate your taking time to explain this to us.

Ok - you are reading the part of the instructions that apply to individuals who have overstayed their status in the US for more than 180 days.