Should we travel on AP?

[MoveAndy 1]

Hello everyone!

I became a US citizen earlier this year and applied for my wife on March 11, 2011. She had biometrics done on April 29, and I'm hoping that AP + EAD is just around the corner.

Here's my wife's situation:

She came to USA in 2000 on a tourist visa (She was 11 years old)

Overstayed 10+ years

Applied on March 11, 2011 (Package Sent)

Current Age: 21

Now, here's my question:

I'm going back to visit my country in July, and she's very eager to come along with me. Should I take her on Advance Parole? I was definitely going to go for it, until I read about a 10 year ban on her since she has overstayed. However, I'm also reading that once you're married to a USC, the ban is forgiven. Can someone please take some of the precious time out to answer my question in full details?

Thank you for reading!

Regards,

Andy

[Little_My 464]

The overstay will not negatively affect her AOS, but it will prevent her from leaving the US until she has the actual physical green card. The 10 year ban that she has because of the overstay still exists - and will come in effect if she leaves the country before she is a legal permanent resident. They will issue her the AP, which is the confusing part for overstays because it gives many the impression that it is OK to travel, but even with the AP, if she travels abroad the 10 year ban will trigger.

So no - she should not travel with you outside the US until she has the actual green card in her hand.

Edited May 7, 2011 by Little_My

[Brother Hesekiel 2,236]

No, the overstay will not prevent her from leaving; it will prevent her from returning until 2021 if she leaves.

DHS is the mother, USCIS, CBP and ICE the children.

Your wife asks USCIS for AP. She'll get it, travels to Italy, and when she comes back CBP will tell her to turn around and fly back to Italy.

"But I got AP from USCIS!" she will say, to which CBP's response is: "But not from me! Why don't you write a letter of complaint to USCIS or DHS . . . from Italy! Now turn around and get outta my sight!"

Another example: your wife gets a notice to serve as a juror. If she does, her American Dream ends for good.

Edited May 7, 2011 by Just Bob

[MoveAndy 1]

Traveling with a conditional green card shouldn't be a problem, right?

[Little_My 464]

When she has the Green card, she is good to travel wherever she wants.

[MoveAndy 1]

When she has the Green card, she is good to travel wherever she wants.

Thanks for your reply.

One more questions which is pretty off topic:

My wife's mother and her younger brother (19 years old) have also overstayed since 2000. When my wife becomes a USC in a few years, can she file a petition for them to make them legal as well? Would they be able to adjust their statuses through my wife?

Thanks once again for your prompt replies.

- Andy

[Dakine10 5,452]

Thanks for your reply.

One more questions which is pretty off topic:

My wife's mother and her younger brother (19 years old) have also overstayed since 2000. When my wife becomes a USC in a few years, can she file a petition for them to make them legal as well? Would they be able to adjust their statuses through my wife?

Thanks once again for your prompt replies.

- Andy

When your wife becomes a USC, she can file for her mom, but not her brother. Her mom qualifies to adjust status as an immediate relative but her brother does not.

The only way her brother could adjust status would be through marriage to a USC.

[MoveAndy 1]

Thanks for clearing the confusions for me, appreciate it!

[VanessaTony 3,567]

When your wife becomes a USC, she can file for her mom, but not her brother. Her mom qualifies to adjust status as an immediate relative but her brother does not.

The only way her brother could adjust status would be through marriage to a USC.

Qn 'cause I don't know for sure... The mother can adjust' cause of immediate relative (so the out of status is irrelevant) but brother can't because he can't AOS from being out-of status... right? So she CAN petition the brother, it'll just take a really long time and he'd need to leave the country and wait out the ban and what not... right? So for the OP the best option would be to AOS the mother, then them other apply for her child once she's a USC?

[Brother Hesekiel 2,236]

Wife becomes USC in mid-2014, petitions for mom. Mom becomes LPR late in 2014, then USC in late 2019, petitions for her "other" son. He becomes LPR in mid 2020 . . . if he hasn't been deported by then.

P.S.

Error on my part. The "other" son will have aged out (over 21) by then. Doesn't work for him. He could only adjust through marriage to a US citizen.

Edited May 7, 2011 by Just Bob

[Dakine10 5,452]

Qn 'cause I don't know for sure... The mother can adjust' cause of immediate relative (so the out of status is irrelevant) but brother can't because he can't AOS from being out-of status... right? So she CAN petition the brother, it'll just take a really long time and he'd need to leave the country and wait out the ban and what not... right? So for the OP the best option would be to AOS the mother, then them other apply for her child once she's a USC?

Yes, for consular processing either she or her mom can petition the brother when they become USC's. Actually the mom can when she becomes a LPR. The visa bulletin has 11 years for processing for siblings and 8 years for unmarried children of USC's over 21.

The choices, I guess, would be to leave and wait out the 10 year bar while waiting for the visa to become available (so the bar and visa processing wait would be simultaneous), or wait here and then serve out the bar later after the visa becomes available.

If he tries to go the latter route he would be in his 30's by the time he leaves and gets the 10y bar so it's conceivable marriage and AOS would be a possibility before that.

I think that's about it for the options.

[stu redman 4]

sorry to jump in just bob thanks for the info on the jury duty i wouldn't have thought of that only a usc can go to jury duty so any right that a citizen is required to perform can mess up an immigrant.

is there a list on the site for that?

thanks

[Dakine10 5,452]

sorry to jump in just bob thanks for the info on the jury duty i wouldn't have thought of that only a usc can go to jury duty so any right that a citizen is required to perform can mess up an immigrant.

is there a list on the site for that?

thanks

Actually, I'll chime in on this too. It is debatable whether serving on a jury in and of itself would result in a bar. Not that I would reccomend doing it, but the actual text from the INA reads as follows:

Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A ) or any other Federal or State law is inadmissible.

To be inadmissible, the claim of USC must be done for a benefit or purpose. For example, the 8th circuit court ruled in 2008 that checking USC on an I-9 form is definately for purpose or benefit and thus anyone who falsely marks USC on the I-9 will be inadmissible.

There is a general agreement in all branches of DHS that the false claim of USC must be wilfull (although the INA does not specifically state this). That means if you mistakenly checked a box or don't understand english, or someone else filled it in for you, you may be found admissible (although the burden of proof is on the immigrant). This is also the case if you believe you are a USC even though you are not (ie. parents lied to you etc.). This also generally applies to minors, as they are not considered to be capable of wilfully claiming to be USC's. The wilfull part is discretionary though, and a well know exeption is the US consulate in Ciudad Juarez, who do not take into consideration whether the claim was wilfull or not.

Anyway IMO the defense against jury duty would be that there was no purpose or benefit to doing it.

[Brother Hesekiel 2,236]

The "old" I-9 form did not separate between US citizens and non-citizen nationals, which is why it had been successfully challenged in court and ultimately changed to the current form. But, in order to serve as a juror, one has to state to be a US citizen, in writing. That's a clear cut of false claim of US citizenship, and a clear case of inadmissibility for life,with no waiver available.

I actually had exactly a case like his about two monhs ago, from a German woman who went to court, told the clerk that she's a Green Card holder, and the dumb-as-sh*t clerk said told her thatt this would be no problem. She served, the case had to be unraveled, and her N-400 was denied. She was stripped of her resident status and ordered deported.

[Dakine10 5,452]

The "old" I-9 form did not separate between US citizens and non-citizen nationals, which is why it had been successfully challenged in court and ultimately changed to the current form. But, in order to serve as a juror, one has to state to be a US citizen, in writing. That's a clear cut of false claim of US citizenship, and a clear case of inadmissibility for life,with no waiver available.

I actually had exactly a case like his about two monhs ago, from a German woman who went to court, told the clerk that she's a Green Card holder, and the dumb-as-sh*t clerk said told her thatt this would be no problem. She served, the case had to be unraveled, and her N-400 was denied. She was stripped of her resident status and ordered deported.

Actually as I thought about it after posting, it would be hard to argue that jury duty does not have a purpose and it does fall under state law so I see how that would be an impossible defense to make. The only defense really would be if you somehow served without actually stating that you are a USC.

Did the woman try any kind of defense strategy or was there no point?