Can she leave USA during AOS and risk triggering the 3 or 10 year bar?

[Tiggy-JIggy 0]

yea.. why would she risk coming..

ps.. did the sister (korea) come to USA for Sister (f1 student) herre..?

Hi Skiptex, yes, her sister has in the past come to visit her. I'm not sure why that's relevant?

[Tiggy-JIggy 0]

First, it's really never a good idea to leave with AP even if you have absolutely no issues. If something happens to the process (i.e. you're denied or miss a notice), you're taking a risk. That's not to say that AP works--and works well--for those that use it correctly, but it's generally advisable to not leave unless absolutely necessary. They've cut down the processing times in most offices to a matter of just a few months, so it's not that long of a wait considering the immense benefit.

You are correct in saying that she does not build unlawful presence until she is found and notified to be out of status. However, if she has fallen out of status because she is no longer a student or enrolling in classes, her SEVIS record has most likely been terminated. This notification from her school is exactly that notification (to which you've referred) that she is now in unlawful presence. If she has fallen out of status because she worked when she wasn't supposed to and nobody knew about it, then, yes, she would still be in lawful presence even if you admitted it on a G-325A. It really depends how she fell out of status. If she hasn't been studying, then you can bet she's been in unlawful presence.

The visa expiration date means nothing in terms of her status. The visa is used for entry. She can enter on the absolute last day that it's valid and stay entirely until she completes her studies and/or OPT legally. The visa is solely an entry document and, by itself, is no proof of her status.

Even if she does trigger a bar by leaving, she will most likely be let back in on AP--so don't take this as a green light if this happens. They will find her inadmissible at the interview if a bar has been triggered, not when she uses AP. This is, of course, assuming that the AP hasn't been revoked because of a denied application. In this case, she will be turned away. This is the distinction between "paroled" and "admitted" to the US. CBP just checks to make sure that you've already been granted parole (they can't really argue with it--unless it's been revoked), but that does not mean you've been admitted.

If she has been in unlawful presence, the amount of time since her SEVIS record has been terminated is crucial. Has it been more than 180 days? If so, there's a 3 year bar. It goes up from there. If not, she, in theory, won't have an issue even if she's been out of status (for less than 180 days). But it's still a risk any way you put it.

Hello CC90. Thank you for your input.

She stopped attending classes Sept 2010 (so we're now, as of today Oct 2 2011, at the 1 year point).

Her I-20 was terminated April 2011 (so we're now, as of today Oct 2 2011, at the 6 month point).

[Tiggy-JIggy 0]

The key word is "may" in that statement. You MAY be admitted under advanced parole. You also MAY not. If your departure triggered the 3 or 10 year ban, you fall under the category of someone who may (almost certainly) not. There is a reason it is widely advised that someone who has overstayed long enough for a ban not even bother to file for AP. I would be shocked if you could find many (or any) cases of someone who has overstayed long enough for a 3 or 10 year ban being let back in on AP. You will, however, likely find plenty of cases of people who made that mistake and were NOT let back in.

Thanks for all your input, Ceadsearc. Much appreciated!

What do you think about us scheduling an Infopass appointment with USCIS to discuss her case and ask if she'll be permitted re-entry or not?

[Tiggy-JIggy 0]

Yes, agree with above. I saw a case where someone was let back in with AP but then their AOS was denied because they had triggered the bar and shouldn't have been let back in with AP. If your friend quit school, her "Status" has expired, so D/S is over. D/S doesn't mean forever as long as you want to. It means, as long as you are in school.

Thanks for your advice, Harpa. In that case you mentioned, was that person who triggered the bar someone with a D/S on their I-94? I think that's a crucial point.

Next question: do you think we should we schedule an Infopass appointment with USCIS to discuss whether she'd trigger this bar or not?

Edited October 2, 2011 by Tiggy-JIggy

[Penguin_ie 5,993]

Is AOS already filed? If so, I think an info pass appointment would do no harm, as they will not deport her with a pending AOS. BUT it may also not do much good. If the infopass guy says "don't go", you have your answer. But if he says "yes you can go", there is still uncertainty because as JustBob explained, USCIS (=infopass) and CBP at the border are two different entities, and CBP may still decide not to let her back in.

[Tiggy-JIggy 0]

Is AOS already filed? If so, I think an info pass appointment would do no harm, as they will not deport her with a pending AOS. BUT it may also not do much good. If the infopass guy says "don't go", you have your answer. But if he says "yes you can go", there is still uncertainty because as JustBob explained, USCIS (=infopass) and CBP at the border are two different entities, and CBP may still decide not to let her back in.

It's not filed yet, no, but should be in the next few days. We will certainly be sure to only set up the appointment after we have filed for the AOS.

I also take yours and JustBob's point that what one individual in one department says may have no influence whatsoever on how another individual in another department decides to act. But even so, the question remains, if we did decide to at least go for an InfoPass appointment, is that dangerous in any way? Are we just drawing attention to her case? Would she be snapped up and led away in plastic handcuffs?

[ceadsearc 516]

It's not filed yet, no, but should be in the next few days. We will certainly be sure to only set up the appointment after we have filed for the AOS.

I also take yours and JustBob's point that what one individual in one department says may have no influence whatsoever on how another individual in another department decides to act. But even so, the question remains, if we did decide to at least go for an InfoPass appointment, is that dangerous in any way? Are we just drawing attention to her case? Would she be snapped up and led away in plastic handcuffs?

Once the AOS application is filed and the NOA1 is received, the beneficiary enters a new period of authorized stay. So for the time period the AOS is processing, she is not here illegally. So no, she won't be arrested nor will it cause issues if she already has her NOA1 in hand. But it is dangerous in that she may be told something by a USCIS officer who isn't aware that CBP is going to deny her re-entry.

[Larry86 2]

Hello Wise Ones!

I would appreciate your collective wisdom.

My friend is married to a US citizen. She is about to file the AOS paperwork to adjust from F-1 and wants to also file for Advance Parole to leave the USA during the AOS process so she can attend her sister's wedding back home in South Korea in December. Is this advisable or not?

The tricky part? She has fallen out of status as a student.

Now, an important point to note is that although she has violated her student status, her visa does not end until January 2012. Therefore she has not overstayed her visa and she is still within her 'Duration of Status'. According to my research on these forums and elsewhere, because her I-94 is stamped with 'D/S' (and not a specific departure date) and because no USCIS or Immigration judge issued her with instructions to leave, she is therefore not in 'unlawful presence' and therefore will not trigger the dreaded 3 or 10 year ban upon leaving and attempting to re-enter the USA.

To be sure about this, I checked this with an immigration lawyer.

Her response: 'Yes, technically you're right. Technically! I have never experienced that happen to a client, though with immigration you never know if any individual immigration officer decides to take exception to the fact she had been out of status and bar her'.

Since this lawyer has been in the business 30 years or so, she is very well-connected and on first name friendly terms with many immigration officers, immigration officials etc. (To the extent that she even knows their favorite TV shows and discusses who did and didn't win last night on 'Dancing with the Stars'!) :dance:

She therefore phoned up an actual trial attorney who works for USCIS to get his opinion. He also agreed that since she has the D/S in her I-94 and didn't overstay and was never investigated nor issued with instructions to leave, that yes, it appeared she would not trigger any 3 or 10 year ban. He said he had never experienced that happen in all his years, though again (he himself said) one never knew how things might be interpreted.

However, both he and our immigration lawyer, did say that there is a 2nd potential obstacle. Although she might not necessarily be prevented from re-entering the USA, when the time comes for USCIS to later 'adjudicate the benefit' (AKA: make a decision about her AOS), at that point they could decide against her because she had violated her student status.

My feeling is that she has violated the student status anyway, whether she goes or not. Therefore, as long as she gets back into the USA (which appears probable), she should go anyway.

Our immigration lawyer however recommends that she skip her sister's wedding and stay in the country throughout the AOS process.

My friend is torn on the issue but of course desperately wants to be at her sister's wedding.

Thoughts / input / advice welcome....

If she hasn't filed yet and been out of status for less than five months she should work with the school to do a travel to assume to get back in status before filing her paperwork. The cost is fairly low, it doesn't take that long as she just has to go Canada or Mexico, and it would allow her to get AP when applying for AOS so that she could attend her sister's wedding.

[Brother Hesekiel 2,236]

The D/S thingi is like a curtain in a Twilight Zone. She "should" be okay, but then again, CBP may see it differently, and when upon questioning they find out she is now married to a U.S. citizen and about to file for AoS, may not like that very much.

I would strongly advise against tempting the gods here.

[Tiggy-JIggy 0]

Hello

further to my post here...

http://www.visajourney.com/forums/topic/332207-can-she-leave-usa-during-aos-and-risk-triggering-the-3-or-10-year-bar/

...which describes my friend's situation, we are now considering a new plan of attack, so that she might attend her sister's wedding in December.

To summarize her situation again:

- F-1 student

- out of status (hasn't attended classes since Sept 2010 due to birth of baby)

- I-20 was terminated April 2011

- I-94 shows D/S, therefore she has not overstayed visa

- married a US citizen

- about to apply for AOS

- wants to attend sister's wedding back home in December 2011

- all the advice which we've received (from our immigration lawyer, from this forum) strongly discourages her from leaving the country using Advance Parole after she has filed for AOS, as due to being out of status, there's a definite risk she might trigger a 3 year ban. (We now agree, this does indeed constitute too big a risk)

So what's the new idea we had?

Here it is: what if she were to leave the USA first (in December) and only apply for AOS from overseas.

Is such a thing possible? What are the pros and cons of doing it this way?

Yes, it will be crappy that the family would be separated for several months (4? 5? 6?), but let's ignore that for now.

Perhaps the technical term would not be AOS. Maybe it's a petition being filed by the US citizen spouse to bring his overseas wife and baby into the country? Not sure...that's where you guys come in.

Thoughts everyone?

[Anh map 2,098]

Leaving the US triggers the ban. Your scenario includes leaving the US. The US citizen child would not need a petition.

Your spouse would have to go though the entire process ( http://www.visajourney.com/content/i130guide1 ) and serve out the ban before US entry.

The smart move is to miss the wedding.

[milimelo 4,481]

She can leave the US and have her husband file I-130 from the US. SHe gets to wait in her home country for consular visa processing. She doesn't get to go back to the US and file AOS and she can't file for AOS from overseas - seriously, what kind of scheming is that? Any overstay - and there seems to be 1+ year of reported SEVIS will get her a 10-yr ban - have her husband start on the I-601 as well while he's at it. What was on her I-94 with D/S means while she was in student status. Once she dropped out of school she was reported and overstay time started accruing - so Do NOT attempt to play the D/S card.

OR, she can stay put and go see her sister after she gets her green card.

Weigh cons and pros before making such decision.

[Ban Hammer 13,349]

related topics have been merged.

[sachinky 465]

Thanks for your advice, Harpa. In that case you mentioned, was that person who triggered the bar someone with a D/S on their I-94? I think that's a crucial point.

Again, D/S means 'duration of status' -- it does not mean as long as you want it to be or whatever you want it to mean. If you are not in status, then you are OUT of status. It's really that simple. There's a grace period of 60 - 90 days (I can't remember which) to sort out your affairs but she seems to be way past that point.

[sachinky 465]

So what's the new idea we had?

Here it is: what if she were to leave the USA first (in December) and only apply for AOS from overseas.

Is such a thing possible? What are the pros and cons of doing it this way?

Yes, it will be crappy that the family would be separated for several months (4? 5? 6?), but let's ignore that for now.

Perhaps the technical term would not be AOS. Maybe it's a petition being filed by the US citizen spouse to bring his overseas wife and baby into the country? Not sure...that's where you guys come in.

Thoughts everyone?

It would not be an AOS (Adjustment of Status -- you can only do this from within the US from your original status) from abroad -- it would be a CR-1 via consular processing. She would also be subject to a re-entry bar depending on the length of her unauthorized stay.

Personal opinion: For God's sake, it's only a wedding. The sister will get married anyway. And if she cares so much, maybe she could post-pone her wedding so that your friend could attend it once she has the GC safely in her hand. Your friend seems to have made several mistakes already -- falling out of her F-1 status, having a baby and dropping out of college -- I would suggest NOT tempting the immigration Gods any further. It sounds like she has the answers already, she is just dithering on making the correct, rational decision. Also given that they have NOT filed for the AOS yet, she is unlikely to even receive her AP by December, leave alone the fact that it would be most foolhardy to use it.

Edited October 15, 2011 by sachinky