AP approved but never recieved

[CC90 90]

That changes things a bit, but you still qualify under the regulation if CBP shows a certain level of understanding, which I'm confident they will under your circumstances. Unfortunately, however, you're taking a slightly larger risk by hopping on the plane. But, in reality, knowing CBP, I can't picture them separating a family at the airport over this in your circumstances when they have the authority to parole her and/or defer inspection.

While CBP will probably parole her, dealing with USCIS will be a bit different. Their hands are a little more tied since you left before it was approved. They probably have lost all discretion to adjust her status. This, unfortunately, is when you need to talk to a lawyer who has all your facts. This may have messed you up.

[VanessaTony 3,567]

I like your optimism CC90, the poster ceadsearc above shows a nice timeline of a walk-in appointment for the biometrics and card received 10 days later. The last word from USCIS was, once biometrics were in the system, it would automatically send the AP/EAD combo card into production. This is what I am counting on. I did uncover some disappointing evidence though. We actually did leave before AP approval, I thought we left on the 9th for some reason but my passport is stamped for the 3rd. I will have a copy of my orders handy, we had no choice but to leave. The Navy gives orders, not recommendations.

This does change everything. She may be permitted entry, "paroled" in, but I doubt it. Her AOS will be denied because leaving before AP she abandoned her status.

Unfortunately YOU had no choice but to leave SHE didn't "have" to. You are military, she is not. You had orders, she did not. She could have waited until she had her document. That will be the way they see it.

[stabservo 0]

Leave a mother and a new born baby in a hotel room for an indeterminate amount of time. With no car or help what so ever? Our home and my command is in Japan not California.

USCIS has been told several times that we are in Japan and they have said nothing, they have not updated our status since May. In fact they just made her another appointment, after I told them we were in Japan. I don’t think their hands are tied, if so the case would have been updated as denied when they received my first letter stating we were going back to Japan. Instead they approved the AP.

USCIS I am not worried about, just the border guys.

[stabservo 0]

So I have been playing sea lawyer here...

If a service member or authorized dependent is stationed abroad, the time spent overseas will not be counted against him when qualifying for naturalization even though he is not located in the US...correct?

If a service member or authorized dependent with a green card is stationed abroad, all time spent overseas will not jeopardize his LPR status even though he is not located in the US...correct?

We refer to the underway aircraft carrier as sovereign US territory, does this same assumption stand up to the US Military base overseas?

So why does an authorized military dependent, AOS applicant, need to remain in the US to maintain status but the others noted above do not?

My wife is an authorized military dependent, with DOD identification card, why should she not be able to accompany her husband to his permanent duty station without abandoning her immigration applications?

I have found no precedent relating specifically to this instance, but if the same liberties apply to other immigrant cases, why not the adjustment of status cases?

I will do more research noting sections of the act to tighten up my argument, but I would present this to any inspecting officer, adjudication officer or immigration judge. I b

So I have been playing sea lawyer here...

If a service member or authorized dependent is stationed abroad, the time spent overseas will not be counted against him when qualifying for naturalization even though he is not located in the US...correct?

If a service member or authorized dependent with a green card is stationed abroad, all time spent overseas will not jeopardize his LPR status even though he is not located in the US...correct?

We refer to the underway aircraft carrier as sovereign US territory, does this same assumption stand up to the US Military base overseas?

So why does an authorized military dependent, AOS applicant, need to remain in the US to maintain status but the others noted above do not?

My wife is an authorized military dependent, with DOD identification card, why should she not be able to accompany her husband to his permanent duty station without abandoning her immigration applications?

I have found no precedent relating specifically to this instance, but if the same liberties apply to other immigrant cases, why not the adjustment of status cases?

I will do more research noting sections of the act to tighten up my argument, but I would present this to any inspecting officer, adjudication officer or immigration judge. I believe this precedent needs to be set!

Please present any and all counter arguments, I would love to hear them. I want you guys here to tear this apart so I can make it better!

[CC90 90]

While I enjoy debate, most of us here are not academics that have the time to do this in an environment that is all but academic. I understand this IS currently your life, but you also have to understand that its not ours. We can only help so much without knowing much about you. Consequently, I wouldn't expect a direct reply to your last post that meets your expectations. If you want tailored, sophisticated responses, you're best off meeting a lawyer or someone with similiar credentials in person.

While I _DO_ believe CBP will parole her under your circumstances, your specific AOS application will more than likely be denied since you left before AP is approved. While CBP paroling your wife is a matter under their discretion, duly given to them by the relevant entries in CFR, USCIS does not have such discretion and seems to have no legal authority to approve your application under these circumstances. It's simply the law and regulation. The CFR rules may have changed since the last time I read them; accordingly, I encourage you to read them to see if USCIS has any discretion over this matter.

You must keep in mind that adjusting status is a procedure that is predicated on the applicant being INSIDE the US. If you intend at any point in time to be outside the country for anything other than an emergency and/or very short trip, adjusting your status with USCIS is not the way. USCIS does not have application support centers overseas where you can do biometrics; the Department of State handles consular visa processing and has different methods and criteria. You are trying to do something the system is fundamentally designed not to do; in fact, there is a whole separate procedure in place for precisely what you're doing. USCIS is not obligated nor are there any procedures in place to accomodate you overseas in these circumstances. They have routinely rescheduled appointments for these reasons, however. There is no mechanism for you unilaterally to place the case in abeyance.

The approval of AP in itself does not constitute ANY agency opinion on the validity of your application. Even if it was clearly deniable, AP would still be issued. Again, it is not a reflection of credibility or future agency action. They will not make a decision on the case until your interview--or if you break an appointment. Just because your case hasn't been outright denied yet does not prove any point. CBP handles exits and entires; USCIS has a completely different function. Contrary to popular belief, their computers are not hooked directly to each other. That is, your expectations are high if you think CBP will immediately send the fact that your wife left to USCIS and that they will immediately deny the application based on this fact. Not so.

If you have different opinions on the issue, then you're entitled to them. It will not change the reality. You came here for help--and we gave you our opinions. Telling all of us we're wrong does not change what we're going to say. That doesn't mean we're right, either. After all, we do not know you.

As a fellow US citizen, I am really sorry that our own country continues to make things like this difficult for those that go as far to fight for it. I really sympathize with your opinions, but it's just not always the way it works. Please let us know how it goes.

If CBP does, however, give your wife parole, you will likely to have basis to file a brand new AOS application and continue the process.

Edited November 18, 2011 by CC90

[CC90 90]

So I have been playing sea lawyer here...

If a service member or authorized dependent is stationed abroad, the time spent overseas will not be counted against him when qualifying for naturalization even though he is not located in the US...correct?

If a service member or authorized dependent with a green card is stationed abroad, all time spent overseas will not jeopardize his LPR status even though he is not located in the US...correct?

We refer to the underway aircraft carrier as sovereign US territory, does this same assumption stand up to the US Military base overseas?

So why does an authorized military dependent, AOS applicant, need to remain in the US to maintain status but the others noted above do not?

Your logic breaks here. When your wife is on a US military base, even though it is soverign territory in most circumstances, you wife was not, according to the law, admitted or paroled into such territory by an official designated by the Secretary of the Department of Homeland Security (i.e. immigration officer). Does your wife get an I-94 when entering the base? If not, she was not admitted or paroled and thus has no basis to adjust. This doesn't even touch the fact that your wife left US soil in between.

If this were the case, tons of "spouses" would go onto the base, marry, and file for adjustment right there without even stepping foot in US proper.

There simply is no mechanism for this currently.

Edited November 18, 2011 by CC90

[CC90 90]

Our home and my command is in Japan not California.

This is exactly why you don't use AOS as a way to get permanent residency. These are mutually exclusive conditions.

Edited November 18, 2011 by CC90

[stabservo 0]

I see...I think you missed my point slightly. I agree with you completely, the act does not allow any discretion in this matter. My argument is for an immigration judge to make a ruling for non-abandonment due to military orders.

I did make mistakes I admit. I should have done consular processing, but I maintain that we should not be denied. The act is flawed in this aspect and all it is going to take is one judge to agree with me and set a precedent, the matter of Navy. I foolishly thought that we could get through this process in eight months, I was wrong.

I don’t think people should be able to adjust status outside the US but should not be considered abandoned if stationed outside the US on military orders.

I mean, if this AOS is cancelled then what, my wife gets deported? Not on your life, we reopen the case or file again. We are not criminals; this is an admin issue, no more! They are trying to admin another $1000 from my pocket is all and I plan on standing up against it!

I have changed a policy Navy wide just two years ago regarding base swimming pools and all it did was wet my appetite for debate, argument and changing things for the better. If something is broken we cannot just sit idly by and let the broken system trample all over us. I am asking for our day in court and that judges ears will ring!

Well I thank you for your insight CC90, I think you are the only one who cares about this with me. I will let you know how it goes. I have decided to cancel the December trip, we will travel in February.

Thank you!!

[CC90 90]

Exactly; your wife will never be deported over this.

While a judge will probably not outright say "you didn't abandon status", if you take the USCIS denial to court (this only after you've exhausted all admin appeals; perhaps years), you can renew your application to adjust and the judge has adjudicating authority to approve it on the spot under it's own merits. However, you're likely to spend more money filing the administrative reopening and subsequent appeals to be able to take the agency to court. All of this while your wife has no documents for possibly years.

The other option is getting placed in removal proceedings and renewing the AOS application there. This would usually happen automatically once the AOS is denied and you stay past 30 days. However, USCIS and ICE are currently only doing this to people with criminal records. Thus, while you would actually want to be placed in removal proceedings in this case, this has ironically gotten much harder!

While I've never been in the military, you may want to figure out if there's a support system for the DOD/USO/something to pay for this considering the situation. This would do you justice and get your wife the documents to which she's entitled.

Please let us know how it goes.

[Bobby+Umit 161]

What are some thoughts on my situation...?

I am a US citizen service member married to a Peruvian foreign national. We live in Japan where my command is stationed. My command deployed to California for eight months, my wife accompanied me on a B1 visa and gave birth to our son. We were also married in the US prior to this trip.

While in California we applied for adjustment of status, filing an I-131 concurrently. The I-131 was approved just days before the orders came down that we were to pack up and go back to Japan. Now we have an I-131 approved, according to the website it is on "Post Decision Activity", we changed our address to my FPO and shipped back to Japan.

I received confirmation through my FPO of the change of address but never received the travel document. Five months have passed and we have done one service request and contacted my congressman to help resolve this issue of never receiving the travel document. When we submitted the I-131 I was sure to clearly state we were a military family traveling back to my permanent duty station in Japan until my PCS date of February when we would be returning to the US permanently. As February draws near we still are not in possession of our approved travel document. If worse comes to worse can we reenter the US having the AP approved in the system but without a hard copy?

Meanwhile I have a step daughter in Peru who successfully completed consular processing for her green card and we will be going to Peru to pick her up before coming back to the US permanently. So when we do enter, we will be doing so as a family of four with no outbound airline tickets. Two citizens, one new green card holder and one with an I-485 pending. What are the chances they will turn around a mother in our situation?

Prior to traveling - make an INFOPASS to USCIS local office, and get a stamp to allow the travel (AP if you will) - if your approved - there should be no issue getting this stamp, due to your circumstances.

If you leave without the AP, she will not be able to return unless she would use her B-1 (if it is still valid - it should still be unless it expired).

The AP would of let her in if she doesn't have that B-1.

Since the AP is approved as you say, you didn't abandon the AOS - however, not having it (and leaving/returning) could cause some sticky situations later down the road.

However - since you are in the military, and USCIS will make some accommodations for you - you should consult with your JAG on base/command to see what they can do for you.

Your not the first service member to get married to a foreigner!

[Darnell 8,479]

There should be an immigration liason person attached to yer command. Find that person, start using them as yer conduit.

Soonish.

[stabservo 0]

Si, not the intilectual conversation I had hoped for but...WFT mate!!

[Darnell 8,479]

I'd ask the same question (#######, mate) of the Immigration Liason Staffer attached to yer command.

Soonish.

Good Luck !

[stabservo 0]

OK...an update and another question...

After calling the USCIS office I find out that they mailed me a notice stating that military members and their dependents can have biometrics taken overseas via fingerprint cards and mail them to the National Benefits center, so we did. It has been a few weeks now and no update to our case. I am thinking that the holiday season will slow down things a bit, has any one out there ever mailed in finger print cards?? How long did it take to get an update on your case??