AOS DENIAL

[Rebecca Jo 1,962]

Thank you that's what I was wondering. Whether a paroled I-94 has conditions like "no AOS" or something.

It does, except for humanitarian parole.

The adjustment was abandoned when she left the US, thus the application ended on that date. I believe she is accruing overstay from the expiry of the I94 she was given when she was paroled in.

What puzzles me is why she was paroled in the first place.

Edited January 8, 2012 by Rebecca Jo

[VanessaTony 3,567]

It doesn't.

The adjustment was abandoned when she left the US, thus the application ended on that date. I believe she is accruing overstay from the expiry of the I94 she was given when she was paroled in.

What puzzles me is why she was paroled in the first place.

OOooohhh I see what you're saying.. but I don't think it's right. Based on the OP they didn't apply for AOS until AFTER she came back. So she was in protected status once she filed AOS until they denied it. Either way she doesn't have a ban so no waiver is required. It *should* just be a simple I-130/I-485... the only thing is they will need a whole new medical as I'm sure it's probably expired by now.

[Rebecca Jo 1,962]

OOooohhh I see what you're saying.. but I don't think it's right. Based on the OP they didn't apply for AOS until AFTER she came back. So she was in protected status once she filed AOS until they denied it. Either way she doesn't have a ban so no waiver is required. It *should* just be a simple I-130/I-485... the only thing is they will need a whole new medical as I'm sure it's probably expired by now.

If that is the case then why was the first application denied?

She can't file from a paroled entry, that's why.

[VanessaTony 3,567]

If that is the case then why was the first application denied?

She can't file from a paroled entry, that's why.

No she wasn't denied because of that. She was denied because they tried to AOS based on the K1 visa, which she couldn't do because leaving the US cancels that eligibility. The k1 was dead when she entered on it. She was on a K1 status when she was in the US but after leaving and coming back she was no longer a K1 and therefore unable to adjust based on the K1 visa.

This INA here: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7406.html states that she CAN AOS based on the paroled entry.

Edited January 8, 2012 by Vanessa&Tony

[Rebecca Jo 1,962]

No she wasn't denied because of that. She was denied because they tried to AOS based on the K1 visa, which she couldn't do because leaving the US cancels that eligibility. The k1 was dead when she entered on it. She was on a K1 status when she was in the US but after leaving and coming back she was no longer a K1 and therefore unable to adjust based on the K1 visa.

This INA here: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7406.html states that she CAN AOS based on the paroled entry.

As you wish, Vanessa. Glad to see you've gotten your JD.

[VanessaTony 3,567]

As you wish, Vanessa. Glad to see you've gotten your JD.

Thanks

[Rebecca Jo 1,962]

Vanessa (and other readers)

A "parolee" is considered an "arriving alien". Immigration judges have no jurisdiction over them, so they can't appeal decisions to the BIA. An arriving alien is not considered to have been admitted to the US. They are at the pleasure of the Service with fewer rights than someone on a regular entry.

Hence all is not cut and dried in this case. Meanwhile OP's wife has begun to accrue overstay time (therefore she should not leave the US). There is also the possibility of a removal order being set out. OP and his wife should not hesitate to seek competent legal counsel ASAP.

Rather than rely on information from a website.

Other sources:

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/adjuststatus011207.pdf

http://www.ailf.org/lac/pa/lac_pa_060308_arraliens.pdf

[Brother Hesekiel 2,236]

Thats terrible, Im so sorry that happened to you both. The government is ridiculous.

The U.S. government, meaning We The People? You ask us to take you or your spouse in, and you are spitting at us already?

We The People made rules. The O.P. broke the rules and We The People said: not acceptable. Now do it the right way by filing an AoS petition based on an I-130. Nothing ridiculous about it at all.

[VanessaTony 3,567]

A "parolee" is considered an "arriving alien". Immigration judges have no jurisdiction over them, so they can't appeal decisions to the BIA. An arriving alien is not considered to have been admitted to the US. They are at the pleasure of the Service with fewer rights than someone on a regular entry.

Hence all is not cut and dried in this case. Meanwhile OP's wife has begun to accrue overstay time (therefore she should not leave the US). There is also the possibility of a removal order being set out. OP and his wife should not hesitate to seek competent legal counsel ASAP.

Rather than rely on information from a website.

Other sources:

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/adjuststatus011207.pdf

http://www.ailf.org/lac/pa/lac_pa_060308_arraliens.pdf

Neither of those links apply to the OP as they refer to paroled aliens in removal proceedings, which the OP is not.

I never said it was "cut and dried". Yes they should see a GOOD Immigration Attorney to help them. There are grounds under while a "paroled alien" is permitted to adjust status. I believe the OP will be fine with an I-130/I-485.

See this thread here: http://www.visajourney.com/forums/topic/290807-aos-with-lifetime-bar-but-paroled/page__view__findpost__p__4411736 in which Jim is referencing that the TYPE of parole matters.

Either way there is NO waiver unlike what you claimed there would be. You said they were denied because of the paroled entry, they weren't. They were denied because they tried to AOS based on a K1 that didn't apply anymore. You stated she was accumulating overstay since she entered, this is incorrect. She applied for AOS and while pending (even though it was eventually denied because they weren't eligible) she was STILL in protected status during that time. Her overstay is from the current parole I-94 which stopped once she applied for AOS and restarted once AOS was denied, which was 2 days ago. I mentioned that their I-94 might have a "no AOS" restriction and I wasn't sure if their did. I stated it *should* be a simple I-130/I-485 application, which it should be if the I-94 paroled entry isn't an issue (which it isn't automatically, it depends on the type of entry).

---

OP, speak to an immigration attorney to make sure that her particular type of paroled entry doesn't bar her from AOSing. If it doesn't you will just need to file the I-130 an I-485 package. I would use an attorney now because you don't want any mistakes.

Good luck!

.

Edited January 8, 2012 by Vanessa&Tony