i-131 action plan?

[AtariBaby 17]

Forgive me if this is a tiresome subject but I didn't find my answer searching.

I'm using a combination if Ilona Bray's NOLO book and this forum (and deferring to the sage advice of you friendly people when there is discrepancy!) In the book she warns against using an I-131 because someone might not let you back in regardless, but then goes on to say that pretty much everyone who files gets approved for one.

So my first question is in regard to my wife, who overstayed on her tourist visa after we got married, and is getting pretty homesick. Is it a fine idea or a bad idea to submit the advance parole document i-131 so she can maybe visit Canada before her status is adjusted?

If it's not risky to do so, what's the best strategy? Looks like 90 to 100 days on average for approval. So should we submit with the i-485 stack of documents, with a proposed travel time of say 110 days later?

Do you have to stick to exact "Date of Intended Departure" and "Expected Length of Trip"?

[ceadsearc 516]

How many days of overstay did she have between when her I-94 expired and the date on her NOA1 from her I-485?

[Harpa Timsah 13,258]

You will get approved for I-131 even though by using it you may be barred from entering, that is true. Being approved does not mean you can successfully use it. You need to determine how many overstay days she has, to see if she has a ban on her head or is coming dangerously close to one. Being married to you does not give her any protected status, but the time you have been waiting for AOS does not count. Let us know and we can help more.

[AtariBaby 17]

Well there have been a lot of delays in submitting our paperwork. Ultimately, I'm to blame for that. She last entered the country December 13 2010 from Canada, and rather than let her go back again, I proposed to her at Christmas, then we were married in the US 11 months ago. She's stayed in the US since. I'm just now planning to send in our i-130 and i-485 packets now, before the 31st of the month. I guess maybe we should wait until her paperwork is properly approved and not take any chances!

Edited January 25, 2012 by AtariBaby

[Harpa Timsah 13,258]

She most definitely has a ban on her head, so she cannot use AP (she will get approved for it though if you apply, beware - see above post). If she leaves the country, she will trigger that ban, and AP will not erase it. She arrived Dec 13 2010 and was most likely given 6 months stay, so probably around June 13, 2011. She has overstayed that date by 180 days, so she has a 3 year ban if she leaves the country.

Once she gets her GC, she can travel, because the GC status will effectively erase the ban as long as she stays in the country until GC is approved. You'll have to wait for GC to travel, you cannot use AP. Sorry and good luck.

[ceadsearc 516]

Definitely do not bother with AP. Everyone is approved as long as they submit all the paperwork but with the amount of time she has been out of status she will definitely receive a ban if she leaves the country, meaning not only would the AOS be abandoned but she would need a waiver to be able to return even on a spousal visa. AP is perfectly safe and not risky to use for someone who hasn't overstayed but in your case would be a disaster. Hopefully her AOS will be approved quickly and then she can use her green card to travel.