Why is there an AP?

[Anna C. 4]

Hi,

Does anybody know the reason of AP, why it was implemented? My husband and I just don't see the reason behind it. What would it hurt if spouses travelled back home for a week or two? A lot of us have some stuff to do, e.g. I'd like to organize the transport of all my stuff to America (flatware, dishes, pictures, ski, etc.).

We are just curious to know.

Thank you!

Anna

[raymaga 25]

I think most of us have wondered the reason why the foreign spouse cannot leave the U.S. Unfortunately, USCIS doesn't seem to think they need a good reason, so we have to follow their rules.

You will be able to leave the U.S. as soon as your AP is approved or you get your Green Card. Sometimes, you will get your AOS interview before the AP is approved. If this happens, then the AP is no longer needed.

You will just have to wait a little longer to go back home and get your things organized.

Good luck for an approval soon.

[Saddle Bronc 124]

Probably some archaic (say late 19th or early 20th century) regulation which allowed them to see who was in US legally waiting for permanent residency to be completed vs student/temp-worker vs illegal.

[zyggy 9]

The reason that once the time from the K1 visa expires you do not have any status in the US. Once you file for AOS, what you're doing is telling the US Government "Hey, I have a right to stay in the US because I have a familial relationship with a US Citizen and am entitle to a benefit from the US Government"... The US Government says back.. "Ok, we'll let you stay in the US until we can process your application to see if what you state is true and you are eligible for the benefit"...

This relationship does not give one the right to enter the US if one decides to leave... Therefore, one must apply for a benefit that gives the ability to physically reenter the US to complete the process... That benefit is Advanced Parole.

Applying for this benefit tells the US Government "Hey, I need to leave the US... I'm letting you know this to tell you that I still want the benefit that I previously applied for and still wish to remain in the US permanently"... When they grant it, they're stating... "Ok, well let you leave, and while we will let your physical self enter the US to wait until the benefit is granted or denied, we will not allow your legal self to enter the US until the benefit is granted"...

Edited October 2, 2006 by zyggy

[am1996 0]

... When they grant it, they're stating... "Ok, well let you leave, and while we will let your physical self enter the US to wait until the benefit is granted or denied, we will not allow your legal self to enter the US until the benefit is granted"...

Zyggy, I don't know if I necessarily agree with your physical vs. legal self distinction.

As I've previously posted, in the context of an AOS petition, "continuous legal presence" in the US since the filing of the adjustment of status petition is one of the legal requirements for qualification. Congress provided a narrow exception to the physical presence requirement by directing that "an alien shall not be considered to have failed to maintain continuous physical presence in the United States for the purposes of sub paragraph (A) by virtue of brief, casual, and innocent absences from the United States." 8 U.S.C. 1255a(a)(3)(B ). The Attorney General, by regulation, interpreted an absence to be "brief, casual, and innocent" only if the alien obtained advance parole before leaving the United States or if the departure was out of the alien's control. 8 C.F.R. 245a.2(B )(6). "Advance parole" consists of the Attorney General's regulatory pre-authorization for an alien to be paroled into the United States upon arrival at the border without the appropriate visa or other documents necessary to enter lawfully. 8 C.F.R. 212.5(f).

The Board of Immigration Appeals has interpreted the statutory exception to the continuous physical presence requirement for "brief, casual, and innocent absences" as only preserving the alien's eligibility for legalization under the Immigration Reform and Control Act, and not as a substantive redefinition of an entry into the United States for other immigration purposes. In re Singh, 21 I. & N. Dec. 427, 434-435 & n.8 (1996) (en banc).

All that this appears to mean is that for the purposes of the "continuous presence requirement" found in AOS statutes, authorized brief, casual, and innocent absences are not deemed legal "departures" and/or "readmissions" to/from the US. For all other purposes, your rights, privileges and obligations under the law remain exactly the same as if you had to qualify for an "entry" under the applicable statutes.

P.S.

Please do not misinterpret this post to mean that AOS applicants who have otherwise committed infractions of US immigration laws can leave and reenter the US with impunity if they just obtain advance parole (they can't). That issue is completely separate and distinct from the distinctions that are being discussed above.

The reason that's the case is because the courts have generally construed the "brief, casual and innocent" absences exception I discussed above as only applicable to the "continuous physical presence" requirement of legalization.

It does not affect the generally applicable definition of what constitutes an "entry" into the United States under the law, since the courts have also inferred that Congress only intended to bestow travel privileges on lawful temporary residents (as opposed to the ones who were here unlawfully prior to their departure). This allows the border patrol to review the "entry" for compliance with all other legal requirements (other than the "continuous physical presence" requirement of AOS eligibility) which causes may cause significant problems for people who violated immigration laws prior to their departure.

[brtlmj 0]

Does anybody know the reason of AP, why it was implemented? My husband and I just don't see the reason behind it.

Neither do I. My guess is that it made perfect sense long ago, when you would travel to the US by ship, and getting a GC would be much faster. Nowadays it (and a good part of the entire immigration process) is pure BS, but hey <irony> IT'S THE LAW ! </irony>

I'd gladly pay a higher application fee to get my GC within a month or two instead of paying for AP and EAD.

The reason that once the time from the K1 visa expires you do not have any status in the US. Once you file for AOS, what you're doing is telling the US Government "Hey, I have a right to stay in the US because I have a familial relationship with a US Citizen and am entitle to a benefit from the US Government"... The US

[....]

to wait until the benefit is granted or denied, we will not allow your legal self to enter the US until the benefit is granted"...

Yep, that's the law. The problem is, it's a bad law. It benefits noone and feeds bureaucracy...

Bartek

Edited October 2, 2006 by brtlmj

[churipu 4]

Not sure what the real reason is...maybe the 170$ pocketed from each applicant...

[zyggy 9]

... When they grant it, they're stating... "Ok, well let you leave, and while we will let your physical self enter the US to wait until the benefit is granted or denied, we will not allow your legal self to enter the US until the benefit is granted"...

Zyggy, I don't know if I necessarily agree with your physical vs. legal self distinction.

As I've previously posted, in the context of an AOS petition, "continuous legal presence" in the US since the filing of the adjustment of status petition is one of the legal requirements for qualification. Congress provided a narrow exception to the physical presence requirement by directing that "an alien shall not be considered to have failed to maintain continuous physical presence in the United States for the purposes of sub paragraph (A) by virtue of brief, casual, and innocent absences from the United States." 8 U.S.C. 1255a(a)(3)(B ). The Attorney General, by regulation, interpreted an absence to be "brief, casual, and innocent" only if the alien obtained advance parole before leaving the United States or if the departure was out of the alien's control. 8 C.F.R. 245a.2(B )(6). "Advance parole" consists of the Attorney General's regulatory pre-authorization for an alien to be paroled into the United States upon arrival at the border without the appropriate visa or other documents necessary to enter lawfully. 8 C.F.R. 212.5(f).

The Board of Immigration Appeals has interpreted the statutory exception to the continuous physical presence requirement for "brief, casual, and innocent absences" as only preserving the alien's eligibility for legalization under the Immigration Reform and Control Act, and not as a substantive redefinition of an entry into the United States for other immigration purposes. In re Singh, 21 I. & N. Dec. 427, 434-435 & n.8 (1996) (en banc).

All that this appears to mean is that for the purposes of the "continuous presence requirement" found in AOS statutes, authorized brief, casual, and innocent absences are not deemed legal "departures" and/or "readmissions" to/from the US. For all other purposes, your rights, privileges and obligations under the law remain exactly the same as if you had to qualify for an "entry" under the applicable statutes.

P.S.

Please do not misinterpret this post to mean that AOS applicants who have otherwise committed infractions of US immigration laws can leave and reenter the US with impunity if they just obtain advance parole (they can't). That issue is completely separate and distinct from the distinctions that are being discussed above.

The reason that's the case is because the courts have generally construed the "brief, casual and innocent" absences exception I discussed above as only applicable to the "continuous physical presence" requirement of legalization.

It does not affect the generally applicable definition of what constitutes an "entry" into the United States under the law, since the courts have also inferred that Congress only intended to bestow travel privileges on lawful temporary residents (as opposed to the ones who were here unlawfully prior to their departure). This allows the border patrol to review the "entry" for compliance with all other legal requirements (other than the "continuous physical presence" requirement of AOS eligibility) which causes may cause significant problems for people who violated immigration laws prior to their departure.

That may be what you read, but several instances and stories from Immigration Attorneys

state otherwise. You may want to look for posts from folinskyinla and MDUdall with Advanced Parole and hear some of their stories...

[Saddle Bronc 124]

Does anybody know the reason of AP, why it was implemented? My husband and I just don't see the reason behind it.

Neither do I. My guess is that it made perfect sense long ago, when you would travel to the US by ship, and getting a GC would be much faster. Nowadays it (and a good part of the entire immigration process) is pure BS, but hey <irony> IT'S THE LAW ! </irony>

I'd gladly pay a higher application fee to get my GC within a month or two instead of paying for AP and EAD.

Yep, that's the law. The problem is, it's a bad law. It benefits noone and feeds bureaucracy...

Bartek

Yes, another one of the archaic rules like the countrywise (set by BIRTH country) quota.

[am1996 0]

That may be what you read, but several instances and stories from Immigration Attorneys

state otherwise. You may want to look for posts from folinskyinla and MDUdall with Advanced Parole and hear some of their stories...

I'd love to review their posts but can't seem to access them. My guess is that the posts are old and VJ has archived them. Is there a way to access archived threads/posts?

[am1996 0]

That may be what you read, but several instances and stories from Immigration Attorneys

state otherwise. You may want to look for posts from folinskyinla and MDUdall with Advanced Parole and hear some of their stories...

As I mentioned above, I cannot find any of their posts but everything I have seen so far suggests that the information I posted above is correct. For instance, the public version of the Adjudicators' Field Manual (http://www.uscis.gov/lpbin/lpext.dll/inserts/afm_redacted/afm-95-redacted-494-1/afm-95-redacted-11619?f=templates&fn=document-frame.htm) refers to 8 CFR 245.2(a)(4) regarding effect of departure.

If you review that code section, 8 CFR 245.2(a)(4)(ii)(B) states: "The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act."

In other words, I still do not see how the rights of the AOS applicants who are subject to 8 CFR 245.2(a)(4)(ii)(B) are different from those of the same applicants who have traveled via AP. If you have conflicting information, please post it as I have yet to see any.

[Yodrak 7]

Anna,

A person needs some basis for requesting entry into the USA. For those who have a need to get in, but don't have a visa, advance parole fills that need.

(From the government's point of view, you can't be organizing the shipment of your stuff while waiting for you interview?)

Yodrak

Hi,

Does anybody know the reason of AP, why it was implemented? My husband and I just don't see the reason behind it. What would it hurt if spouses travelled back home for a week or two? A lot of us have some stuff to do, e.g. I'd like to organize the transport of all my stuff to America (flatware, dishes, pictures, ski, etc.).

We are just curious to know.

Thank you!

Anna

Edited October 2, 2006 by Yodrak

[meauxna 15]

That may be what you read, but several instances and stories from Immigration Attorneys

state otherwise. You may want to look for posts from folinskyinla and MDUdall with Advanced Parole and hear some of their stories...

I'd love to review their posts but can't seem to access them. My guess is that the posts are old and VJ has archived them. Is there a way to access archived threads/posts?

Use google and select the cached version.

But, the best discussions (folinskyinla does not post to VJ) will be found on google/groups at alt.visa.us.marriage-based.

[Yodrak 7]

raymaga,

Point of clarification: the USCIS does not make the law, it implements the law.

Yodrak

.... USCIS doesn't seem to think they need a good reason, so we have to follow their rules.

.....

[Anna C. 4]

Thanks for your answers. I came on a visa, but I don't see any point of not being allowed to travel for short amounts of time, e.g. a two week visit at home. I mean we all sit at home waiting for EAD and/or AOS and it is waisted time, I'd love to see my family for a week or so since we haven't seen each other in 8 months.

Thanks, Anna.