Left the US without Advance Parole in AOS. Now what?

[steel_4d 3]

Hi. I made the mistake of leaving without an approved AP, and I'd like to hear any experiences on how to straighten out the situation.

I have an Adjustment of Status pending. Should come current around January. I was on H1b before. I have had many AP's in the past, but my last one expired in January. USCIS received my new I131 application on March 13th. I only realized the night before my flight that my last AP was expired. I thought I'd get my AP eventually, get it sent to Europe, then come back with it, even if slightly late. I couldn't even imagine that the act of leaving the country without a valid AP automatically voids the AOS. Now I know. Though I still have no idea what the rationale may be. Does anyone know?

My return ticket is June 25th. I should be able to get the AP paper in the mail before then, if they really process applications in 90 days.

The airline person did not take my I94 out of my passport. This has happened to me many times before, and I only received a scolding from the immigration officer upon return. Not sure what this means in terms of my departure record.

What are my options right now?

Is there ANY way I can keep my AOS in effect at this point and not give up my priority date? I've heard it is up to the officer's discretion to enforce the technicality of the departure date. I had a good experience once when I lost my passport and AP, the officer let me in with a temporary passport and a photocopy of the AP. Alternatively, would I be going before an immigration judge? Can the invalidation of AOS be appealed? I'm obviously working in the US, and can't even consider lengthy paperwork while waiting outside the country.

I'd appreciate any advice, especially based on experience. Thanks!

[grrrrreat 109]

Hi. I made the mistake of leaving without an approved AP, and I'd like to hear any experiences on how to straighten out the situation.

I have an Adjustment of Status pending. Should come current around January. I was on H1b before. I have had many AP's in the past, but my last one expired in January. USCIS received my new I131 application on March 13th. I only realized the night before my flight that my last AP was expired. I thought I'd get my AP eventually, get it sent to Europe, then come back with it, even if slightly late. I couldn't even imagine that the act of leaving the country without a valid AP automatically voids the AOS. Now I know. Though I still have no idea what the rationale may be. Does anyone know?

My return ticket is June 25th. I should be able to get the AP paper in the mail before then, if they really process applications in 90 days.

The airline person did not take my I94 out of my passport. This has happened to me many times before, and I only received a scolding from the immigration officer upon return. Not sure what this means in terms of my departure record.

What are my options right now?

Is there ANY way I can keep my AOS in effect at this point and not give up my priority date? I've heard it is up to the officer's discretion to enforce the technicality of the departure date. I had a good experience once when I lost my passport and AP, the officer let me in with a temporary passport and a photocopy of the AP. Alternatively, would I be going before an immigration judge? Can the invalidation of AOS be appealed? I'm obviously working in the US, and can't even consider lengthy paperwork while waiting outside the country.

I'd appreciate any advice, especially based on experience. Thanks!

Do you still have a valid H1-B? Are you still in status on it? Did you actually use the prior advance paroles? People who have valid, unexpired H1-Bs and are still in status on their H1-B can travel in and out of the U.S. with the H1-B visa and don't need advance parole. On the other hand, if you have no valid H1-B, or it has expired, or you were out of status on it, then leaving the U.S. without advance parole results in abandonment of the adjustment application.

The rationale is that the alien has to be in the U.S. when the adjustment process is complete. If the alien leaves the U.S. without a valid permission to return, then it becomes impossible to complete the adjustment process. Generally adjustment applicants can not use nonimmigrant visas or the VWP to enter the U.S. because they have the intent to immigrate, which disqualifies them. They can only do it with advance parole.

The reason that H1-B visas are different is that they are "dual-intent visas", which means you can use them even if you have the intent to immigrate (i.e., have applied for adjustment).

There will be a further complication if your H1-B is still technically valid, but you have used a previous advance parole. Using advance parole technically cancels H1-B status (i.e., instead of an H1-B entrant, you were a "parolee"). CBP may not notice this, but it's sufficient reason to deny you entry using the H1-B. A similar result occurs if you stopped working at the H1-B job or used an EAD to get a different job, since H1-B entrants have to keep working for the same employer to maintain their H1-B visa.

You could try entering the U.S. with the advance parole that USCIS issues after you leave, but there is of course a risk that you will be denied entry and have your adjustment application cancelled.

Edited June 13, 2012 by grrrrreat

[Little_My 464]

Agree with the previous post. Also one thing to note is that it won't matter if the AP is issued before your return date, and someone would send it to you to wherever you are now so that you could use it to re-enter - what matters is that your departure date from the US will have been before the issue date of the new AP, and therefore you left the US without a valid travel document at the time of departure. You need it to get back in, but you also need to have a valid travel document to leave the US to not abandon your AOS. Even if CBP would let you back in with the new AP , assuming someone sent it to you abroad, it would most likely become obvious at some point during the AOS process that you left the country before the travel document had been issued, and after the previous one had already been expired, which would most likely result in a denial in your AOS case.

I do not know whether or not you can appeal this kind of a situation - someone here will probably have experience or information on that.

[grrrrreat 109]

Agree with the previous post. Also one thing to note is that it won't matter if the AP is issued before your return date, and someone would send it to you to wherever you are now so that you could use it to re-enter - what matters is that your departure date from the US will have been before the issue date of the new AP, and therefore you left the US without a valid travel document at the time of departure. You need it to get back in, but you also need to have a valid travel document to leave the US to not abandon your AOS. Even if CBP would let you back in with the new AP , assuming someone sent it to you abroad, it would most likely become obvious at some point during the AOS process that you left the country before the travel document had been issued, and after the previous one had already been expired, which would most likely result in a denial in your AOS case.

I do not know whether or not you can appeal this kind of a situation - someone here will probably have experience or information on that.

I agree with you also. The problem with leaving before AP is approved is that as soon as you leave, the adjustment application is considered abandoned, which makes the alien ineligible for AP. Now, USCIS doesn't necessarily know that the alien has left, which is why it issues AP in error, and CBP may not necessarily know that the advance parole they're presented with on the return trip is invalid, so I suspect more than a few folks have probably successfully gotten back into the U.S., but it's not the way things are supposed to happen.

[ChrisPG 30]

I agree with you also. The problem with leaving before AP is approved is that as soon as you leave, the adjustment application is considered abandoned, which makes the alien ineligible for AP. Now, USCIS doesn't necessarily know that the alien has left, which is why it issues AP in error, and CBP may not necessarily know that the advance parole they're presented with on the return trip is invalid, so I suspect more than a few folks have probably successfully gotten back into the U.S., but it's not the way things are supposed to happen.

Having just had my interview yesterday the IO had a record of all of my US entry and exits, so even if the CBP lets the OP in-- it could still be an issue at the interview if the IO puts two and two together.

[steel_4d 3]

Thanks for the answers. This was my understanding as well. I was hoping someone had experience with this sort of situation, and whether there is an appeal process. I've read about similar situations where someone was paroled in regardless of the invalid AP, which then gave the person the chance to appear before an immigration judge. No word on the results of such an encounter

To clarify, I don't have a valid H1B any more, I have been using paroles for many years.

Thanks

[Little_My 464]

This should be an interesting read for you:

http://www.visajourney.com/forums/topic/372993-new-board-of-immigration-appeals-case-says-leaving-the-us-with-advance-parole-does-not-trigger-10-year-ban/

[grrrrreat 109]

This should be an interesting read for you:

http://www.visajourney.com/forums/topic/372993-new-board-of-immigration-appeals-case-says-leaving-the-us-with-advance-parole-does-not-trigger-10-year-ban/

Hey! Thanks for posting my post with the link to that case. I was starting to think that nobody noticed it.

I honestly am not sure that it will have much effect on OP's case. The case says that leaving the U.S. with advance parole is not considered a "departure" that triggers the 10-year ban. It doesn't say anything about someone, like the OP, who leaves the U.S. WITHOUT advance parole. By negative implication, someone who leaves without advance parole should be considered to have "departed" for the purpose of the overstay ban.

Another thing that that case says is that an adjustment applicant who leaves and doesn't have a valid return visa is inadmissible to the U.S. under section 212(a)(7)(A)(i)(I). Now, inadmissibility under that section can be waived by the Attorney-General for adjustment applicants (usually by issuance of advance parole).

Bottom line is that USCIS policy is that an adjustment applicant who leaves the U.S. without advance parole generally abandons their application, unless the alien has a valid dual-intent return visa like H-1 or K-1. I don't know of any general exceptions to that, and this is not a do-it-yourself immigration case anymore unfortunately.

[steel_4d 3]

Now, inadmissibility under that section can be waived by the Attorney-General for adjustment applicants (usually by issuance of advance parole).

But advance parole can only be issued if I'm in the country, correct? You don't mean there's another way to obtain a waiver?

Someone said something about calling your local congress member, though I don't know what to understand by that either...

[grrrrreat 109]

But advance parole can only be issued if I'm in the country, correct? You don't mean there's another way to obtain a waiver?

Someone said something about calling your local congress member, though I don't know what to understand by that either...

Yes, AP is only issued to adjustment applicants who are in the country. You took my quote out of context, I was talking about AP generally and not your case.

I doubt your Congressmember could help you. Congressional representatives are helpful when there are extraordinary circumstances and they can convince USCIS to provide an immigration benefit for you. They can't change or bend the law if it doesn't provide you with a benefit. In your case, under the regulations in place, your adjustment application was abandoned when you left the U.S., making you ineligible for advance parole. Even if AP was issued to you (because USCIS didn't know you had left), you could be denied entry at the border or your adjustment application could later be denied and you could be placed in removal proceedings.

At this point I think you should contact a qualified immigration attorney because your case is not DIY anymore.

[steel_4d 3]

Yes, I am aware. I am working with an attorney, whom I've had from the beginning (only reason this happened is that my company marginalized her at this stage in the process and tried to keep the case going by themselves). I'm just looking for outside ideas, because she doesn't see many good options either.

[Harpa Timsah 13,258]

Why do you have another thread that states you are waiting for AP, when this one says you left the country already. What is the point is asking for an AP expedite if you have already left the US? So which is it: Are you in the US or not?

[grrrrreat 109]

Why do you have another thread that states you are waiting for AP, when this one says you left the country already. What is the point is asking for an AP expedite if you have already left the US? So which is it: Are you in the US or not?

He already explained this--just before leaving the U.S., he realized his prior AP was expired and tried to get a new one. He left the U.S. without the approved AP in hand and was expecting someone in the U.S. to send it to him abroad when it was issued, so he could use it to return to the U.S. But as we have already told him, if you leave the U.S. before AP is approved, the adjustment application is deemed abandoned (making you no longer eligible for the advance parole you applied for).

Edited June 21, 2012 by grrrrreat

[Harpa Timsah 13,258]

He already explained this--just before leaving the U.S., he realized his prior AP was expired and tried to get a new one. He left the U.S. without the approved AP in hand and was expecting someone in the U.S. to send it to him abroad when it was issued, so he could use it to return to the U.S. But as we have already told him, if you leave the U.S. before AP is approved, the adjustment application is deemed abandoned (making you no longer eligible for the advance parole you applied for).

Right, and he started that other thread after you told him this... pretending he was still in the US, no?

[grrrrreat 109]

Right, and he started that other thread after you told him this... pretending he was still in the US, no?

Oh sorry I didn't notice this. Perhaps he thinks he can use the AP issued after his departure to get back in and finish adjusting. Somebody else mentioned that the IO had a list of departures/entries at the adjustment interview, so a sharp IO could potentially spot this issue and deny adjustment.

In any case, nothing that we can do for him at this point.