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

[Harpa Timsah 13,258]

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.

In fact earlier this week someone reported that their wife had exited the US with AP pending, and the AP was denied. I guessed that prior to approval, on the last checks, the adjudicator checked CBP records/ flight manifest database and saw the exit, and denied the AP. If things work as they should, the OP's AP will be denied as well.

Edited June 21, 2012 by Harpa Timsah

[grrrrreat 109]

In fact earlier this week someone reported that their wife had exited the US with AP pending, and the AP was denied. I guessed that prior to approval, on the last checks, the adjudicator checked CBP records/ flight manifest database and saw the exit, and denied the AP. If things work as they should, the OP's AP will be denied as well.

That's really too bad for that person. This really is an unforced error on the part of OP though, as it's crystal clear that you can't leave the U.S. without AP.

[IPv6Freely 64]

Ouch. Better to never assume and not leave anything to chance. Travel plans should have been abandoned immediately upon realizing you don't have a valid AP. Obviously the OP realizes this now.

I hope it works out for you, but I can't imagine it will be easy at this point. Like Harpa mentioned, you should be denied if processes are followed correctly. Perhaps there is another option, somehow? I don't think VJ can help much... a lawyer is really your only option now.

[steel_4d 3]

As grrreat has restated, I expedited the AP (successfully, thankfully, though it still delays my return), in order to attempt reentering with it, if a customs officer is less astute or decides to have mercy on me. Once I'm home, I can start working on resolving the case. I had zero way to return without this. I would have had to wait at least a month for an H with premium processing or such. Now I'm hoping to do that while in the country at least, if my AOS is not voided instantly. Once I have an H, I buy myself time to do another green card app if my AOS is voided in adjudication due to this exit. My company has changed during the process (mostly in name), but that may disqualify me from just redoing the AOS in this case, and force me to start another gc process from scratch. But I can not be outside the country for months or years. My work and my life are not set up that way. I'm a Canadian citizen, but my entire life is in the US.

Note also that I've been working in the US for 7 years. I got my first H1B 6 years ago. But I only held H visas for 2-3 years. I've been using APs since then. Does this mean I'm still eligible for H or not?

Note also, that the airline did not take my I-94 when I left the country. Does that mean USCIS doesn't actually have a record of my departure? Do they look through my passport again in AOS adjudication?

I guess I apologize for asking a nonstandard question. But restating the obvious is not what I was asking for, rather alternatives, or similar experiences. If you're only gonna restate what I stated in my original post, why waste your breath?

Thanks

[Little_My 464]

I am not sure if you are understanding the situation correctly.. Because you left the country without a valid AP or a valid H1-B, the AOS application is immediately considered abandoned and therefor there is no basis for the AP to be issued. Even if USCIS does not receive the information of your departure in time, and the AP is issued, and you are able to re-enter with it, then what? You won't have an AOS application existing anymore, and since you do not have an H1-B either, you are basically out of status here. I am not sure what it means in regards to your status that you would have been issued an AP mistakenly, and also paroled in with it mistakenly, but once you are in you're basically under no status.

My understanding is that overstay/unauthorized presence in the US is only overlooked for foreigners who AOS through marriage to a US Citizen, so if your application is based on employment, and you have overstayed a previous visa/entered here with basically no valid status, it will be an issue during your new application. It may also negatively impact a new H1-B application.

Your passport was most likely scanned at the airport, and there is a flight manifest with your name on it. The I-94 is not the only way to keep arrival/departure records.

[grrrrreat 109]

I am not sure if you are understanding the situation correctly.. Because you left the country without a valid AP or a valid H1-B, the AOS application is immediately considered abandoned and therefor there is no basis for the AP to be issued. Even if USCIS does not receive the information of your departure in time, and the AP is issued, and you are able to re-enter with it, then what? You won't have an AOS application existing anymore, and since you do not have an H1-B either, you are basically out of status here. I am not sure what it means in regards to your status that you would have been issued an AP mistakenly, and also paroled in with it mistakenly, but once you are in you're basically under no status.

My understanding is that overstay/unauthorized presence in the US is only overlooked for foreigners who AOS through marriage to a US Citizen, so if your application is based on employment, and you have overstayed a previous visa/entered here with basically no valid status, it will be an issue during your new application. It may also negatively impact a new H1-B application.

Your passport was most likely scanned at the airport, and there is a flight manifest with your name on it. The I-94 is not the only way to keep arrival/departure records.

I think he understands he just hasn't given up hope.

[steel_4d 3]

I think he understands he just hasn't given up hope.

Correct

I'm hoping that I'm not out of status until I'm declared out of status... Ie if I'm admitted with the correct status, I may be ok till adjudication at least?

That's interesting about the flight manifests. Does anyone know for sure if those are tracked or what is tracked? Either way, I'm not banking on my departure not being on record somewhere, it's just an interesting point on the arbitrariness of the procedures, since my AP was in fact approved after the departure.

Does anyone have an answer on the H1B eligibility? Do they count the time in H1B status or the time since the first H1B approval?

Thanks

[Harpa Timsah 13,258]

Flight manifests are tracked, for sure. They will know when you left. Even if you got let back in, your AOS would be denied. Being in the country does not mean you will be okay... they will check the dates of your trip and see you left prior to AP approval. It says quite plainly in the I-485 instructions, the following:

You do not have a valid H visa so exception 1 does not apply to you.

[Little_My 464]

Correct

I'm hoping that I'm not out of status until I'm declared out of status... Ie if I'm admitted with the correct status, I may be ok till adjudication at least?

That's interesting about the flight manifests. Does anyone know for sure if those are tracked or what is tracked? Either way, I'm not banking on my departure not being on record somewhere, it's just an interesting point on the arbitrariness of the procedures, since my AP was in fact approved after the departure.

Does anyone have an answer on the H1B eligibility? Do they count the time in H1B status or the time since the first H1B approval?

Thanks

The part where, from my point of view, the problem lies is that you cannot be "admitted with correct status" anymore, because.. You essentially have no status. Your H1 is not valid anymore, and your AOS was abandoned, so the AP was issued erroneously and you cannot be paroled back into the country, because the whole basis of being paroled back in - the pending AOS - no longer exists. Now, I am not saying that this might not be doable in practice, i.e. someone sending you the AP and you coming back and being let back in with it, but even if you managed to pull that part off, there's no way you can continue with the AOS, and you would essentially be in the US without status. The AP will have an "issued on" date on it. You have a departure flight record dated prior to the "issued on" date on your AP. I think there's actually a pretty good chance this might come up at the border when you are attempting to re-enter, but if not.. then what would be your next step? I don't mean to sound pessimistic, I think having hope is always a good thing. However, I am not sure how you plan to move forward if you were mistakenly paroled back in under the AP that should have never been issued - what are you going to do when you're back in the US?

[grrrrreat 109]

The part where, from my point of view, the problem lies is that you cannot be "admitted with correct status" anymore, because.. You essentially have no status. Your H1 is not valid anymore, and your AOS was abandoned, so the AP was issued erroneously and you cannot be paroled back into the country, because the whole basis of being paroled back in - the pending AOS - no longer exists. Now, I am not saying that this might not be doable in practice, i.e. someone sending you the AP and you coming back and being let back in with it, but even if you managed to pull that part off, there's no way you can continue with the AOS, and you would essentially be in the US without status. The AP will have an "issued on" date on it. You have a departure flight record dated prior to the "issued on" date on your AP. I think there's actually a pretty good chance this might come up at the border when you are attempting to re-enter, but if not.. then what would be your next step? I don't mean to sound pessimistic, I think having hope is always a good thing. However, I am not sure how you plan to move forward if you were mistakenly paroled back in under the AP that should have never been issued - what are you going to do when you're back in the US?

I think you're doing a good job of spelling out the problems with OP's situation, but he needs to get off this board at this point because the situation is above our pay grade. I wonder if someone who is paroled mistakenly into the U.S. can file for adjustment of status (i.e., can he just re-file the I-485, assuming whatever petition that would provide him an immigrant visa is still valid)? Other types of parolees can file I-485, such as someone who initially entered without inspection, but then received temporary protected status and advance parole, and left and reentered the U.S. pursuant to that advance parole.

Even if the fact that his AP is erroneous prevents refiling adjustment of status, I wonder if USCIS has discretion to issue him a brand new parole so that he can re-file the I-485?

The bottom line is this situation is way too complicated for a DIY immigration board and OP needs to find a good lawyer.

Edited June 25, 2012 by grrrrreat

[steel_4d 3]

what are you going to do when you're back in the US?

Like I said in my previous post - file an H1B extension. Which is also contingent on AOS.

But I also need to look into grrreat's suggestion of possibly filing a new I-485. But can I do this if my employer has changed since my initial application?

I do have a supposedly good lawyer, but she doesn't have all the answers off the top of her head. I'm sure she hasn't dealt with many cases like this, either.

Anyways, I finally have the AP on the way to Europe by Fedex.

[Hypnos 6,578]

I'll be very interested to see whether or not the AP gets you back into the country or not.

I would hope for the best but expect the worst.

[steel_4d 3]

I'll be very interested to see whether or not the AP gets you back into the country or not.

I would hope for the best but expect the worst.

It did, no problems, no questions asked. Paroled on AOS. I kept my old I-94 so the question of departure date doesn't come up. I read on an official website that if traveling by air, and my I-94 was not taken, they already have my flight records, and I don't need to do anything further.

I'll figure out my next steps from here, but will update the thread if there are developments.

Thanks, guys.

[IPv6Freely 64]

Well that's a good first step at least. You may have to re-file your AOS from scratch though, since you've abandoned it.

[steel_4d 3]

Well that's a good first step at least. You may have to re-file your AOS from scratch though, since you've abandoned it.

The problem is my company has changed (I essentially work with the same people, but incorporated under a different name). I believe that means I can't just re-file the AOS, but have to start with a brand new petition from the "new" employer?