Can we apply for temporary overstay waiver

[Que Saudade 284]

My wife entered under K1 Visa. For financial reasons we did not file AOS until 11 months after arrival. So, she has overstay of 180+ days. We know that once the green card is issued, the overstay will be forgiven.

We have since received EAD and of course AP (even though she had accrued the overstay). We also know that even the AP has been approved, she will be denied re-entry because of the overstay.

My question is, can we file form I-192 for temporary waiver? Her grandfather is very ill and she would like to visit to see him. It appears the wait for the AOS (K1) is going to be quite lengthy.

Thanks in advance for any knowledgeable responses.

[pushbrk 12,569]

My wife entered under K1 Visa. For financial reasons we did not file AOS until 11 months after arrival. So, she has overstay of 180+ days. We know that once the green card is issued, the overstay will be forgiven.

We have since received EAD and of course AP (even though she had accrued the overstay). We also know that even the AP has been approved, she will be denied re-entry because of the overstay.

My question is, can we file form I-192 for temporary waiver? Her grandfather is very ill and she would like to visit to see him. It appears the wait for the AOS (K1) is going to be quite lengthy.

Thanks in advance for any knowledgeable responses.

There is no specific time frame before which the AOS must be filed after a K1 visa holder marries the petitioner. Using Advance Parole is always risky though. I don't know anything about the I-192, so will not speculate on its use.

[Que Saudade 284]

I am pondering the idea of scheduling an infopass to ask this question and see what they say. Would this be a valid reason to do so?

[Harpa Timsah 13,258]

I-192 is for non-immigrants. I don't think your wife qualifies as a non-immigrant anymore. It also costs $585. and presumably takes months to process. I also think that if this were a viable option, that it would have been mentioned on this board at some point, and it hasn't.

There was a recent decision that AP does not count as a departure, and therefore no ban will be triggered by using it. This is a very recent decision, so I personally would not feel that comfortable going, but you could look into how likely the decision is to stay in effect, (it has not yet made it into the Field Manuals) or ask about that at infopass.

[Que Saudade 284]

Thanks Harpa. I will look into the infopass to ask there. If she can't leave until GC, then that is what we will have to do. I feel very bad about her not being able to see her grandfather. The AOS will probably not be processed until after the first of the year.

[Harpa Timsah 13,258]

Here is a link to the information about the new decision about AP. I am not sure how much "teeth" a policy changing BIA decision has in the long term, so I would tread cautiously. 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/

[Que Saudade 284]

For others who may be interested in this, here is a link about the recent decision (not a lawyer's blog, but from justice.gov) Matter of Arrabally and Yerrabelly, 25 I & N Dec. 771 (BIA 2012)

I am going to schedule an info pass and bring this up to see what the current position of USCIS regarding this matter.

Here is a link to the information about the new decision about AP. I am not sure how much "teeth" a policy changing BIA decision has in the long term, so I would tread cautiously. http://www.visajourn...er-10-year-ban/

Thank you Harpa Timsah. I am definitely not going to test the waters without something from USCIS.

Cautiously treading....

[JimVaPhuong 4,863]

My personal opinion is that the BIA's decision in Matter of Arrabally was beyond ludicrous. Advance parole is permission to leave the United States temporarily and be paroled back in without abandoning an application for adjustment of status. Permission to be paroled into the United States would be unnecessary if the alien never actually "departed".

I also think it's hilarious that the BIA claims that the term "depart" is not defined in the law, when it's clearly defined in the United States Code, Title 8, section 215.1:

(h) The term "depart from the United States" means

depart by land, water, or air: (1) From the United States for any foreign place

, or (2) from one geographical part of the United States for a separate geographical part of the United States: Provided, That a trip or journey upon a public ferry, passenger vessel sailing coastwise on a fixed schedule, excursion vessel, or aircraft, having both termini in the continental United States or in any one of the other geographical parts of the United States and not touching any territory or waters under the jurisdiction or control of a foreign power, shall not be deemed a departure from the United States.

Instead of referring to Title 8 USC, the BIA instead refers to Merriam Websters Dictionary.

The term "United States", as far as it applies here, is also defined in Title 8. Going strictly by this definition, if you leave the jurisdiction of the United States and set foot in any foreign place then you've departed the United States. The BIA is clearly wrong here.

DHS has not yet changed their policies based on this BIA decision. I don't honestly expect them to. This case was just recently remanded back to the immigration court. It will be interesting to see what happens there.

[Que Saudade 284]

Yes, I agree with you on the "depart" rule. I think the case could have been stronger had it focused on the issuance of AP knowing that it can't be used under the laws in place right now. It is a "lethal trap" with K1 applicants who do not file AOS swiftly(incurring an overstay) and are not aware that they can not use it. When AP is approved, it is easy to understand that most would presume that DHS has giving legitimacy to the alien's departure and return with no harsh consequences. Of course I am talking legitimate purposes here, not a tourist trip or vacation tool.

The tough part is now she can't travel to see her grandfather without incurring the 3 year ban. With transfer to CSC, our case is not going to be adjudicated before the first of the year.

If any policy is going to be changed, I guess I would vote for transparency. If I can't use AP, then don't approve it.

Thanks Jim for your post. I feel like I am trapped here. A sobbing wife and no clear answer to give her.

Edited August 6, 2012 by Que Saudade

[nnbattle 0]

Hi I'm just asking don't know if I guys could help? My friend went to the u.s for a visit in 2010 but he stay in the u.s for 2 years and then he came back home what he didn't know is once someone overstay there B2 visa they will get the 10 year bar .now he wants to go visit his uncle who is very sick an is visa will be cancell I think? But he read about the i-192 waive could sombody tell us how an when should we file for that waiver? Do my friend have to apply for new visa fist then when the officer see that he overstay his visa and don't give him a new visa .what should he do? Or I wonder if he has to apply for visa an i-192 at the same time?