AP with overstay

[Que Saudade 284]

So we have scheduled an info pass to inquire about using our "approved" AP even though she had acquired overstay (over 180 less than 365) prior to our filing of AOS. As most senior members have warned about not being able to re-enter once she departs the US, we have refrained from going to see her sick and frail grandfather.

Then the whole case regarding Matter of Arrabally and Yerrabelly, 25 I & N Dec. 771 (BIA 2012) came up and discussion has revolved around that.

We are going to have a face to face meeting with USCIS and ask them about this situation and see what they say. Our appointment is scheduled for August 20th. I hope to be able to report what they have to say about this matter.

I will give an update once we have some news.

For argument purposes, what I don't understand is why would USCIS approve such a petition know good and damn well that this is a legal trap for people who occurred overstay prior to filing AOS. To me this is entrapment. Yes you are approved. Then, when you use it, No you can't enter and you have incurred a ban.

I take full responsibility for not filing the AOS sooner, but it was a financial decision at the time as there is no rule for timeframe to file AOS.

I also feel extremely guilty for her lack of ability to go see her failing grandfather. My grandfather was my best friend growing up and it was a huge blow when I lost him. At least I got to see him prior to his death. I know how emotionally distraught she is.

At the pace CSC is moving with K1 AOS, we may get adjudicated sometime after the first of the year if we are lucky. I remember how slow the service centers get around the holiday times.

[amykathleen2005 441]

So we have scheduled an info pass to inquire about using our "approved" AP even though she had acquired overstay (over 180 less than 365) prior to our filing of AOS. As most senior members have warned about not being able to re-enter once she departs the US, we have refrained from going to see her sick and frail grandfather.

Then the whole case regarding Matter of Arrabally and Yerrabelly, 25 I & N Dec. 771 (BIA 2012) came up and discussion has revolved around that.

We are going to have a face to face meeting with USCIS and ask them about this situation and see what they say. Our appointment is scheduled for August 20th. I hope to be able to report what they have to say about this matter.

I will give an update once we have some news.

For argument purposes, what I don't understand is why would USCIS approve such a petition know good and damn well that this is a legal trap for people who occurred overstay prior to filing AOS. To me this is entrapment. Yes you are approved. Then, when you use it, No you can't enter and you have incurred a ban.

I take full responsibility for not filing the AOS sooner, but it was a financial decision at the time as there is no rule for timeframe to file AOS.

I also feel extremely guilty for her lack of ability to go see her failing grandfather. My grandfather was my best friend growing up and it was a huge blow when I lost him. At least I got to see him prior to his death. I know how emotionally distraught she is.

At the pace CSC is moving with K1 AOS, we may get adjudicated sometime after the first of the year if we are lucky. I remember how slow the service centers get around the holiday times.

So you upset the service center is slow but it was you that took almost a year to send in your AOS packet?

[Que Saudade 284]

So you upset the service center is slow but it was you that took almost a year to send in your AOS packet?

No, I am not upset about the time. I am not elated over it either. I am upset with the fact that we have been approved AP and can not use it. Why approve it?

As I said, I take responsibility for the timeframe we filed AOS. I also admit that I did not realize at the time that we would not be able to use the AP. That is my fault as I did not research all of the ramifications of delaying filing the AOS. I had talked to other senior members at the time who had done the same thing. But no one mentioned the fact that she couldn't use it. Once again, my fault.

Are you aware of the unusual ruling by BIA regarding this matter? I am just going to get clarification as to where they stand. I want to hear it from USCIS.

If you are interested, you can see my other thread Thread here and you will see that I have not expressed anger towards the timeframe.

Hopefully our story will benefit others from making the same mistake.

Edited August 11, 2012 by Que Saudade

[amykathleen2005 441]

Just a warning, although a USCIS officer might tell you one thing, it is up to the people at customs to let you back in. What they decide is it.

[Que Saudade 284]

Just a warning, although a USCIS officer might tell you one thing, it is up to the people at customs to let you back in. What they decide is it.

Yes, just another incongruent part of the process.

[Little_My 464]

AP is routinely approved for anyone who files the application correctly with AOS. I am not an expert on this, but my guess is that the part of the process where AP is approved is pretty much a very automated process, and whether or not AP is approved depends solely on the applicant filing the correct forms with correct attachments and photos in conjunction with AOS paperwork. No one really examines whether or not the applicant is eligible to be paroled back into the US - that process is the responsibility of CBP, not USCIS. For USCIS, the purpose of the AP is to protect the pending AOS case and keep it from being considered abandoned. CBP determines whether or not an alien is admissible to the US (or eligible to be paroled back in), not USCIS, and therefor USCIS doesn't really look into this issue when approving AP applications. It is the responsibility of the AP applicant to know whether or not they are eligible to use it to travel - not USCIS'.

[Que Saudade 284]

From thread

USCIS has long had a policy to issue advance parole to people with sufficient overstay to trigger a ban if they left. Many well-meaning but uninformed intending immigrants left the US after receiving advance parole, only to be told they triggered a ban when they left. Whether they trigger a ban now depends on how informed the CBP officer is when they try to reenter, since many field offices don't move until a formal policy directive is issued by the director. Issuing advance parole to someone who might trigger a ban if they leave is irresponsible on the part of USCIS, and borders on government entrapment. Bold text warnings in the I-131 instructions are not sufficient. If someone might trigger a ban when they leave then USCIS shouldn't issue them advance parole.

JimVaPhuong's last sentence sums up what I was trying to get at.

[Que Saudade 284]

It is the responsibility of the AP applicant to know whether or not they are eligible to use it to travel - not USCIS'.

It is the responsibility of the government to be succint with issuing advanced parole. They scour every other part of the process.!

[Harpa Timsah 13,258]

It would cost more money to add a verification process into the issuance of Advance Parole. it is cheaper and swifter to award it to everyone, and put a big warning "DO NOT USE IF YOU HAVE OVERSTAYED!" on the bottom, which is what they do at present. I'd rather have free AP I cannot use than pay for AP and have it be verified and denied if I am not eligible.

[Que Saudade 284]

It would cost more money to add a verification process into the issuance of Advance Parole. it is cheaper and swifter to award it to everyone, and put a big warning "DO NOT USE IF YOU HAVE OVERSTAYED!" on the bottom, which is what they do at present. I'd rather have free AP I cannot use than pay for AP and have it be verified and denied if I am not eligible.

I partly agree with your statement. All they would have to do is to add to the form a field for I-94 expiration date and require a copy of the I-94.

I also appreciate the link you sent me to the thread that JimVaPhuong and Darnell replied heavily to.

We did our info pass today and as predicted, they had no clue how to answer our question. Nothing ventured nothing gained I say.

I also asked them about current I-485 processing times at CSC. They gave me the date from last year. I told them that was for employment based AOS and not family based. He looked at his computer again and basically said I can't help you

We are not going to travel until we get a green card. Doesn't stop me from agreeing with the way the current policy is worded and enforced.

The original AP was supposed to be for people adjusting from other statuses, not K1. I guess K1 is the ####### child that just got shoved into the mix. Another reason I now suggest CR1 versus K1 where applicable.

What is amazing to me now is that the deferred action applicants can file for AP once they have received their action from USCIS/ICE

How in the world will they qualify for AP????? Shouldn't the officials just not have even offered it?? They have some serious overstay issues.

In the I-131 instructions, the K1 visa is not even mentioned.

Did I understand that you are saying that they stamp the bottom with DO NOT USE IF YOU HAVE OVERSTAYED ?? Or were you suggesting that is what they should do?

Anyhow, thanks for the input Harpa

[Harpa Timsah 13,258]

As it is now, the AP letter has a big warning on it. I am not sure how it works with the combo card, but I am confident that the warning, in big bold letters, is on some piece of correspondence that comes with it.

AP was also for K-1. I am not sure why you think it's not for them. K-1 is a one-time use visa. AP also works well, if you file in a timely manner. Just as with other visas, if you overstay, you also cannot use AP. Same for K-1 and all others.

I know you're frustrated, and I hear you. Your GC will be approved sooner rather than later and this will all be a distant memory.