Re-entering with a green card-please help if you know!

[SB immi 0]

Hello all, this my first post-been reading a lot and have a question about my wife's case. Please respond if you or someone you know has been in the same situation (not likely though as I'm seeing everyone's case is unique).

My wife and I had our marriage based AOS interview on Monday. Our lawyer told us that the IO would have a decision on the case at the end of the interview, so my wife had a ticket to leave the country that same day, as we were not really worried about not passing the interview. Turned out name checks hadn't all gone through, so they approved the I-130 but said final approval and the green card would come in the mail. She did not get a stamp on her passport, and she did leave that day. On Wednesday, I checked her application status online and it said that the I-485 was approved and the notice was sent on Tuesday (day after the interview/her leaving). The plan was that I would mail her the green card when it camr so she can get back in the country. Now it's looking like that might be a problem. She did not have AP and was out of status when she left. Will she not be able to get in with the green card? I realize that her leaving may have triggered a 10 year bar and may have caused the AOS application to be considered abandoned, but if she has the green card in hand when she comes back won't that be ok and since she was approved the negatives wouldn't count?

If anyone has had a similar experience, please do not hesitate to reply. Any info is tremendously appreciated!! Thank you!

[Ryan H 3,817]

Moved from AOS from Family Based Visas to AOS from Work, Student, and Tourist Visas forum; OP has indicated there was a concurrent filing of an I-130 and an I-485.

[DC85 113]

Since you saw the approval for 485, she will be fine, just wait till you receive the GC and send it through Fedex. but I want to say that your lawyer is an idiot, she would be in so much trouble if the AOS wasn't approved

[Que Saudade 284]

The 10 year ban would be the moment she departed the country prior to green card being issued.

But, it all depends on the CBP officer when she re-enters. Once a green card is issued the overstay is forgiven.

If she has her green card to get back in then maybe OK. What if the green card gets lost in the mail???

Then you are completely screwed.

You have played with some serious legal issues that may or may not haunt you.

Good luck.... I wish you guys the best.

Personally, I can't understand why you would let her leave the country without green card approved and in hand. This is a surprising gamble with your spouse.

[Sirdaniel42 86]

But I want to say that your lawyer is an idiot, she would be in so much trouble if the AOS wasn't approved

The 10 year ban would be the moment she departed the country prior to green card being issued.

But, it all depends on the CBP officer when she re-enters. Once a green card is issued the overstay is forgiven.

If she has her green card to get back in then maybe OK. What if the green card gets lost in the mail???

Then you are completely screwed.

You have played with some serious legal issues that may or may not haunt you.

Good luck.... I wish you guys the best.

Personally, I can't understand why you would let her leave the country without green card approved and in hand. This is a surprising gamble with your spouse.

This is sooo true!!!!

[Que Saudade 284]

Since you saw the approval for 485, she will be fine, just wait till you receive the GC and send it through Fedex. but I want to say that your lawyer is an idiot, she would be in so much trouble if the AOS wasn't approved

Technically, the legal issue could still arise. The law is quite clear about overstay and departing the country prior to the issuance (approval) of green card. She left prior to the actual approval. This means, the moment she left the US, the ban is enforceable. The green card doesn't excuse the ban, a waiver does. The green card forgives the overstay as long as you are present in the US when approved and have not triggered the ban.

Now, the reality of the matter is that the CBP officer may not look at the dates that carefully. They may not do anything even if they look because green card is in hand. But, the legal possibility does exist.

Edited August 30, 2012 by Que Saudade

[kstrozyk 13]

Please keep us posted about what happens. I think there are some people in the same situation.

[ceadsearc 516]

I am not sure if mailing a GC is legal and it wouldn't matter anyway since CBP can see she left prior to approval.

She needs to go to the embassy and see if she can get a temporary travel document, and hope CBP will let her back in. Otherwise she will have to stay abroad and file for a CR-1 (and waiver if her overstay is over 6 months).

I am really sorry your lawyer misled you. Cases are often NOT approved on the spot and he should have advised you not to leave the country without it. That said, for anyone else reading this who may be in doubt, you cannot leave the country with no status or pending status and expect to be let back in. What if an RFE was issued and not an approval at all?

Edited August 31, 2012 by ceadsearc

[Que Saudade 284]

I am not sure if mailing a GC is legal and it wouldn't matter anyway since CBP can see she left prior to approval.

I concur

She needs to go to the embassy and see if she can get a temporary travel document, and hope CBP will let her back in. Otherwise she will have to stay abroad and file for a CR-1 (and waiver if her overstay is over 6 months).

Interesting here is that she will have to see if she is denied entry before applying for waiver??? Or just go ahead and admit it and apply for waiver?? I think there is a real chance she will be readmitted (just my opinion)

Even if she had AP, it is of no use if overstay has occurred for more than 180 days...3 year ban (360 days =10 year ban.)

USCIS can and will approve AP even if overstay has occurred. I have researched this extensively. I have made info passes regarding the fact USCIS approves AP even when you can't use it. I have asked about the recent BIA case that discusses this to no avail.

CBP and USCIS are 2 different entities. This point has been made excruciatingly clear to me. Even if USCIS gives a travel document and says it is ok, it is up to the CBP officer to let you in according to his field manual.= and interpretation.

I have read INA 212 to the point that I can recite certain sections.. especially this one (B) 13/ ALIENS UNLAWFULLY PRESENT

If you really want to dig into the law and USCIS wants to be bad about this, they can claim she has abandoned her petition as she left without Advanced Parole.... So, think about that legal issue a minute...

This indeed is Pandora's Box.....

[DandT14 272]

If he mails her the greencard, is there any harm if she tries to use it to re-enter and gets denied?

I'm thinking that's what I'd do,just try to use it and then if denied try one of the other options mentioned.

[ceadsearc 516]

I agree she might be admitted ... With a green card or travel document. Better to check on if a green card can even be mailed, because if not then she would need to go to the embassy for travel docs. Without one or the other they probably will not let her board.

That said, she also might not and I know the first time my husband traveled with his GC they spent a long time looking at it, checking the system, etc. when we returned so an error likely would have been caught. I have heard of the new rules with AP and people being paroled even with overstay ... But with no AP they could consider it abandoned, as you said. If she can't a) get a green card or travel documents AND b) be allowed entry by CBP then I would think her only choice would be to go the CR-1 route.

If he mails her the greencard, is there any harm if she tries to use it to re-enter and gets denied?

I'm thinking that's what I'd do,just try to use it and then if denied try one of the other options mentioned.

Probably not, other than being stranded at the airport and having to pay for a flight back home.

[Que Saudade 284]

If he mails her the greencard, is there any harm if she tries to use it to re-enter and gets denied?

I'm thinking that's what I'd do,just try to use it and then if denied try one of the other options mentioned.

I agree she might be admitted ............

Probably not, other than being stranded at the airport and having to pay for a flight back home.

In my opinion she should try.

On a side note.. look at this link.. the OP posted on a legal website and the lawyers are fighting for a retainer

They gave the same insight as we did.

[Xanax 349]

She may have been approved on the same day but the approval came through the next day online- like she was approved but it showed up later?

I think the only thing you can do is try, you don't really have any other options, right?

--

Oh also as someone said you may have to pay for a flight for you wife back to her home country... Generally the airline that takes you, if you are denied is responsible for taking you back at their expense.

Edited August 31, 2012 by Xanax

[Deputy Purple 1,294]

My big concern here would be if CBP/USCIS got wind of the fact that she left the US before approval which is considered as abandoning her application.

With the immigration stuff I'm always hesitant to take chances and assume the worst possible negative impact. In this case I would be worried that the greencard would be deemed invalid or even worse obtained fraudlently. I'm not saying you knowingly did anything wrong, just that 'the system' can be inflexible at times.

I would have delayed her travel until we had an approval, then infopassed for an I-551 stamp...

Were I in your shoes, I'd travel to my wife and hand deliver the Greencard and return to the US with her so she isn't alone at POE. If an issue was made of the dates I'd ask CBP to parole or admit her and give her a date before an Immigration Judge to determine the validity of her Greencard as once issued only an IJ can take it away from her.

Edited September 1, 2012 by Bob 4 Anna

[LIFE'SJOURNEY 970]

New GC has information date and bar coded. No sure what information is held in bar code.