Okay to travel w/ AP while AOS pending, if AOS was filed AFTER visa expired?

[mson 0]

Hello,

My wife entered the US legally with an O-1 visa. That visa expired in April of this year, and we submitted our AOS package (485, 130) in August. We also expedited our 131 to obtain an advance parole document, which has been approved and is now in hand. My wife needs to travel out of the country for 1.5 months in September and October, and from all of our online research and after making an infopass appointment to speak with a USCIS rep, it appears that my wife SHOULD be able to travel out of the country and return using the AP. I understand that the AP is not a guarantee of admittance, etc. etc., but this is at least the intent of the AP, right?

Well, I of course had to obtain a second opinion from an attorney, and he advised me strongly that my wife should NOT travel. He stated that the fact that we submitted our AOS application AFTER my wife's visa expired means that there is a high chance that the customs officer may just choose not to permit reentry. Is this true?? Again, I understand that on the AP document itself it states that there is no assurance that my wife would be allowed in using the AP. But is the risk that high and the chance for refusal of entry that great???

Any insights and opinions would be greatly appreciated, thank you!

[Harpa Timsah 13,258]

4 months of overstay, getting close to 6 months, which is a 3 year ban. When exactly in April was the visa over and when exactly in August did you file? What is the date on the NOA1?

Edited August 28, 2013 by Harpa Timsah

[mson 0]

Hi Harpa,

Visa expired 4/10/13. NOA1 received date is 8/1/13 and notice date is 8/6/13. Yes we have about four months of overstay, but the AOS submission stops the clock, no? Thanks very much for your input.

[Harpa Timsah 13,258]

Yes, AOS stops the clock so you have about 4 months of overstay. So not a formal ban, but getting rather close to it. Your call.

[mson 0]

Thanks. I guess my question is whether it makes any difference whether we filed the AOS before or after the visa expired for the purposes of traveling with the AP. I assumed not, but the attorney I most recently spoke with stated that having filed after visa expiration made it more risky and advised against traveling at all. I wasn't sure if there was some actual legal or regulatory distinction between the two scenarios for the purposes of travel with AP, or if the attorney was just giving typically conservative advice ("just don't travel")... Any thoughts?

[hmh33 117]

It's actually the date on your I-94 that matters, not the date the visa itself expires. They may be the same date, but it's best to check.

Assuming you do have definitively less than 180 days of overstay, the attorney is being conservative. Traveling is just another chance for something to go wrong. A small chance, but still a chance. CBP don't have to let you in on your return, even with advance parole. There's no appealing from that decision, so in that unlikely event, you'd be forced to spend many months outside the US waiting for an immigrant visa.

Weigh the risks and think about why you want to travel. A vacation just for fun? Maybe skip it or go somewhere in the US. Visiting sick or elderly family? Worth the risk.

[mson 0]

Thanks very much for the additional feedback, hmh33. Yes, I meant the i-94 date. Okay, given our reasons for travel, we're going ahead with it!

[hmh33 117]

One last thing - make sure she can travel back to the US in time for the interview, which could well be in the Sept-Oct timeframe. She'll typically get 2 or 3 weeks' notice by mail or email.