Can I get advanced parole with i-130 pending?

[Hypnos 6,577]

As stated above, he has accumulated no overstay if his I-94 is marked "D/S".

[jaycali 415]

Correct me if I'm wrong, but are you saying it's possible for him to wait home in Tokyo while our docs are processing?

We would prefer to separate if he can return when all the processing for I-130 and CR-1 is done.

I'm saying it's possible for him to go back to Japan, and start the process over as a visa process rather than an adjustment of status process. Difference would be he'd wait out the process in Japan, and then get an immigrant visa from the US embassy in Tokyo, rather than wait out in the US while adjusting status. This is a different process and will take 8 - 12 months. Once he arrives in the US on a CR-1 visa, no AOS is required.

As long as his I-94 is stamped "D/S" and he has not yet been ordered removed by an immigration judge, he is just out of status and will not have a bar from re-entry.

Edited November 3, 2013 by jaycali

[Charizard 0]

As stated above, he has accumulated no overstay if his I-94 is marked "D/S".

It is marked D/S, but to be honest he missed registration for his classes and so he received an email from his advisor that his visa is terminated. I'm not sure if they requested him removed, but they did suggest him to get reinstated from Canada.

That is definitely overstay, right? ):

[Charizard 0]

OP - you're a USC? If yes, have husband file I-485 and you prepare I-864 (get tax transcripts from IRS - they're free, letter from the job and if current income low, get a joint-sponsor. You'll also need a copy of your birth certificate or passport copy to prove you're a USC sponsor). He'll also need to have a medical exam done by a civil surgeon.

Regarding the rotten tooth - look up dental schools in your area - students have free or low cost clinics and are supervised by experienced instructors and can help your husband out by fixing the problem.

Edited to add: do not let your husband leave country without his green card in hand. AP does nothing for people who have overstayed. I'd only apply for EAD, not AP.

Ok. I have everything but the medical exam, but we can get that done.

Will look into the schools for his teeth, thank you

[Charizard 0]

I'm saying it's possible for him to go back to Japan, and start the process over as a visa process rather than an adjustment of status process. Difference would be he'd wait out the process in Japan, and then get an immigrant visa from the US embassy in Tokyo, rather than wait out in the US while adjusting status. This is a different process and will take 8 - 12 months. Once he arrives in the US on a CR-1 visa, no AOS is required.

As long as his I-94 is stamped "D/S" and he has not yet been ordered removed by an immigration judge, he is just out of status and will not have a bar from re-entry.

Oh that sounds wonderful--

His I-94 is marked "D/S", but I'm not sure if he was ordered removed.

He missed registration for a quarter which is against the rules for his F1... Which is bad.

[Charizard 0]

Here is what the email said:

"The record shows that you are not registered for fall 2009 quarter. Are you still in the U.S. or back in Japan? This is to inform you that your SEVIS I-20 record will be terminated."

[Hypnos 6,577]

It is marked D/S, but to be honest he missed registration for his classes and so he received an email from his advisor that his visa is terminated. I'm not sure if they requested him removed, but they did suggest him to get reinstated from Canada.

That is definitely overstay, right? ):

No, for reasons I stated above.

For someone with an I-94 marked "D/S" only USCIS or an immigration judge can give a decision that makes the alien begin to accrue overstay; the college is neither of those.

[Charizard 0]

No, for reasons I stated above.

For someone with an I-94 marked "D/S" only USCIS or an immigration judge can give a decision that makes the alien begin to accrue overstay; the college is neither of those.

He never received any notice from uscis or an immigration judge.

How would they contact him?

I'm scared it may be because they were not able to reach him and maybe he was issued a notice and we don't know.

At the time he lost his home and was staying with a friend, so he did not have a registered address.

He also did not have an email or phone number registered other than the email used at the college.

This email was the last information we received related to his status.

[newacct 688]

You guys should have filed I-485 and I-130 concurrently. There is absolutely no reason to file them separately.

You can still file the I-485 now, at any time, with the I-130 receipt. You can only apply for Advance Parole at the same time as, or after, you file I-485. So you should file I-765 for EAD and I-131 for Advance Parole at the same time as filing I-485. They are free.

After you file, it usually takes around 3 months to get EAD/AP. I don't know if your husband can wait that long before leaving the U.S. It is possible to expedite the AP or get emergency AP, if there is some emergency situation. I am not sure his own dental treatment can count, since it's possible to get such treatment here.

As others have stated, since he is admitted for D/S, he has no "unlawful presence", and thus has no ban no matter how long he was out of status.

[Harpa Timsah 13,258]

I have seen reports of former F1 students trying to come back to the US and getting turned away at the border and told they have a ban. The CBP also has the power to make such a determination. I don't think it's wise to play the D/S game when clearly you have not kept up your student visa.

I think your husband should look for a dental school in the area. Factor in the cost of a flight to Japan and it can't be too much difference.

[Charizard 0]

You guys should have filed I-485 and I-130 concurrently. There is absolutely no reason to file them separately.

You can still file the I-485 now, at any time, with the I-130 receipt. You can only apply for Advance Parole at the same time as, or after, you file I-485. So you should file I-765 for EAD and I-131 for Advance Parole at the same time as filing I-485. They are free.

After you file, it usually takes around 3 months to get EAD/AP. I don't know if your husband can wait that long before leaving the U.S. It is possible to expedite the AP or get emergency AP, if there is some emergency situation. I am not sure his own dental treatment can count, since it's possible to get such treatment here.

As others have stated, since he is admitted for D/S, he has no "unlawful presence", and thus has no ban no matter how long he was out of status.

Yes.. I now I see I should have just sent off all forms..

At the time we were very scared and hired our friends friend who is just passed his board exams to be lawyer thinking it would be safest using someone we know...

I relied on him too much and this were the recommended steps... If only I had known of this forum from the beginning, I feel so dumb!!

We have been in relationship for 4yrs, living together from the beginning and married for over a year now, been trying to adjust status for over 4yrs. We love each other dearly.. we just want to continue to be together like everyone else ):

If this is true about his status having no ban, we would like for him to return home and wait out the time there.

I don't think he can wit here any longer and if he's there I can visit him too or something-

[newacct 688]

I have seen reports of former F1 students trying to come back to the US and getting turned away at the border and told they have a ban. The CBP also has the power to make such a determination. I don't think it's wise to play the D/S game when clearly you have not kept up your student visa.

I think your husband should look for a dental school in the area. Factor in the cost of a flight to Japan and it can't be too much difference.

But that's just like saying the CBP has the power to misinterpret any other clear area of law and deny entry to anyone else who does not have a ban.

[jaycali 415]

It is marked D/S, but to be honest he missed registration for his classes and so he received an email from his advisor that his visa is terminated. I'm not sure if they requested him removed, but they did suggest him to get reinstated from Canada.

That is definitely overstay, right? ):

Oh that sounds wonderful--

His I-94 is marked "D/S", but I'm not sure if he was ordered removed.

He missed registration for a quarter which is against the rules for his F1... Which is bad.

He never received any notice from uscis or an immigration judge.

How would they contact him?

I'm scared it may be because they were not able to reach him and maybe he was issued a notice and we don't know.

At the time he lost his home and was staying with a friend, so he did not have a registered address.

He also did not have an email or phone number registered other than the email used at the college.

This email was the last information we received related to his status.

I have seen reports of former F1 students trying to come back to the US and getting turned away at the border and told they have a ban. The CBP also has the power to make such a determination. I don't think it's wise to play the D/S game when clearly you have not kept up your student visa.

I think your husband should look for a dental school in the area. Factor in the cost of a flight to Japan and it can't be too much difference.

"Unlawful presence" otherwise known as overstay will usually cause a 3 year bar for 6 months + and 10 year bar for a year + of overstay. Since F-1 visas generally never have a specific date on their I-94, but rather an ambiguous "D/S", the "unlawful presence" calculator doesn't start accumulating overstay days until he is determined to be an overstayer by an immigration judge. The reason I tell you to be very weary about leaving the US is because violating one's student visa is still considered very serious, although the usual overstay bar is not relevant.

If it was a matter of him actually finishing his classes, but never returning, it would be less serious. If he never actually reported for classes, it's a different matter. This will be in his SEVIS record, and will be visible to any CBP officer.

Violating a student visa can trigger a 5 year bar, as Harpa suggested, and this can be determined by the CBP rather than a judge. It depends what kind of violation we're talking. If he never actually reported to the school I would absolutely, positively stay in the US until AOS is approved, unless his tooth is worth a five year stay in Japan...

Edited November 5, 2013 by jaycali

[Charizard 0]

"Unlawful presence" otherwise known as overstay will usually cause a 3 year bar for 6 months + and 10 year bar for a year + of overstay. Since F-1 visas generally never have a specific date on their I-94, but rather an ambiguous "D/S", the "unlawful presence" calculator doesn't start accumulating overstay days until he is determined to be an overstayer by an immigration judge. The reason I tell you to be very weary about leaving the US is because violating one's student visa is still considered very serious, although the usual overstay bar is not relevant.

If it was a matter of him actually finishing his classes, but never returning, it would be less serious. If he never actually reported for classes, it's a different matter. This will be in his SEVIS record, and will be visible to any CBP officer.

Violating a student visa can trigger a 5 year bar, as Harpa suggested, and this can be determined by the CBP rather than a judge. It depends what kind of violation we're talking. If he never actually reported to the school I would absolutely, positively stay in the US until AOS is approved, unless his tooth is worth a five year stay in Japan...

I'm not sure what you mean by reported to school.

He attended classes for 3qtrs and did not register for fall 2009...

[Darnell 8,479]

His status is terminated but his visa looks fine.

Is it ok to file I-485 before receiving NOA2?

I thought it was too late to file concurrent after already submitting I-130..

No, just file the big I-485 set with the a copy of receipt notice, I-797C formletter. That's it.