AOS pending, Out of Status for a long time, K1 visa

[NYMOM83 0]

Hello everyone,

This will be my first time to post here but I have been reading this forum since I started my own K1 visa journey last 2009.

Arrived here in NY: December 2009

Got Married: January 2010

I-94 expired: May 2010

Because of financial reason/issues and new baby. We kept on holding off the AOS application.

Ive never been out of the US since I arrived (2009). I got my SSN and NY State ID few months after I got here.

Finally filed AOS/EAD/AP: December 2013

Got the combo card (EAD/AP) : January 2014

Potential Interview Waiver letter: March 2014

I want to go visit my family soon but I am very scared of the 3 or 10 years bar because I have been out of status for a long time.

If I decide to leave and my husband will receive the GC in the mail, Can he just send it to me thru Fedex/DHL or any courier available?

I hope that someone can enlighten me with my concerns.

Thank you!

[Harpa Timsah 13,258]

If you leave before your GC is approved you will be banned from reentry. AP won't cover your ban.

[aleful 1,905]

hi

ditto, you cannot leave until you get your GC

[Hypnos 6,576]

Matter of Arrabally and Yerrabelly actually says the exact opposite, that travel under AP does not constitute a "departure" under the INA, so the three and ten year bars do not apply to AP holders.

In saying that, I personally wouldn't risk travel on AP with at least six months of overstay, as you're rolling the dice on the CBP officer you encounter being knowledgeable of the law and good at his job. Unless it's literally a life or death situation, I'd recommend you wait for your green card (the bars don't apply to permanent residents), but ultimately it's your decision to make.

Edited April 26, 2014 by Hypnos

[Harpa Timsah 13,258]

Arrabelly is not yet settled into law.

[Leatherneck 693]

Don't assume your petition will be approved, resulting in a GC.

Do not leave until you have a GC in your possession.

[Hypnos 6,576]

Indeed, Arrabally is not yet settled, but the BIA's decision is binding on DHS (including USCIS). The warnings that used to be on the I-131 application regarding overstay potentially giving three or ten years bars have been removed, and I've seen advice online from several lawyers (including Carl Shusterman) that Arrabally applies to all recipients of AP, including pending adjustees.

As I said above, unless someone is on their deathbed I wouldn't recommend it, but it's an option that exists. Someone with at least six months of overstay who decides to travel on AP is counting on luck when it comes to whether they can re-enter the US again.

Edited April 26, 2014 by Hypnos

[Harpa Timsah 13,258]

Could another BIA case overturn it?

[Hypnos 6,576]

That's beyond my pay grade. I don't even play a lawyer on TV.

Edited April 26, 2014 by Hypnos

[christeen 966]

Wait for the GC unless it is a family emergency... Don't risk being banned away from your babies...

[Jon and Krissy 452]

Hello everyone,

This will be my first time to post here but I have been reading this forum since I started my own K1 visa journey last 2009.

Arrived here in NY: December 2009

Got Married: January 2010

I-94 expired: May 2010

Because of financial reason/issues and new baby. We kept on holding off the AOS application.

Ive never been out of the US since I arrived (2009). I got my SSN and NY State ID few months after I got here.

Finally filed AOS/EAD/AP: December 2013

Got the combo card (EAD/AP) : January 2014

Potential Interview Waiver letter: March 2014

I want to go visit my family soon but I am very scared of the 3 or 10 years bar because I have been out of status for a long time.

If I decide to leave and my husband will receive the GC in the mail, Can he just send it to me thru Fedex/DHL or any courier available?

I hope that someone can enlighten me with my concerns.

Thank you!

Wait for the green card....

[Harpa Timsah 13,258]

That's beyond my pay grade. I don't even play a lawyer on TV.

All right. It just seems to me that if the only thing keeping this "rule" going is a court precedent, not a law, that it could be brought up again in court, reexamined, and overturned at any time. What would happen to people outside the US when that happened? Seems so flimsy.

Personally I think the reasoning in that case was extremely flawed. An AP entrance can count for a legal, AOS-able entry, and in fact many EWI people get TPS or something and reenter on AP so that they can AOS; so I am not sure how an AP leaving doesn't count for a departure.

[California14 1]

Hello everyone,

This will be my first time to post here but I have been reading this forum since I started my own K1 visa journey last 2009.

Arrived here in NY: December 2009

Got Married: January 2010

I-94 expired: May 2010

Because of financial reason/issues and new baby. We kept on holding off the AOS application.

Ive never been out of the US since I arrived (2009). I got my SSN and NY State ID few months after I got here.

Finally filed AOS/EAD/AP: December 2013

Got the combo card (EAD/AP) : January 2014

Potential Interview Waiver letter: March 2014

I want to go visit my family soon but I am very scared of the 3 or 10 years bar because I have been out of status for a long time.

If I decide to leave and my husband will receive the GC in the mail, Can he just send it to me thru Fedex/DHL or any courier available?

I hope that someone can enlighten me with my concerns.

Thank you!

Hi..

I have same problem like you about out of status right now. I have problem that i dont have joint sponsor so i can file my AOS. My I-94 expt Jan 2014 and i am pregnant.

My question

1. did you file AOS with still financial problem too or your spouse income meet with the requirement?

2. Do you have any problem when u file AOS because the time?

My lawyer said i must file AOS within 2 years since i came.

Thank you

[Harpa Timsah 13,258]

Novel: You need to either find a joint sponsor or your husband needs to get a job. There is no way around the financial requirement.

[KayDeeCee 4,893]

Hi..

I have same problem like you about out of status right now. I have problem that i dont have joint sponsor so i can file my AOS. My I-94 expt Jan 2014 and i am pregnant.

My question

1. did you file AOS with still financial problem too or your spouse income meet with the requirement?

2. Do you have any problem when u file AOS because the time?

My lawyer said i must file AOS within 2 years since i came.

Thank you

There is no deadline to file for AOS, so the lawyer stating you must file within 2 years makes no sense really. However, you need to find a joint sponsor, or your spouse needs to start earning enough to meet the requirement for you to file, and be able to financially support you and the child you are about to have soon. The I-864 is required, and it will always be required for you to adjust. You are out of status and have the possibility of being detained until you get our AOS filed. That is not something you would want to happen.