Legal entry, but overstayed 180days+. Advance Parole risky?

[kettlefish 10]

hi peeps

my L1A expired last october, so I'm just over 6 months overstay. Wife and I are planning a honeymoon to Africa to meet parents in Dec 2014, but I'm a bit worried about the Visa processing times on the AOS. I'm planning to submit on Monday, but there could always be delays.

soooo we are unsure whether to file a I-131 concurrently with the I-130 and AOS and EAD? The idea being is that maybe if GC is not approved by December then I-131 might be? I have no other reasons to be denied except the overstay.

what to doooo?

[f&c 50]

Our attorney told us that my wife was ineligible for AP, because she was out of status at the time we filed AOS. She also said that she would be subject to a 10 year ban if she left the US. I suppose there is no harm in applying since it is free, but you should probably double check if you're eligible for I-131.

[aaron2020 11,651]

With an overstay, don't risk using AP.

Is the trip worth the risk?

Why not wait for the green card before going?

[kettlefish 10]

Our attorney told us that my wife was ineligible for AP, because she was out of status at the time we filed AOS. She also said that she would be subject to a 10 year ban if she left the US. I suppose there is no harm in applying since it is free, but you should probably double check if you're eligible for I-131.

hmm yeah. I see what you're saying; so technically I'm not allowed to even apply for the I-131 because I'm currently OOS (out of status).

With an overstay, don't risk using AP.

Is the trip worth the risk?

Why not wait for the green card before going?

Hmm well it's just a big occasion, family and non-refundable holiday etc. But you guys are right, may have to cancel if we don't get the appointment in time and not risk getting a bar with AP.

Thanks

[kettlefish 10]

So I found this pretty interesting:

Caution: If the foreign national has any unlawful presence issues or concerns, travel outside of the U.S. is ill-advised even if you have an approved Advance Parole Document. If the foreign national is unsure whether they have any unlawful presence issues, they should thoroughly discuss the matter with an immigration attorney. Please note that a failure to maintain status or being out of status is not the same as unlawful presence.

From http://srwlawyers.com/adjustment-of-status-marriage-to-u-s-citizen/

I find that confusing.

[zuluweta 250]

There is a Board of Immigration Appeals case in 2012 that dealt with a similar situation as the OP. Basically, even if an AOS applicant was out of status but received an AP document, then he/she should be able to re-enter the US and the 3 year/10 year bar should not apply.

http://www.gurfinkel.com/imm_updates131c.htm

[f&c 50]

hmm yeah. I see what you're saying; so technically I'm not allowed to even apply for the I-131 because I'm currently OOS (out of status).

Hmm well it's just a big occasion, family and non-refundable holiday etc. But you guys are right, may have to cancel if we don't get the appointment in time and not risk getting a bar with AP.

Thanks

You could try applying for it, but the problems may come if and when you actually use it to reenter the US. You are at the mercy of a CBP officer, and you never know what they may decide. My wife said she wouldn't have risked it even if she obtained AP.

[f&c 50]

So I found this pretty interesting:

From http://srwlawyers.com/adjustment-of-status-marriage-to-u-s-citizen/

I find that confusing.

Here is a link that may clarify the confusion:

http://www.murthy.com/2013/06/03/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence/