Married for 2 years but can't afford to file AOS until now

[KayDeeCee 4,893]

Please do not go abroad even though it means delaying seeing your family. You have been out of status for nearly 2 years now. If you leave the US, you will not be allowed back in and will incur a 10 year ban. You cannot use an Advance Parole travel document either, even though they will issue you one if you request it. You need to get your green card first before you can safely travel outside of the US. Once your green card is approved, any out of status time you have will be forgiven, and you can travel without worry about being denied re-entry. You are now able to apply, so it would be a shame to lose that opportunity when you are so close. You and your family just need to be a patient for a little while longer.

Good luck.

That is not the case any longer. There was a BIA ruling a few years back, Matter of Arrabally and Yerrabelly.

FAM notes now state this > http://www.state.gov/documents/organization/87120.pdf

9 FAM 40.92 N2.2 INA 212(a)(9)(B)(i)(II) Departure At Any Time

The 10-year bar under INA 212(a)(9)(B)(i)(II) does not contain the same language as the three-year bar under INA 212(a)(9)(i)(I) relating to the alien having departed voluntarily prior to commencement of removal proceedings. Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and whether the alien departed on his or her own initiative or under removal order. The one exception to this rule (see also INA 212(a((9)(B)(v)) is that an alien cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the alien’s pending application for adjustment of status. Note that this does not preclude a trip under a grant of advance parole from being considered a “departure” for any other purposes under the INA, nor does it call into question the applicability of any other inadmissibility ground. On the contrary, it is well settled that an alien who leaves the United States and returns under a grant of advance parole is subject to those grounds of inadmissibility that may apply, rather than grounds of deportability, once parole is terminated. (See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012.)

[subwayguy 100]

That is not the case any longer. There was a BIA ruling a few years back, Matter of Arrabally and Yerrabelly.

FAM notes now state this > http://www.state.gov/documents/organization/87120.pdf

9 FAM 40.92 N2.2 INA 212(a)(9)(B)(i)(II) Departure At Any Time

The 10-year bar under INA 212(a)(9)(B)(i)(II) does not contain the same language as the three-year bar under INA 212(a)(9)(i)(I) relating to the alien having departed voluntarily prior to commencement of removal proceedings. Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and whether the alien departed on his or her own initiative or under removal order. The one exception to this rule (see also INA 212(a((9)(B)(v)) is that an alien cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the aliens pending application for adjustment of status. Note that this does not preclude a trip under a grant of advance parole from being considered a departure for any other purposes under the INA, nor does it call into question the applicability of any other inadmissibility ground. On the contrary, it is well settled that an alien who leaves the United States and returns under a grant of advance parole is subject to those grounds of inadmissibility that may apply, rather than grounds of deportability, once parole is terminated. (See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012.)

My attorney explicitly said do not travel on AP if I I have overstayed. Although I haven't. The article you posted doesn't say that you are granted entry should you have overstayed and seeking entry on AP. If I were this lady, I would not travel back to the Philippines. It sounds pretty self contradictory to me, you don't have money to file AOS (which is roughly 1500 dollars) but you have money to buy two round trip tickets to the Philippines ? (Which are over 2000 dollars plus other expenses ). No offence but you need to know which one is the priority.

Alternatively, your families could come and visit your child here in the states.

[Boiler 45,560]

I think we are getting sidetracked, but I agree sounds like the money is there, just a question of priorities.

I think we are getting sidetracked, but I agree sounds like the money is there, just a question of priorities.

[KayDeeCee 4,893]

My attorney explicitly said do not travel on AP if I I have overstayed. Although I haven't. The article you posted doesn't say that you are granted entry should you have overstayed and seeking entry on AP. If I were this lady, I would not travel back to the Philippines. It sounds pretty self contradictory to me, you don't have money to file AOS (which is roughly 1500 dollars) but you have money to buy two round trip tickets to the Philippines ? (Which are over 2000 dollars plus other expenses ). No offence but you need to know which one is the priority.

Alternatively, your families could come and visit your child here in the states.

I posted a link to the BIA ruling, Matter of Arrabally and Yerrabelly and I posted a link and quote from the U.S. Department of State Foreign Affairs Manual stating the immigration law. It clearly does state that you can use AP to re-enter the US if you are an adjustment applicant. I bolded the part of the FAM section that said so. > The one exception to this rule (see also INA 212(a((9)(B)(v)) is that an alien cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the aliens pending application for adjustment of status.

Someone with overstay that is an adjustment applicant and has applied for and been given AP is not subject to the bar when leaving the US. They can use the AP to re-enter and be paroled back into the US. The I-131 instructions used to have a travel warning about not using it if you had been unlawfully present because you could trigger a 3 or 10 year bar. That warning has been removed.

No one is ever guaranteed re-entry with AP, overstay or not. Using it is up to the individual. I was just pointing out the law. Your lawyer advised you not to travel with AP before getting your green card. That is fine, but that does not mean the law states you cannot do so.

I do agree that if they have money for plane tickets, then they should spend that money on filing for AOS instead. Of course they cannot get AP or the green card to travel and re-enter without filing for AOS first, so perhaps they have money for both for now? Who knows. We just know they need to file the AOS already.