Overstay, no AOS filed yet, family emergency

[Blue_blood 10]

Hello. My situation is complicated and I would appreciate help and hear from people who have gone through a similar process.

I came on a VWP last January. Married (crazily) the same month (I've known my husband as a friend for years and we always joked we would elope, well...). VWP ran out in March 2014. I am now pregnant and after paperwork issues finally have everything to file now. However my father had an emergency and I would like to visit ASAP. This is what I understand : as I overstayed over 180 days I might get a ban if I leave without filing. If I wait for my AP and leave on that before my AOS has changed, I might not be left back in the country. Is this correct? What can I do? How likely is the AP to be of a risk to me upon return? I simply want to be with my father asap.

[KayDeeCee 4,896]

I suggest you file for AOS immediately and as soon as you get a case# for the AP, go to your local USCIS office and ask for emergency AP. You must take proof of the emergency with you. http://www.uscis.gov/green-card/green-card-processes-and-procedures/travel-documents/emergency-travel

Being barred from entry when you have more than 180 days of overstay no longer applies to those that have received AP based on being an AOS applicant. However, there is never a guarantee of re-entry for anyone that is not a US citizen.

There was a BIA ruling a few years back, Matter of Arrabally and Yerrabelly.

FAM notes now state this > http://www.state.gov...ation/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.)

[Blue_blood 10]

Thank you. So what you are saying is that it's essentially a risk but worth it? Would the pregnancy help in any way? How long can I stay?

[KayDeeCee 4,896]

It is a minor risk, yes. However, it is one you have to decide is worth it or not if you need to go for an emergency. When you file for AOS, you will have a biometrics appointment to attend for fingerprinting and a photo. It is usually scheduled about a month after filing, so you would need to return to attend to that. There is no real set limit on how long you can be gone.

[Blue_blood 10]

Thank you again, KayDeeCee. So after filing, wait about a month for biometrics? When is the interview? This is when I need to be present from what I understand. Will I be able to get an emergency permit or wait the usual 3 months for AP?

[KayDeeCee 4,896]

After you file, they send you a biometrics appointment letter. The appointment is typically scheduled about a month after filing, but it can vary a little. You will need to attend that appointment for fingerprints and a photo. Then you wait more and they will eventually send you a letter for your interview, which you and your USC spouse need to attend together.

Biometrics are not required to get AP. You do not have to wait for the biometrics appointment before trying to get the AP expedited or applying for emergency travel. You can do that as soon as you get the receipt notice from filing the I-131 which contains your case#. Provide documentation of your father's emergent situation and they should either expedite your AP or give you an emergency AP so you can travel right away.