Question about Advance Parole with an overstay

[squareleg 69]

Since, you are already violated the term of visa for duration of stay. You can go back to your country of residence and enter legally.

[Transborderwife 4,666]

Since, you are already violated the term of visa for duration of stay. You can go back to your country of residence and enter legally.

This seems to be your personal hang up. Op is perfectly eligible to adjust.

[KayDeeCee 4,896]

His words were, to the effect of: "USCIS issues documents to everyone who applies, whether or not they are eligible or legally able to use them. You are not eligible. Our office NEVER files frivolous petitions. You are not eligible for advance parole."

I have to say, the severity of the response did spook my husband a little bit (though my initial reaction was what an idiot, lol).

Show your lawyer this and ask him about it >

https://fam.state.go...9FAM030209.html

9 FAM 302.9-14(B)(2) (U) Time Frames

(CT:VISA-74; 03-03-2016)

...

c. (U) 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)(B)(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 regardless of 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.)

Since, you are already violated the term of visa for duration of stay. You can go back to your country of residence and enter legally.

Stop posting this nonsense all over the place, and read up on some immigration laws. They DID enter legally already. They can legally file for AOS, an EAD and AP.

[Transborderwife 4,666]

Show your lawyer this and ask him about it >

https://fam.state.go...9FAM030209.html

9 FAM 302.9-14(B)(2) (U) Time Frames

(CT:VISA-74; 03-03-2016)

...

c. (U) 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)(B)(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 regardless of 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.)

Stop posting this nonsense all over the place, and read up on some immigration laws. They DID enter legally already. They can legally file for AOS, an EAD and AP.

Unfortunately people love to scare monger and put down aos from tourist visas on here.

[squareleg 69]

Last I checked...overstay is not legal...else they wouldn't issue visa with term/duration. Of course, there is always a loophole versus doing things legally. VJ is not for circumventing the process.

^^ posts - it's a free forum. One is allowed to post what they like. So if you don't like my posts then, please ignore them.

Now coming back to the thread - OP can return to their country and start the process legally to immigrate.

Edited June 30, 2016 by squareleg

[newacct 688]

Last I checked...overstay is not legal

Nobody claimed it was. But that's not the question.

What people confirmed was that the OP is eligible for Adjustment of Status according to the law, and the OP is eligible to leave and re-enter on Advance Parole according to the law.

In fact, "going back" to her country without AP would be VERY BAD advice, as that would trigger a ban.

Edited June 30, 2016 by newacct

[Cathi 5,795]

Thanks all. Should I file it on my own (not through the lawyer) when I get my NOA1, since he's said he won't do it? Do you think it will be obvious to him that I applied for it, or will the updates be interpretable as the EAD card being processed? Does that make sense? Not that he can really do anything after all the papers have been submitted of course, but we were hoping to use him to consult with to prep for our interview. I'd prefer not to damage the relationship!

dump the lawyer

[Transborderwife 4,666]

Last I checked...overstay is not legal...else they wouldn't issue visa with term/duration. Of course, there is always a loophole versus doing things legally. VJ is not for circumventing the process.

^^ posts - it's a free forum. One is allowed to post what they like. So if you don't like my posts then, please ignore them.

Now coming back to the thread - OP can return to their country and start the process legally to immigrate.

Again. Poor advice. Potentially detrimental. It's law that's in place not a loophole

[Cathi 5,795]

Thanks for this. I know it wouldn't be easy, just as it is not easy on this end, but being separated just isn't an option.. he's my husband. You're right, it would be a lot of effort to start from the beginning of the immigration journey on the UK side of things, but that's all we can do. Hopefully it doesn't come to that!

you are already separated seeing that you have never lived together in the first place. Just an observation

[KayDeeCee 4,896]

Last I checked...overstay is not legal...else they wouldn't issue visa with term/duration. Of course, there is always a loophole versus doing things legally. VJ is not for circumventing the process.

^^ posts - it's a free forum. One is allowed to post what they like. So if you don't like my posts then, please ignore them.

Now coming back to the thread - OP can return to their country and start the process legally to immigrate.

If you post misinformation, then it cannot be ignored. VJ should be about getting people the actual facts of the immigration laws in order to HELP THEM, not to scare them, or tell them they should leave the US when they are eligible to stay. Go troll elsewhere.

They can already stay and legally begin the process to become a permanent resident.

Overstay is unlawful presence, but guess what? Being married to a USC allows them the eligibility to file for AOS. Once they file, they are in a new period of authorized stay, and when the AOS is approved, the overstay no longer matters at all.

From the USCIS website >http://www.uscis.gov...anent-residents

Bringing Spouses to Live in the United States as Permanent Residents

You are a: U.S. citizen

Your spouse is: Inside the United States (through lawful admission or parole)

How to Apply: File Form I-130, Petition for Alien Relative, and Form I-485, Application to Register Permanent Residence or to Adjust Status, at the same time. See form instructions for more information.

[squareleg 69]

Nobody claimed it was. But that's not the question.

What people confirmed was that the OP is eligible for Adjustment of Status according to the law, and the OP is eligible to leave and re-enter on Advance Parole according to the law.

In fact, "going back" to her country without AP would be VERY BAD advice, as that would trigger a ban.

Why should you advice for someone to circumvent the ban? Shouldn't there be legal repercussion if you break the rules?

[wheresthebeef29 5]

you are already separated seeing that you have never lived together in the first place. Just an observation

Being separated by half a block is different from being separated by the Atlantic Ocean, no? Come on.

[squareleg 69]

OP has another thread where they mention not living together with their significant other i.e. they are separated.

[newacct 688]

Why should you advice for someone to circumvent the ban? Shouldn't there be legal repercussion if you break the rules?

The OP has no ban right now. Following your advice will cause them to have a ban.

There is a legal repercussion for something only if the law provides for one. You can't just make one up.

[Cathi 5,795]

You never mentioned the "little" fact that you have been here illegally since 2012 in your other thread. I can say without a shadow of a doubt it will appear like a marriage in order to obtain a green card to an IO. You have been in overstay for 4 years, you are married yet you have never lived together and don't plan to do so until at least a year from now and you are blaming your separate living arrangements on a sleep disorder. If it looks to me and others here that you married because you have been in overstay for so long, how do you think immigration will view it? Trying to blame the fact that you can't live together on a sleep disorder is just bizarre, you could rent a 2 bedroom apartment and sleep in separate rooms. Immigration does not care that you would need break your leases in order to live under one roof, especially since you have stated more than once that you both make a substantial amount of money and money is not a factor. Your case keeps getting curiouser and curiouser