Advance Parole with overstay

[Unlockable 7,315]

55 minutes ago, michaeldc09 said:

Newbie here, my case is still pending for aos, I'm thinking to apply for AP, I really wanna go home because of my Dad's health. It has been more than 10 years the last time I was with my whole family in the Philippines and yes it has been 10 years I overstayed my tourist visa, my dad has type 2 diabetes and he is really in bad condition, 2 weeks ago he got fainted and ended up on the ground and hit his head and my family took him to the hospital, he got stitches on his forehead, and the Doctor said he need to be more careful especially on his diet, and has to maintain his sugar level, My father told me to "pls come home before I die" It breaks my heart hearing that from him., so it is really safe to travel back home and to apply AP while my AOS still pending, my priority date was Nov 2017, I got married with my husband on sept 06 2017, and I met my USC husband on Jan 2016, been living together since April 2016 and we are same sex couple. Thank you so much!!

You can apply for AP while you are going through AOS, but because of your history (overstaying 10 years) I would not even attempt to leave the US until you have your green card in your hands.

[Going through 5,671]

7 hours ago, NuestraUnion said:

You can apply for AP while you are going through AOS, but because of your history (overstaying 10 years) I would not even attempt to leave the US until you have your green card in your hands.

The overstay is forgiven upon marriage to the USC, so it shouldn't be a factor during reentry so long as @michaeldc09 has a valid AP since the AOS has already been filed. 

Of course entry is only guaranteed to citizens.

 

[michaeldc09 4]

My lawyer told me I can apply AP and re-entry legally with no problem!! :)

[Larindra 9]

On 12/18/2018 at 4:20 PM, michaeldc09 said:

My lawyer told me I can apply AP and re-entry legally with no problem!!

Hello I'm an overstay who traveled on AP and got paroled back in. No issues at all. All the best to you and your family. 

[PaulTheSheik 20]

The era in which people who overstayed and subsequently traveled on an approved advance parole were being denied entry upon returning are gone. There was a rule change in 2012 that stopped that policy after a case at the Board of Immigration Appeals. I remember very clearly because it happened not long after my adjustment of status.

 

Quote

The USCIS has given guidance memorandum that applicants with advance parole issued based on a 485 pending does not have the unlawful presence bar applied to them for the departure. Matter of Arrabally and Yerrabelly (25 I & N Dec. 771 (BIA 2012)) was decided on April 17, 2012 by the Board of Immigration Appeals (BIA).  The immigration judges held that a couple with pending applications for permanent residence did not “depart” the U.S. when they traveled abroad and then re-entered using their approved I-512 Advance Parole, even though they had previously overstayed their visa by more than one year. https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3748 (final).pdf

 

When attorneys say do not travel on AP if you had a previous overstay, it’s out of an over abundance of caution and the fact that it takes some people a long time to adapt to a new way of thinking/doing things. If you need to travel, do it unless you have some other red flags on your profile like criminality, fraud etc.