Left country without advanced parole, now trying to return on emergency tourist visa

[Duke & Marie 1,389]

22 minutes ago, RamonGomez said:

Here is a case where someone left before getting advanced parole. They managed to get back in the US and their AOS was approved.

 

 

 

That thread would suggest they were let back in using her ESTA and the CBC Officer gave the benefit of the doubt, maybe figured let USCIS work out if she’d abandoned her AOS or not (maybe lack of knowledge on his part) BUT it also says they refiled AOS on the last post.. not had that same AOS approved.

 

this scenario is an exception to the rule, not the rule, they got lucky and found a CBC officer who maybe wasn’t familiar with the whole abandoned AOS process, who knows, either way they ended up having to refile  I485. It’s also a very old post 2013, a lot has changed since then, I find it unlikely they’d get away with it these days since it’s become far more common.
 

So if applying the same to this case, we now know she’d have to refill i485 and we also know she’d have to come back the the US using her visitor visa to do so, which means she’s entering with intent to adjust, still not permissible and CR1 still remains the safer option 

 

 

Edited February 28, 2021 by Duke & Marie

[RamonGomez 272]

3 minutes ago, Duke & Marie said:

That thread would suggest they were let back in using her ESTA and the CBC Officer gave the benefit of the doubt, maybe figured let USCIS work out if she’d abandoned her AOS or not (maybe lack of knowledge on his part) BUT it also says they refiled AOS on the last post.. not had that same AOS approved.

 

this scenario is an exception to the rule, not the rule, they got lucky and found a CBC officer who maybe wasn’t familiar with the whole abandoned AOS process, who knows, either way they ended up having to refile  I485. It’s also a very old post 2013, a lot has changed since then, I find it unlikely they’d get away with it these days since it’s become far more common.
 

So if applying the same to this case, we now know she’d have to refill i485 and we also know she’d have to come back the the US using her visitor visa to do so, which means she’s entering with intent to adjust, still not permissible and CR1 still remains the safer option 

 

 

 

The I485 refiling is a given. Entry on a B2 isn't the only way back in, and is probably going to be an uphill battle. She could be paroled in, possibly with deferred inspection. She would still need the AP card to board the airplane. CBP does have some leeway here. We don't know why OP's wife had to leave, it could've been a dire emergency. 

 

Parole is a legal form of entry that you can use to file the new I485 which is what they did. The poster in that thread also had a seemingly very competent attorney.

 

I'd roll the dice rather than just give up and be separated from my spouse and kid for 2-3 years. 

 

 

[Duke & Marie 1,389]

24 minutes ago, RamonGomez said:

 

The I485 refiling is a given. Entry on a B2 isn't the only way back in, and is probably going to be an uphill battle. She could be paroled in, possibly with deferred inspection. She would still need the AP card to board the airplane. CBP does have some leeway here. We don't know why OP's wife had to leave, it could've been a dire emergency. 

 

Parole is a legal form of entry that you can use to file the new I485 which is what they did. The poster in that thread also had a seemingly very competent attorney.

 

I'd roll the dice rather than just give up and be separated from my spouse and kid for 2-3 years. 

 

 

What I don’t understand is how can you gain entry using AP if you know AP was approved post abandonment of AOS?

 

Isn’t it a case of all underlying applications submitted in conjunction with the overarching application (i485) become null and void if the i485 is denied or abandoned? We know if i485 is denied work authority is lost, and that if you leave without AP, AOS is considered as abandoned, so why should AP itself be valid if approved after abandonment of the overarching application and you be let back in, I can’t say I’ve seen any clauses says excepts to this rule apply. 
 

CR1 isn’t taking 2-3 years, and it wouldn’t be 2-3 years from now since they already have a pending i130.. if tourist visa is denied Hubby can always take the child to visit her (after the child’s AP is approved of course) unfortunate yes, ideal no, but many of us have had to deal with separation as part of migration.would rolling the dice not now be considered as entering with intent to adjust also?

Edited February 28, 2021 by Duke & Marie

[RamonGomez 272]

10 minutes ago, Duke & Marie said:

What I don’t understand is how can you gain entry using AP if you know AP was approved post abandonment of AOS?

 

Isn’t it a case of all underlying applications submitted in conjunction with the overarching application (i485) become null and void if the i485 is denied or abandoned? We know if i485 is denied work authority is lost, and that if you leave without AP, AOS is considered as abandoned, so why should AP itself be valid if approved after abandonment of the overarching application and you be let back in, I can’t say I’ve seen any clauses says excepts to this rule apply. 
 

CR1 isn’t taking 2-3 years, and it wouldn’t be 2-3 years from now since they already have a pending i130.. if tourist visa is denied Hubby can always take the child to visit her (after the child’s AP is approved of course) unfortunate yes, ideal no, but many of us have had to deal with separation as part of migration.would rolling the dice not now be considered as entering with intent to adjust also?

The first question - you would use AP to board the plane (pretty sure the airline doesn't have access to USCIS systems), and then pray that CBP paroles you in, possibly with deferred inspection. CBP does have leeway to parole someone in if they cannot make a final decision at the port of entry. Of course it's not a sure thing, just like trying to get a an emergency tourist visa isn't a sure thing.

 

I'm not claiming to know all the answers, I'm just trying to give OP an alternative to consider after 20+ posts repeating  "you messed up, you need to do CR1, no other options". I would definitely suggest getting an attorney involved. But this idea has worked in at least one case, so it's not just pure hypothesis.

 

If the filed an I130/I485 but don't have AP yet, that means they probably filed within the last 6 months (a timeline would really help here). The I130 should probably be adjudicated within 6-8 months, then whatever time is needed on the I-824, then the very slow NVC, and then a massive backlog at the Guangzhou consulate. And unless OP has a Chinese passport, China is currently closed off to foreigners, and will likely continue to be for a very long time. 

[Boiler 45,731]

I am reasonably sure that the Airline does not have access but also know that the passenger manifest is checked, now quite how and to what depth I do not know. Certainly read accounts of people being refused boarding.

 

So lets us say you get on the Plane, I used AP and was paroled in every time I used it I was sent to Secondary and sat there for a while, seems still the norm, so not likely you will be just sent on your way, may be possible. If you were what status would you then be seeking to adjust from?

 

I think it is is reasonable to assume you would be quizzed and everything come out. I assume you could be paroled in, not sure how likely it is, I assume not very.

 

Then we have the issue of being on parole rather than admitted. I assume the idea is re enter and file to adjust again, now if admitted, with a few exceptions you certainly can, but paroled? I know a parolee is in a very different situation, so do not know.

 

I suppose one other option is to be admitted on B status. possible but also unlikely.

[RamonGomez 272]

13 minutes ago, Boiler said:

I am reasonably sure that the Airline does not have access but also know that the passenger manifest is checked, now quite how and to what depth I do not know. Certainly read accounts of people being refused boarding.

 

So lets us say you get on the Plane, I used AP and was paroled in every time I used it I was sent to Secondary and sat there for a while, seems still the norm, so not likely you will be just sent on your way, may be possible. If you were what status would you then be seeking to adjust from?

 

I think it is is reasonable to assume you would be quizzed and everything come out. I assume you could be paroled in, not sure how likely it is, I assume not very.

 

Then we have the issue of being on parole rather than admitted. I assume the idea is re enter and file to adjust again, now if admitted, with a few exceptions you certainly can, but paroled? I know a parolee is in a very different situation, so do not know.

 

I suppose one other option is to be admitted on B status. possible but also unlikely.

See here: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2

 

[Boiler 45,731]

So that rules out a suggestion that she just wants to visit, that she will then adjust if paroled in can be assumed.

[HRQX 4,145]

1 hour ago, RamonGomez said:

If the filed an I130/I485 but don't have AP yet, that means they probably filed within the last 6 months (a timeline would really help here).

I-130 was NOT filed since it was an AOS from K-1 case:

14 hours ago, tkyang99 said:

Yes it was K1 and K2.

 

2 hours ago, RamonGomez said:

The AP card, even if issued after her departure

OP said AP document was not issued: "they never sent us the travel document!"

 

[Boiler 45,731]

I have to acknowledge my bit  in the confusion about the I 130, for some reason the K1/2 seemed unlikely. I assumed adjusting from some other way.

[RamonGomez 272]

2 minutes ago, Boiler said:

So that rules out a suggestion that she just wants to visit, that she will then adjust if paroled in can be assumed.

Yes, basically show up at the border, plead your case with CBP, and pray that they'll feel bad for you and parole you in. Maybe they'll assume it was an innocent mistake and that OP didn't know the advance parole rules, or whatever (OP hasn't given much info). OP's wife will probably get a deferred inspection appointment to sort things out, but the key is she will have been inspected, in the US legally, and have a basis for a new I-485. It worked at least once, I think it's worth a shot vs. having to wait 2+ years to be with your spouse and kids again. I think the B2 visa (if she can even get one in China) is an uphill battle and I would try that as a last resort. Again I think this is definitely attorney territory.

 

OP just keep in mind that if your wife does get denied entry using this (or the B2 approach) she will almost certainly have to go through all the quarantine process in China again....

[Mike E 11,741]

2 hours ago, RamonGomez said:

Here is a case where someone left before getting advanced parole. They managed to get back in the US and their AOS was approved.

 

 

 

That timeline still says pending.  The last post from that member is that the green cars was supposed to be into the mail. And then .... nothing.  

[RamonGomez 272]

8 minutes ago, HRQX said:

I-130 was NOT filed since it was an AOS from K-1 case:

 

OP said AP document was not issued: "they never sent us the travel document!"

 

 

Good point. So yeah, OP would probably be looking at 2 years minimum before his wife makes it back to the US.  

[Boiler 45,731]

Possible to enter on a K and need to file a I 130, not common.

 

Sort of sounds like EAD was only applied for?

 

[aaron2020 11,651]

Tkyang99,

 

The only legal option is to file the I-130 and pursue a spousal visa.  

Leaving the US without AP is a mistake that can't be fixed.

 

She can apply for a visitor visa, but don't get her hopes up since she has already shown immigrant intent by filing AOS.

 

Sorry.  

[Boiler 45,731]

I went and read that post from 7 years ago.

 

Sounded to me like she used VWP to get to the US and then was paroled in with deferred inspection. May also have benefited from some processing issues and in any event the powers that be decided they simply did not want to go there and let it pass. I can see that point of view why waste time on what is just delaying a situation.

 

I think we can probably put that route to bed as in this case they do not have AP,  a B visa seems somewhat unlikely and whilst we can not be sure what happened to the AP application, if there was one seems unlikely anything will come through now.

 

Asking for an emergency B so I can immigrate to the US is obviously possible, getting one approved seems somewhat unbelievable.  But then I have seen some weird things on here. 

Edited February 28, 2021 by Boiler