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

[RamonGomez 272]

10 minutes ago, Boiler said:

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. 

 

I assumed OP had the AP card which he could ship to his wife in China when I read this:

 

Quote

Thank you very much for the response. She actually departed before the I-131 was approved, but the I-131 was still approved a month later, which confused me. Is it because of this? https://resources.envoyglobal.com/blog/uscis-updates-practice-of-denying-pending-forms-i-131-for-abandonment-due-to-international-travel

 

It seems like there's not a ton of clarity here. A timeline would be very useful. 

 

But yeah, OP's wife needs that AP card (or some other visa) to board the plane, otherwise this isn't going to work. 

[Boiler 45,731]

Sometime especially when the full story is essential then a Lawyer is obviously needed.

 

On here we usually never get all the details but often that does not really matter, however in cases like this there could be something that does, sometime filling in the holes in the story with the norm just does not work.

[mari04 100]

Just speaking straight on logistics. I wished it could work, but it will not. IF she tries to enter using AP card and AP was granted AFTER your wife left the country, at the border CBP officers will have to "activate" the AP card. The way it is done (my wife actually went to visit her mom on AP), they will take you to a separate room (this is not selective but rather mandatory process) and will start filling out application (they actually do it for you) to activate AP card for the first time. This is mandatory process that is applied to all entrants with AP who use AP for the FIRST time. During this process they will find out about departure prior to approval of AP and will turn her back. This is very bad idea to even try. The only way I see it may work is if she travels on visitor visa (which is highly unlikely to be granted due to the fact that she already demonstrated immigration intent) and apply for AoS. It is illegal to plan such entry to adjust but I give you 100% guarantee that 99% of tourists coming here and "all of a sudden decide to stay" plan it from the beginning. I never done it, obviously, but all these people claiming here that "it was on the spot decision" are just simply lying. All of them planned it from the beginning. The bottomline, though, is that she will not get visa and she will be turned away with AP. My recommendation would be to not try all these AP or tourist visas but start CR-1 process immediately, on Monday.

[tkyang99 7]

6 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.

 

 

The AP card, even if issued after her departure, should at least let her board the airplane and she may be let in by CBP (probably with deferred inspection). At that point its a roll of the dice with what happens with USCIS and I would hire a good lawyer.

 

You're probably looking at 2+ years minimum if you go the I130 CR1 route BTW. She wouldn't be able to visit, and unless you're a Chinese national it could be at least a year before you can visit her in China.

Hmm that's very interesting thanks for that, looks like that person got incredibly lucky. But what I don't understand was how they even got on the plane in Germany, if they didn't have any sort of AP document? 

[Boiler 45,731]

1 minute ago, tkyang99 said:

Hmm that's very interesting thanks for that, looks like that person got incredibly lucky. But what I don't understand was how they even got on the plane in Germany, if they didn't have any sort of AP document? 

They were from a VWP country, so I assume used that, pre approved ESTA.

[SalishSea 17,970]

2 minutes ago, tkyang99 said:

Hmm that's very interesting thanks for that, looks like that person got incredibly lucky. But what I don't understand was how they even got on the plane in Germany, if they didn't have any sort of AP document? 

ESTA.   Your wife isn't eligible.

[tkyang99 7]

1 hour ago, mari04 said:

Just speaking straight on logistics. I wished it could work, but it will not. IF she tries to enter using AP card and AP was granted AFTER your wife left the country, at the border CBP officers will have to "activate" the AP card. The way it is done (my wife actually went to visit her mom on AP), they will take you to a separate room (this is not selective but rather mandatory process) and will start filling out application (they actually do it for you) to activate AP card for the first time. This is mandatory process that is applied to all entrants with AP who use AP for the FIRST time. During this process they will find out about departure prior to approval of AP and will turn her back. This is very bad idea to even try. The only way I see it may work is if she travels on visitor visa (which is highly unlikely to be granted due to the fact that she already demonstrated immigration intent) and apply for AoS. It is illegal to plan such entry to adjust but I give you 100% guarantee that 99% of tourists coming here and "all of a sudden decide to stay" plan it from the beginning. I never done it, obviously, but all these people claiming here that "it was on the spot decision" are just simply lying. All of them planned it from the beginning. The bottomline, though, is that she will not get visa and she will be turned away with AP. My recommendation would be to not try all these AP or tourist visas but start CR-1 process immediately, on Monday.

That's interesting, I didn't realize the card has to be activated. But what happened was that her I-765 was approved first and she has received the card in the mail but it was not a combo( it says "invalid for re-entry"). The I-131 was approved a month later separately for some reason, and we still haven't received the AP document. Our lawyer tells us we probably will never get it since USCIS probably made a mistake in approving the I-131. Anyway just wanted to clear up our situation and wanted to thank everyone for all this info really appreciate it.

[SalishSea 17,970]

1 minute ago, tkyang99 said:

That's interesting, I didn't realize the card has to be activated. But what happened was that her I-765 was approved first and she has received the card in the mail but it was not a combo( it says "invalid for re-entry"). The I-131 was approved a month later separately for some reason, and we still haven't received the AP document. Our lawyer tells us we probably will never get it since USCIS probably made a mistake in approving the I-131. Anyway just wanted to clear up our situation and wanted to thank everyone for all this info really appreciate it.

She would have needed to have biometrics also.

[little immigrant 801]

21 hours ago, tkyang99 said:

 

Thank you very much for the response. She actually departed before the I-131 was approved, but the I-131 was still approved a month later, which confused me. Is it because of this? https://resources.envoyglobal.com/blog/uscis-updates-practice-of-denying-pending-forms-i-131-for-abandonment-due-to-international-travel

 

This is all really confusing and I have not been able to get any sort of straight answer from USCIS. As for now both her I-485 and I-131 case statuses online doesn't show that they have been rejected or abandoned. At this point we just feel there is very little hope of receiving the AP document, and even if we did, it probably won't be valid. That's why we are trying to figure out other alternatives if any are still open to her.

 

CR1 it is

[tkyang99 7]

8 minutes ago, Jorgedig said:

She would have needed to have biometrics also.

Yes she actually had her biometrics taken before leaving, and it was applied to both the I-765 and I-131 applications. We mistakenly assumed that meant she could leave and wait for the AP overseas. Also our lawyer did a very bad job in communicating the dangers and risks to us. 

[tkyang99 7]

6 hours 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?

We don't have a pending I-130 since she came in on a K-1 visa previously. So is CR1 really taking 2-3 years? Any chance that the backlog would speed up after Covid is over? I also heard a lot of the delays is due to consulates being closed overseas?

[RamonGomez 272]

9 minutes ago, tkyang99 said:

We don't have a pending I-130 since she came in on a K-1 visa previously. So is CR1 really taking 2-3 years? Any chance that the backlog would speed up after Covid is over? I also heard a lot of the delays is due to consulates being closed overseas?

It was taking about 18 months or so (maybe +/- 2 months) prior to Covid and there's now maybe 6 months of backlogged cases. And Guangzhou used to be a pretty fast consulate in terms of interview appointments. Everything is slower nowadays, lockbox receipt notices, I130 approval, NVC has slowed down bigtime, etc. I would definitely plan on at least 2 years and hope it goes faster. 

 

Sounds like your wife's departure was an honest mistake on your end. It's odd that the EAD and AP weren't simultaneously approved, but it is what it is. If you can get her a document that let's her board a flight back to the US, she has a non-zero chance of making this work. 

Edited February 28, 2021 by RamonGomez

[aaron2020 11,651]

If CBP discovers that she left before AP was issued, she would be denied entry.  Getting on a plane with AP is not the safe point.   

 

OP has only one legal course of action; file the I-130 for a spousal visa.  The sooner he files, the sooner she can immigrate to the US.  Delay in filing the I-130 will just make the separation longer.  

 

The chances for a B-2 visitor visa is zero when she discloses that she has sought to immigrate to the US by filing for AOS.  

The longer this thread goes on giving OP false hope of some magical way of getting back into the US, OP will hold out for a B-2 and not file the I-130 when he should be filing an I-130 ASAP.  

Edited February 28, 2021 by aaron2020

[HRQX 4,145]

1 hour ago, tkyang99 said:

So is CR1 really taking 2-3 years?

Expedite attempts (after filing the petition) are always free to try. What was the reason for her departing the US? (I.e. emergency, etc.)

[tkyang99 7]

2 hours ago, RamonGomez said:

It was taking about 18 months or so (maybe +/- 2 months) prior to Covid and there's now maybe 6 months of backlogged cases. And Guangzhou used to be a pretty fast consulate in terms of interview appointments. Everything is slower nowadays, lockbox receipt notices, I130 approval, NVC has slowed down bigtime, etc. I would definitely plan on at least 2 years and hope it goes faster. 

 

Sounds like your wife's departure was an honest mistake on your end. It's odd that the EAD and AP weren't simultaneously approved, but it is what it is. If you can get her a document that let's her board a flight back to the US, she has a non-zero chance of making this work. 

Yes it's going to be a tough road no matter what, I really appreciate your kind words. I've been jumping between despair and trying to look on the bright side. What I finally realized is that these immigration laws are not going to be able break up our family no matter what, in the end our family will be even closer and we will treasure each other even more because of these hardships. Thanks again for your help.

Edited February 28, 2021 by tkyang99