Adjustment of Status questions

[ukrtps 0]

in a similar boat here with k-1 overstay. i'm a usc and my spouse (on TPS) just got her i-512T travel document. if i understand the mechanics correctly, we can travel abroad and when we come back, she should be admitted/inspected, and then we'll be able to AOS from there? will she get a new i-94 number? i haven't been able to find any concrete confirmation of how this all works. she has no criminal or any other negative history that should make her "inadmissible," but i understand it's still somewhat of a gamble. appreciate any feedback.

Edited February 6 by ukrtps

[Crazy Cat 42,561]

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[Crazy Cat 42,561]

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[carmel34 3,661]

20 hours ago, ukrtps said:

in a similar boat here with k-1 overstay. i'm a usc and my spouse (on TPS) just got her i-512T travel document. if i understand the mechanics correctly, we can travel abroad and when we come back, she should be admitted/inspected, and then we'll be able to AOS from there? will she get a new i-94 number? i haven't been able to find any concrete confirmation of how this all works. she has no criminal or any other negative history that should make her "inadmissible," but i understand it's still somewhat of a gamble. appreciate any feedback.

TPS to AOS can be complicated especially with the new administration.  This sounds like a case where consultation with an experienced US immigration attorney would be well worth the investment and may avoid mistakes down the road.

[Demise 1,354]

22 hours ago, ukrtps said:

in a similar boat here with k-1 overstay. i'm a usc and my spouse (on TPS) just got her i-512T travel document. if i understand the mechanics correctly, we can travel abroad and when we come back, she should be admitted/inspected, and then we'll be able to AOS from there? will she get a new i-94 number? i haven't been able to find any concrete confirmation of how this all works. she has no criminal or any other negative history that should make her "inadmissible," but i understand it's still somewhat of a gamble. appreciate any feedback.

 

Now, don't quote me on it but I do know one DACAer who was a K-2 overstayer (same rules apply) who tried that (left and re-entered with AP) and was denied. Your problem isn't TPS, your problem is the K-1. Now, I'm having a hard time finding anything to explain this specific situation, policy manual sucks and I suspect that there might not be a concrete rule in this case (i.e. does AP wipe a prior K-1).

 

So, you can try that, but you should plan on needing an I-601A waiver instead. Or just skip that part and just proceed straight to an I-601A and consular processing since that definitely will work.

 

 

I'll shoot the aforementioned a message and see if I can get a copy of the I-485 denial and what exactly USCIS wrote there.

[ukrtps 0]

appreciate it! i know DACA AP and TPS travel doc aren't quite the same, as DACA folks have to provide an actual need/reason to get out of the country, iirc. we're also going to be consulting an attorney on this, for sure.

 

they were denied i-485, i assume and not the re-entry? i know the rules have changed in the last couple of years , as far as what "inspection" means on readmission for TPS travelers (linking some info below).

 

https://www.americanimmigrationcouncil.org/research/temporary-protected-status-overview

 

Quote

Alternatively, some TPS recipients may be eligible to adjust status if they were granted advance permission from USCIS (referred to as advance parole), traveled abroad, and were paroled back into the United States. After July 2022, when USCIS discontinued the use of advance parole for TPS recipients, some TPS recipients may become eligible to adjust status after being granted authorization to travel through a TPS-specific travel document, and then being inspected and admitted upon their return.

 

https://www.ilrc.org/sites/default/files/2023-03/New Policy on TPS and Travel (2023).pdf

 

Quote

When a TPS recipient returns from authorized travel after July 1, 2022, they will be admitted (back) into TPS. Such an admission will enable them to meet the threshold INA § 245(a) adjustment requirement. TPS recipients who travel and return with the new I-512T travel document will be inspected and admitted into TPS under MTINA6 and will also be “inspected and admitted” for INA § 245(a) adjustment purposes. This includes TPS holders who previously entered without inspection and were present without authorization when they were initially granted TPS. An admission is different from a parole entry, see below, but for most applicants the practical effect of the two types of re-entries on adjustment eligibility will be the same as both fulfill the 245(a) threshold requirement.

 

[Demise 1,354]

28 minutes ago, ukrtps said:

appreciate it! i know DACA AP and TPS travel doc aren't quite the same, as DACA folks have to provide an actual need/reason to get out of the country, iirc. we're also going to be consulting an attorney on this, for sure.

 

they were denied i-485, i assume and not the re-entry? i know the rules have changed in the last couple of years , as far as what "inspection" means on readmission for TPS travelers (linking some info below).

 

https://www.americanimmigrationcouncil.org/research/temporary-protected-status-overview

 

 

https://www.ilrc.org/sites/default/files/2023-03/New Policy on TPS and Travel (2023).pdf

 

 

 

Yeah the concern is kinda the fact that DACA AP is actually more permissive. Remember the whole debacle of Trump trying to treat TPSers who originally Entered Without Inspection who then got AP as continuing to be EWIs? That came in part to some section which was essentially treating TPSers who re-turned as resuming their prior status.

 

That obviously didn't get upheld because courts have long held that the "admitted or paroled" requirement in INA 245(a) only requires procedural regularity - you showed up at entry port and as long as you didn't pretend to be a citizen and were let in you satisfy it. Even if that entry was by fraud or negligence of the inspecting officer.

 

Like the question isn't the "entry" part of it, it's if the old K-1 is still somehow dangling over you since a K non-immigrant can only AOS based on a petition from the person who got you said K visa. Anyways I shot that person a message and until I hear back I don't really have much else to add. Now they did try to use AP, got a new I-94, and were denied due to the old K-2.

 

 

Like personally as is, my advice would be - yeah sure try that, but be ready to file proceed via the DS-260/I-601A process if that fails.

Edited February 7 by Demise

[ukrtps 0]

had a consult with a lawyer, and they were under the impression that this plan should work. probably going to start looking up places to go to here shortly and will update once we travel. thanks, everyone.