Denied Re-entry With AP?

[Griffon76 0]

What I'm reading is what I have feared. I just don't think we want to risk the chance of him being barred and having to start the process all over again. We would not be able to afford the fees for a while as well and hubby basically would be homeless there. Sure family can take him in but for how long and how it would affect us being separated for so long. Too many negatives to chance it.

[misa 2]

I have a question which maybe someone knows for sure the answer (wish Zyggy was here).

Even though there's the loophole in the INA regarding what constitutes an overstay and unlawful presences (I say it's a loophole because it mentions I-94s which Canadians are not normally issued and without an I-94 Canadians are determined to be overstayed/unlawfully present on the date of decision by USCIS or a judge), can CBP, upon learning of the person's last visit, determine that their previous visit was overstayed and deny them reentry even though they have an AP issued and in hand?

[eau_xplain 2]

I have a question which maybe someone knows for sure the answer (wish Zyggy was here).

Even though there's the loophole in the INA regarding what constitutes an overstay and unlawful presences (I say it's a loophole because it mentions I-94s which Canadians are not normally issued and without an I-94 Canadians are determined to be overstayed/unlawfully present on the date of decision by USCIS or a judge), can CBP, upon learning of the person's last visit, determine that their previous visit was overstayed and deny them reentry even though they have an AP issued and in hand?

Yes. The USCIS website has this to say about Advance Parole:

Caution

Due to recent changes to U.S. immigration law, travel outside of the United States may have severe consequences for aliens who are in the process of adjusting their status, extending their nonimmigrant stay, or changing their nonimmigrant status. Upon return, these aliens may be found inadmissible, their applications may be denied, or both. It is important that the alien obtain the proper documentation before leaving the U.S.

Admission into the U.S. is not guaranteed. In all cases, the alien is still subject to immigration inspection at a port of entry to determine whether the alien is admissible into the country.

Unlawful Presence

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods may be barred from admission, even if they have obtained Advance Parole. Those aliens unlawfully present in the United States for more than 180 days but less than one year and depart voluntarily before the start of removal proceedings are inadmissible for three years; those who are unlawfully present for one year or more are inadmissible for ten years.

Aliens who have concerns about admissibility should contact an immigration attorney or an immigrant assistance organization accredited by the Board of Immigration Appeals before making foreign travel plans.

Read here for more details.

[athena_ny 1]

Thanks for finding that Jane.

However, doesn't the adjudicating officer have the authority to deem her husband as an overstay as they have his date of entry on file (his I-485)? Also, the last part of what you posted is interesting -- "unless the person comes to the attention of INS or the Immigration Court." He's already at the attention of USCIS currently.

I'd also seek a lawyer's advice on this but I think if I were in her husband's position, I would not leave until I had a GC in hand.

The adjudicating officer would have that authority, but that wouldn't be determined until the interview, at which point it wouldn't matter because overstay is not a reason for denial if you are married to a USC.

[John & Annie 0]

We traveled to and from the UK with no problem using AP.

Obviously this is a personal decision, but the only time I would recommend not leaving the country on AP is if you have accumulated overstay time.

Otherwise, there is no reason to deny you.

[reed 0]

So now that I read that, I guess I'm feeling that it was a waste to spend the $ for the travel document since hubby came on a visitor's visa and we got married only a few days before his 180 days was up (October 2006). We didn't file for AOS until we had sufficient documents and $ to pay for it all which was July 2007.

Hi,

I am not quite sure why you think they would refuse him crossing because of overstay, since you said in the part I have quoted from you, that you got married a few days before his 180 days were up... ? or perhaps there is something I didn't understand of your situation, if so my apologies.

If I remember well, Canadian are allowed to visit the USA for a period of up to 182 days( 6 months) before it is considered overstay...

I thought I would give you my two cents on the situation, and give you my own experience which happen to be quite similar to yours in that aspect.

I crossed the border in November 2005 as a visitor from Canada. My wife and I got married in May 2006, on pretty much the last day of the "authorized stay for Canada visitor". We weren't able to filed until May 2007 for AOS, AP, and EAD. I had put down my brother's wedding as the first trip we wished to make up north, which was at the beginning of august. We received the AP in the mail a week(day for day) before his wedding and made last minute plan to get there in time.

To be honest with you, we never found it easier to cross the border, coming back to the USA. We got to the booth, we gave the officer my wife driver's licence, and car registration and insurance; as well as my Employment authorization card and Advance Parole document.

He looked through them, asked me if I had a passport. I said that I didn't and usually used my driver's license and birth certificate for IDs. I asked him if he wished to see them, he said there was no need to. He gave back my wife's documents and told me I just need to go inside to get my AP stamped.

We parked the car, sat inside for no more than 10 minutes, an officer called me up, gave me my AP stamped and a little stamped receipt as well that he told me to keep with the AP for next time I cross the border. And we were on our way.

Hope it helps, good luck with everything!

Reed