Getting Worried

[shikarnov 7]

Hi All,

My wife is going to Russia for the holidays on an approved Advance Parole. I can't go with her because of financial considerations and because I can't take time from work.

I'm starting to freak out a little bit since she entered the US with a K1 visa in May of 2008, and although we married within the required 90 days, AOS has been a long, expensive, arduous, and ongoing process. Her AP was approved only this September, in fact. But she doesn't want to wait for her Green Card to go back to see her family (which could be another few months). In other words, her K1 visa expired long ago, along with her I-94.

I'm sending her with the Advance Parole document (and a receipt for a Change of Address filing since we moved several weeks ago), the latest NOA from her I-485 petition, her Social Security Card, her Employment Authorization Card, a copy of our marriage certificate, and a few photos.

At this point, she's going come Hell or high water, but I'm still concerned. Is there anything else I should think about sending her with? A personal letter? More of the AOS documentation? A better excuse for travel to tell the border guard than "I miss my family"?

Anybody have any advice, experience, or reassurance?

Thanks,

Z

[shikarnov 7]

Internet research is freaking me out even more. Due to a number of reasons, we didn't file for AOS until longer than 180 days after the I94 expired. And from what I can tell, that will be enough to ban her for 3 years at the border... Or not. Everything (infuriatingly) depending on the border guard's whim.

This is all so confusing. Is it an overstay if married within 90 days? Some say yes, some say no. Is there going to be problems at the border? Some say yes, some say no. Is my wife going to end up handcuffed and treated like vermin until the next flight to Russia? Will anybody contact me if there's a problem? No answers anywhere.

And why is it that time in between marriage and filing will be forgiven with AOS but not an approved Advance Parole - which should not be granted at all if there's a problem. Why is there no clear set of rules to follow?

And what if we decide to abandon this AOS procedure and begin a fresh K3 visa proceeding. Will she still have problems entering the country even with a new visa (assuming it gets approved)?

/sigh. I hate bureaucracy.

[Brother Hesekiel 2,236]

But she doesn't want to wait for her Green Card to go back to see her family (which could be another few months). In other words, her K1 visa expired long ago, along with her I-94.

I'm sending her with the Advance Parole document (and a receipt for a Change of Address filing since we moved several weeks ago),

I quote from the bible:

"Those who have allowed a lapse in their status, or have not maintained a status for more than 180 days, should not travel on the advance parole documents, even if covered under 245(i), as the act of departing the US would create the bar to adjustment even if the USCIS issued the travel document in error to the applicant.

You decide whether or not that applies to your wife's case.

[belinda63 3,038]

If she is determined to go there is nothing you can do to stop her. At worse she will be denied reentry and you will have to file for a new visa for her to come. Keep your fingers crossed and pray to the powers above.

Or rub your lucky Bob doll if you have one.

[TBoneTX 45,293]

Visit http://www.cbp.gov and find the port of entry through which your wife would return to the U.S. Make a phone call, and talk with a CBP officer. If he/she says that your wife "should" or "will" be OK, get a name and ID number. Give the information plus the date & time of your call to your wife before she travels.

After you call, please let us know what CBP says.

[MIDUVIL 34]

hello,

It seems me that if she has her advance parole, all things are ok and she can travel?

Can somebody confirm that, please?

[Old Dominion 26]

By issuing the EAD and AP, the question of her lapse has been resolved and there is nothing to fear about her traveling.

[shikarnov 7]

I had a last minute consultation with an immigration attorney, and he was very adamant that my wife must not travel, and that there's no recourse for the lapse except getting the Green Card. So, in spite of her own adamant ideas, she's opted to stay in the US until AOS is complete.

Luckily, Delta is letting us use the money spent toward another ticket in a few months.

Thanks for your help.

Z

[Dakine 26]

The lawyer is wrong! LOTS of people travel using the AP even not having filed for AOS longer than you.

[Brother Hesekiel 2,236]

You have a smart lawyer. I, too, believe the chance that a 3-year bar would be triggered is too high to and not worth the risk, and I'm saying that after having read up on this the past 3 days, purely by coincidence.

[MIDUVIL 34]

Your lawyer is wrong.

She can travel with the AP without the green card, it's done for that.

[TBoneTX 45,293]

Your lawyer is wrong. She can travel with the AP without the green card, it's done for that.

(Do you have a license to practice law?) I'd believe the lawyer, and confirm the dangers of traveling (or lack thereof) by calling CBP. Regardless, the OP has let discretion be the better part of valor, so his issue is settled.

Doesn't it state on the AP form itself that readmission to the U.S. is not guaranteed simply by presentation of the form?

Edited December 28, 2009 by TBoneTX

[Old Dominion 26]

I'd never trust a lawyer's advice in response to only a phone call. Things too often get garbled on the fly. But anyway the matter is resolved.

[lucyrich 20]

Even though you've decided what to do, I'll point out that your lawyer was exactly correct, assuming she had that much out of status time.

USCIS Link

The issue is the 180 days of unlawful presence time. That much out of status time triggers a 212 a 9B bar. The AP doesn't help against that grounds of inadmissibility (and they will issue the AP without verifying whether or not you're inadmissible under 9B). From the link above:

Note:

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 can be barred from admission to lawful permanent resident status, even if they have obtained Advance Parole. Aliens who have been unlawfully present in the United States for more than 180 days, but less than one year, are inadmissible for three years; those who have been unlawfully present for one year or more are inadmissible for 10 years. Aliens who are unlawfully present, then depart the United States and subsequently reenter under a grant of parole, may still be ineligible to adjust their status.

If she traveled with AP, she'd be denied re-entry at the border, and you'd have to start over and apply for a new visa, and then the visa would be denied and you'd have to apply for a waiver of the 9B bar. See the waivers forum for details and a sample of the tribulations you'd be subject to.

[TBoneTX 45,293]

If she traveled with AP, she'd be denied re-entry at the border, and you'd have to start over and apply for a new visa, and then the visa would be denied and you'd have to apply for a waiver of the 9B bar. See the waivers forum for details and a sample of the tribulations you'd be subject to.

Si, man. Thanks for blowing away all of the perilously incorrect assurances from incautious posters above.