Yodrak,

Could you please explain the meaning of this distinction?

Novotul

If you entered origionally on a K1...that visa is only valid for one legal entry. Using an AP document...you are "parolled" (i.e. released) into the US for some humaniarian purpose.....i.e. to be re-united with your spouse. You are lagally here, but kinda have no visa class or status for being here.

DF

Not quite...

The difference is this... When you first arrived into the US on a K-1, you were admitted to the US. That is your physical self and your legal self were both allowed into the US. THis is important, because only those individuals whose legal self is in the US have access to the due process and courts that our legal system provides.

When one is paroled into the US. One's physical self is permitted to be in the US, but your legal self is still at the POE waiting to get admitted. Basicially what this means that you have given up your right to access the legal system of the US to fight the USCIS in the event that the USCIS denies your AOS petition. You have in effect given up your right to appeal an adverse decision. All they have to do once you are denied is escort you to the nearest plane to reunite your physical self with your legal self...

If your AOS is successful, you are admitted to the US as a permanent resident. It's no difference as if you went to the POE with an immigrant visa.

thanks for the explanation.....sounds right to me.

zyggy,

I believe that a parolee also has limited access to the legal system to fight off the local prosecuter should they get into grave enough activities. Not limited to the USCIS and their application to adjust.

I like your statment about reuniting the physical and legal selves.

Yodrak

Me too! Does that allow one to turn around and kiss your own a$$ goodbye??

Sorry, just some levity for a Friday.

Zyggy, I just came across this post and am not at all sure that it is entirely accurate.

I just did a bit of research on this issue and noticed that "continuous legal presence" in the US since the filing of the adjustment of status petition is one of the legal requirements for qualification. Congress provided a narrow exception to the physical presence requirement by directing that "an alien shall not be considered to have failed to maintain continuous physical presence in the United States for the purposes of sub paragraph (A) by virtue of brief, casual, and innocent absences from the United States." 8 U.S.C. 1255a(a)(3)(. The Attorney General, by regulation, interpreted an absence to be "brief, casual, and innocent" only if the alien obtained advance parole before leaving the United States or if the departure was out of the alien's control. 8 C.F.R. 245a.2((6). "Advance parole" consists of the Attorney General's regulatory pre-authorization for an alien to be paroled into the United States upon arrival at the border without the appropriate visa or other documents necessary to enter lawfully. 8 C.F.R. 212.5(f).

The Board of Immigration Appeals (Board) has interpreted the statutory exception to the continuous physical presence requirement for "brief, casual, and innocent absences" as only preserving the alien's eligibility for legalization under the Immigration Reform and Control Act, and not as a substantive redefinition of an entry into the United States for other immigration purposes. In re Singh, 21 I. & N. Dec. 427, 434-435 & n.8 (1996) (en banc).

What this appears to mean is that for the purposes of the applicable AOS statutes, authorized brief, casual, and innocent absences are not deemed legal "departures" and/or "readmissions" to/from the US, meaning that your "legal" self actually remains in the US during such departures. Consequently, the main difference between this and Zyggy's post above is that, based on all this information, AOS applicants who use advance parole do NOT give up the right "to access the legal system of the US to fight the USCIS in the event that the USCIS denies your AOS petition."

P.S.
Please do not misinterpret this post to mean that AOS applicants who have otherwise committed infractions of US immigration laws can leave and reenter the US with impunity if they just obtain advance parole (they can't). That issue is completely separate and distinct from the distinctions that are being discussed above.

To continue my P.S. above, the reason that's the case is because the courts have generally construed the "brief, casual and innocent" absences exception I discussed above as only applicable to the "continuous physical presence" requirement of legalization. It does not affect the generally applicable definition of what constitutes an "entry" into the United States under the law, since the courts have also inferred that Congress only intended to bestow travel privileges on lawful temporary residents (as opposed to the ones who were here unlawfully prior to their departure). This allows the border patrol to review the "entry" for compliance with all other legal requirements (other than the "continuous physical presence" requirement of AOS eligibility) which causes may cause significant problems for people who violated immigration laws prior to their departure.

On a related subject, I was curious about the statutory authority which specifies sufficient reasons for AP applications, which would answer the question of "what facts allow me to qualify for AP." The statutory authority on this issue seems to be in 8 USC 1255a((3)(A), which states the following:

"The Attorney General shall, in accordance with regulations, permit the alien to return to the United States after such brief and casual trips abroad as reflect an intention on the part of the alien to adjust to lawful permanent resident status under paragraph (1) and after brief temporary trips abroad occasioned by a family obligation involving an occurrence such as the illness or death of a close relative or other family need."

In other words, it appears that "any family need" is sufficient to allow us to qualify for AP. I have not yet looked at the applicable cases but based solely on the statute above, USCIS has no discretion but to approve AP petitions that demonstrate such "family need" for AP.

I just took a brief look at the cases and do not see any that would seem to conflict with the information in the above post. Please let us know if your practical experience with AP applications has been different.

P.S.
I have no idea why VJ has been converting portions of my statutory references to smilies.

am,

Because certain letter-parenthesis combinations that are used to make text 'smilies' are assumed to be intended smilies and so the site automatically translates them into fancier graphic smilies.

When you use a combination for which this happens leave a space between the letter and the parenthesis. It will make the reference look slightly odd, but not as odd as a smiley.

Yodrak