Hi,

Does anybody know the reason of AP, why it was implemented? My husband and I just don't see the reason behind it. What would it hurt if spouses travelled back home for a week or two? A lot of us have some stuff to do, e.g. I'd like to organize the transport of all my stuff to America (flatware, dishes, pictures, ski, etc.).
We are just curious to know.

Thank you!

Anna

I think most of us have wondered the reason why the foreign spouse cannot leave the U.S. Unfortunately, USCIS doesn't seem to think they need a good reason, so we have to follow their rules.

You will be able to leave the U.S. as soon as your AP is approved or you get your Green Card. Sometimes, you will get your AOS interview before the AP is approved. If this happens, then the AP is no longer needed.

You will just have to wait a little longer to go back home and get your things organized.

Good luck for an approval soon.

Probably some archaic (say late 19th or early 20th century) regulation which allowed them to see who was in US legally waiting for permanent residency to be completed vs student/temp-worker vs illegal.

The reason that once the time from the K1 visa expires you do not have any status in the US. Once you file for AOS, what you're doing is telling the US Government "Hey, I have a right to stay in the US because I have a familial relationship with a US Citizen and am entitle to a benefit from the US Government"... The US Government says back.. "Ok, we'll let you stay in the US until we can process your application to see if what you state is true and you are eligible for the benefit"...

This relationship does not give one the right to enter the US if one decides to leave... Therefore, one must apply for a benefit that gives the ability to physically reenter the US to complete the process... That benefit is Advanced Parole.

Applying for this benefit tells the US Government "Hey, I need to leave the US... I'm letting you know this to tell you that I still want the benefit that I previously applied for and still wish to remain in the US permanently"... When they grant it, they're stating... "Ok, well let you leave, and while we will let your physical self enter the US to wait until the benefit is granted or denied, we will not allow your legal self to enter the US until the benefit is granted"...

Zyggy, I don't know if I necessarily agree with your physical vs. legal self distinction.

As I've previously posted, in the context of an AOS petition, "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)(B ). 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(B )(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 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).

All that this appears to mean is that for the purposes of the "continuous presence requirement" found in AOS statutes, authorized brief, casual, and innocent absences are not deemed legal "departures" and/or "readmissions" to/from the US. For all other purposes, your rights, privileges and obligations under the law remain exactly the same as if you had to qualify for an "entry" under the applicable statutes.

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.
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.

Neither do I. My guess is that it made perfect sense long ago, when you would travel to the US by ship, and getting a GC would be much faster. Nowadays it (and a good part of the entire immigration process) is pure BS, but hey <irony> IT'S THE LAW ! </irony>

I'd gladly pay a higher application fee to get my GC within a month or two instead of paying for AP and EAD.



Yep, that's the law. The problem is, it's a bad law. It benefits noone and feeds bureaucracy...

Bartek

Not sure what the real reason is...maybe the 170$ pocketed from each applicant...

That may be what you read, but several instances and stories from Immigration Attorneys
state otherwise. You may want to look for posts from folinskyinla and MDUdall with Advanced Parole and hear some of their stories...

Yes, another one of the archaic rules like the countrywise (set by BIRTH country) quota.

I'd love to review their posts but can't seem to access them. My guess is that the posts are old and VJ has archived them. Is there a way to access archived threads/posts?

As I mentioned above, I cannot find any of their posts but everything I have seen so far suggests that the information I posted above is correct. For instance, the public version of the Adjudicators' Field Manual (http://www.uscis.gov/lpbin/lpext.dll/inserts/afm_redacted/afm-95-redacted-494-1/afm-95-redacted-11619?f=templates&fn=document-frame.htm) refers to 8 CFR 245.2(a)(4) regarding effect of departure.

If you review that code section, 8 CFR 245.2(a)(4)(ii)( states: "The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act."

In other words, I still do not see how the rights of the AOS applicants who are subject to 8 CFR 245.2(a)(4)(ii)( are different from those of the same applicants who have traveled via AP. If you have conflicting information, please post it as I have yet to see any.

Anna,

A person needs some basis for requesting entry into the USA. For those who have a need to get in, but don't have a visa, advance parole fills that need.

(From the government's point of view, you can't be organizing the shipment of your stuff while waiting for you interview?)

Yodrak

Use google and select the cached version.
But, the best discussions (folinskyinla does not post to VJ) will be found on google/groups at alt.visa.us.marriage-based.

raymaga,

Point of clarification: the USCIS does not make the law, it implements the law.

Yodrak

Thanks for your answers. I came on a visa, but I don't see any point of not being allowed to travel for short amounts of time, e.g. a two week visit at home. I mean we all sit at home waiting for EAD and/or AOS and it is waisted time, I'd love to see my family for a week or so since we haven't seen each other in 8 months.

Thanks, Anna.

Anna,

You continue to miss the operative issue. You have no right to reside in the USA at this point in time. You have applied to be given that right, but until your application is approved you cannot just enter the country whenever it suits your fancy.

Yodrak

Thank you, I found this very interesting discussion.. I don't think that there is any question that any person using any type of "parole" (including Advance Parole) is not deemed "admitted" into the US within the meaning of the federal regulations (I specifically mention it in one of my posts above).

The reason that it is important is because "admitted" aliens have a number of legal rights that those who are merely "paroled" but not "admitted" do not. The way I read case law, however, is that those aliens who were initially "admitted" into the US within the meaning of the law and who subsequently used AP (as opposed to any other types of parole) to leave and reenter should have the same exact legal rights as if they never left the country using AP. This is because 8 U.S.C. 1255a(a)(3)(B ) provides that those aliens using AP for "brief, casual, and innocent absences from the United States" are NOT deemed to have violated the "continuous legal presence" requirement of the AOS statute partly because an AP entry is not considered an "admission." Consequently, aliens who have left and reentered the country on AP should be able to use their previous official "admission" into the US to give them legal rights that all other "admittees" have under the law.

As always, please note that this post as well as my all other posts on this board are only intended to express my own opinion on this subject and are not to be used as any type of advice or guidance to others. Although I am a lawyer and have reviewed a number of cases and regulations on this issue, I am not an immigration lawyer and cannot be sure that my understanding of this matter is complete. Consequently, people are strongly advised not to rely on my or any other posts or information found on the Internet without double and triple checking the accuracy and completeness of the information and, when warranted, consulting a qualified immigration attorney.

Thanks for your answers, but it still makes no sense to me. I'd like so much to visit my family, and AP takes way too long.
I just don't know any European country that has a similar regulation.

I loathe the wording of the whole thing..."Advanced Parole". I work in the Criminal Justice System, and these words in my world hold a WHOLE new meaning! hehe

Carla

I never thought of it like that Thanks for the laugh!

Carla,

It's not a new meaning at all - it's very much the same meaning.
- Make a mis-step and a paroled convict can be sent back to prison with less 'due process' than a 'normal' person.
- Make a mis-step and a paroled alien can be sent back to their home country with less 'due process' than an alien who has been admitted.

advance (no 'd') parole means exactly what the words say

Yodrak

Hello,

You do require the Advance parole to travel out of the US. It is generally issued in two months time. If your trip is very urgent then you need to prove it to the officials and have it posted to the US consulate in that country or have it posted to any of your friends house in the US.

Are you sure about that?

The way I understand it, one must apply for AND recieve the Advance Parole before they leave the US.

The ReEntry Permit is different, and more like you describe.

jonty,

I agree with meauxna.

I wrote about the 'parole' part of the term 'advance parole' in a previous thread in this post. The 'advance' part has meaning also.

Yodrak

Where did I get the idiotic notion that AP has no expiry date?

I'm looking at my husbands AP document and it appears to have a one-year 'shelf-life'.

I guess it means what it says. But I could have sworn I read something that says they don't expire.