Got AP today, but worried...

[er1c 0]

We received my wife's AP documents today. We received 2 AP documents (identical). I assume this means that she can leave the country twice?

My major concern is that we took quite a bit of time to file for AOS. This was due to financial and medical reasons (she got pregnant but had some complications), so we were really hurting money wise trying to pay all the medical bills etc.

We filed for AOS 1 year after we got married. I am terrified that if she travels they wont let her back in because of this 1 year "lag"... Do you think she is safe to go home to visit????

[JillA 2]

We received my wife's AP documents today. We received 2 AP documents (identical). I assume this means that she can leave the country twice?

My major concern is that we took quite a bit of time to file for AOS. This was due to financial and medical reasons (she got pregnant but had some complications), so we were really hurting money wise trying to pay all the medical bills etc.

We filed for AOS 1 year after we got married. I am terrified that if she travels they wont let her back in because of this 1 year "lag"... Do you think she is safe to go home to visit????

You receive 2 AP papers, but that does not mean you can only use it twice. The first time it is used, you go into secondary and the customs officer keeps one copy, and stamps the other and gives it back. Then, the next time you use it, gets stamped again, and so on. It can be used as many times as you like until it expires and/or the GC arrives.

I'm not sure about the other part of your question regarding the late AOS filing, sorry. Did you get married within the 90 days though? I think as long as you get married within the 90 days, it's OK. I don't know how long you have to file AOS.

Edited April 12, 2009 by JillA

[Kathryn41 3,205]

You are wise to be concerned. If your wife had over 180 days but less than one year of out of status days (I-94 expired) then if she leaves the US she would incur a 3 year ban and not be allowed back in until it has passed. If she has incurred more than 1 year of out of status days then if she leaves the US she would incur a 10 year ban and would not be allowed back in until it has passed. There is a hardship waiver that you can apply for once the ban is in place, but it is hard to get and certainly not worth taking the risk on the off chance you might be one of the few who succeeds in getting it.

If your wife entered on a K-1, her status expired 90 days after her arrival. If you married right when she arrived and it was a year after that that you filed, she may only have a 3 year ban to face. If you married near the end of her 90 days and it has been a year since the marriage, then she will incur a 10 year ban. It is not safe for her to leave the US as she will not be allowed to return.

She has waited this long. Wait a little bit longer. Once the AOS is approved and she has received the green card, her out of status time will be forgiven and she will be able to leave - AND return to - the US.

Edited April 12, 2009 by Kathryn41

[TinTin and Samby 11]

I would like to hear other's interpretation of this situation. I do not beleive that Kathryn41's interpretation is accurate in this instance. My understanding (though I am certainly not certain) is that the out of status time (beginning with the expiration of the I-94) is negated at the AOS APPLICATION stage, not the APPROVAL stage. Therefore, any travel during ADJUSTMENT OF STATUS (assuming advance parole is in hand) is safe. Could other's comment on their understanding? Thanks.

Warm Regards,

Samby

[Bobby+Umit 161]

I would like to hear other's interpretation of this situation. I do not beleive that Kathryn41's interpretation is accurate in this instance. My understanding (though I am certainly not certain) is that the out of status time (beginning with the expiration of the I-94) is negated at the AOS APPLICATION stage, not the APPROVAL stage. Therefore, any travel during ADJUSTMENT OF STATUS (assuming advance parole is in hand) is safe. Could other's comment on their understanding? Thanks.

Warm Regards,

Samby

I would like to hear other's interpretation of this situation. I do not beleive that Kathryn41's interpretation is accurate in this instance. My understanding (though I am certainly not certain) is that the out of status time (beginning with the expiration of the I-94) is negated at the AOS APPLICATION stage, not the APPROVAL stage. Therefore, any travel during ADJUSTMENT OF STATUS (assuming advance parole is in hand) is safe. Could other's comment on their understanding? Thanks.

Warm Regards,

Samby

No, she is correct.

This is what the AP instructions state: (I am using the data provided by the OP)

If your unlawfully present for more than a year, your subject to a 10 year ban. (which the OP is, since they waited for more than a year to file for AOS) (this is Section A under Travel Warning Regarding Unlawful Presence)

What is unlawful presence?

Section C states - Unlawful presence is defined " or, after the period of authorized stay has expired"

In the OP's case, they went pass the authorized stay of the I-94, before they filed for the AOS.

Only by filing for the AOS will it put your status in "pending" and stop the clock.

Many people state that this overstay will be forgiven - however, the instructions/rules/laws do not state this at all. They do state what happens if you are out of status. You are relying on one person checking your paperwork to allow you do do this.

Section E states that if you acquire 180 days before the date of you were considered in authorized stay, you can trigger the ban. Only by sending in the AOS would that place the OP in a period of authorized stay.

The instruction goes on to state you would need to apply for a waiver if found inadmissible.

(All this info is listed in the I-131 instructions)

So - rule of thumb is, don't wait for AOS, get it in before your authorized stay expires.

(yes - I know this is worst case scenario - but that is the way I roll.)

Edited April 12, 2009 by Bobby_Umit

[FRJ 0]

i wouldnt risk it...

[TinTin and Samby 11]

I would like to hear other's interpretation of this situation. I do not beleive that Kathryn41's interpretation is accurate in this instance. My understanding (though I am certainly not certain) is that the out of status time (beginning with the expiration of the I-94) is negated at the AOS APPLICATION stage, not the APPROVAL stage. Therefore, any travel during ADJUSTMENT OF STATUS (assuming advance parole is in hand) is safe. Could other's comment on their understanding? Thanks.

Warm Regards,

Samby

I would like to hear other's interpretation of this situation. I do not beleive that Kathryn41's interpretation is accurate in this instance. My understanding (though I am certainly not certain) is that the out of status time (beginning with the expiration of the I-94) is negated at the AOS APPLICATION stage, not the APPROVAL stage. Therefore, any travel during ADJUSTMENT OF STATUS (assuming advance parole is in hand) is safe. Could other's comment on their understanding? Thanks.

Warm Regards,

Samby

No, she is correct.

This is what the AP instructions state: (I am using the data provided by the OP)

If your unlawfully present for more than a year, your subject to a 10 year ban. (which the OP is, since they waited for more than a year to file for AOS) (this is Section A under Travel Warning Regarding Unlawful Presence)

What is unlawful presence?

Section C states - Unlawful presence is defined " or, after the period of authorized stay has expired"

In the OP's case, they went pass the authorized stay of the I-94, before they filed for the AOS.

Only by filing for the AOS will it put your status in "pending" and stop the clock.

Many people state that this overstay will be forgiven - however, the instructions/rules/laws do not state this at all. They do state what happens if you are out of status. You are relying on one person checking your paperwork to allow you do do this.

Section E states that if you acquire 180 days before the date of you were considered in authorized stay, you can trigger the ban. Only by sending in the AOS would that place the OP in a period of authorized stay.

The instruction goes on to state you would need to apply for a waiver if found inadmissible.

(All this info is listed in the I-131 instructions)

So - rule of thumb is, don't wait for AOS, get it in before your authorized stay expires.

(yes - I know this is worst case scenario - but that is the way I roll.)

I'm aware of what the instructions say in the I-131 application form. I have read them many times. My reading of them doesn't support your conclusions. As you state, "only by sending in the AOS would that place the OP in a period of authorized stay". THis is exactly the point that I am making. The OP (and I) have sent in the AOS and we are both officially in the "protected" status of "Pending Adjustment". So if the travel commences after receiving NOA from application of AOS, then the travel is undertaken while the person is in a protected status and therefore shouldnt be subject to any bans. If the travel occurred before the AOS NOA **AND** the return to the USA from that travel occurred after 180 days (or 365 days) subsequent to the expiration of any prior legal status, then the bans would be invoked. This is my reading of the instructions. I would appreciate other's responding with their interpretations and understanding. Thanks.

Warm Regards,

Samby

[Jon&Lindsey 0]

The way I read it, I agree with Bobby and Kathryn. I understood it that the overstay was forgiven when the GC was granted, not just because you have filed for AOS. Absolutely anyone could just send the papers off, not just anyone will be approved. So, I don't see that just filing for AOS negates any previous overstay days between your authorized stay expiring and AOS filing - at least that's the way I read it. Anyway, since it is at best unclear, it's probably better not take the risk, given the potential consequences?

[Bobby+Umit 161]

I would like to hear other's interpretation of this situation. I do not beleive that Kathryn41's interpretation is accurate in this instance. My understanding (though I am certainly not certain) is that the out of status time (beginning with the expiration of the I-94) is negated at the AOS APPLICATION stage, not the APPROVAL stage. Therefore, any travel during ADJUSTMENT OF STATUS (assuming advance parole is in hand) is safe. Could other's comment on their understanding? Thanks.

Warm Regards,

Samby

I would like to hear other's interpretation of this situation. I do not beleive that Kathryn41's interpretation is accurate in this instance. My understanding (though I am certainly not certain) is that the out of status time (beginning with the expiration of the I-94) is negated at the AOS APPLICATION stage, not the APPROVAL stage. Therefore, any travel during ADJUSTMENT OF STATUS (assuming advance parole is in hand) is safe. Could other's comment on their understanding? Thanks.

Warm Regards,

Samby

No, she is correct.

This is what the AP instructions state: (I am using the data provided by the OP)

If your unlawfully present for more than a year, your subject to a 10 year ban. (which the OP is, since they waited for more than a year to file for AOS) (this is Section A under Travel Warning Regarding Unlawful Presence)

What is unlawful presence?

Section C states - Unlawful presence is defined " or, after the period of authorized stay has expired"

In the OP's case, they went pass the authorized stay of the I-94, before they filed for the AOS.

Only by filing for the AOS will it put your status in "pending" and stop the clock.

Many people state that this overstay will be forgiven - however, the instructions/rules/laws do not state this at all. They do state what happens if you are out of status. You are relying on one person checking your paperwork to allow you do do this.

Section E states that if you acquire 180 days before the date of you were considered in authorized stay, you can trigger the ban. Only by sending in the AOS would that place the OP in a period of authorized stay.

The instruction goes on to state you would need to apply for a waiver if found inadmissible.

(All this info is listed in the I-131 instructions)

So - rule of thumb is, don't wait for AOS, get it in before your authorized stay expires.

(yes - I know this is worst case scenario - but that is the way I roll.)

I'm aware of what the instructions say in the I-131 application form. I have read them many times. My reading of them doesn't support your conclusions. As you state, "only by sending in the AOS would that place the OP in a period of authorized stay". THis is exactly the point that I am making. The OP (and I) have sent in the AOS and we are both officially in the "protected" status of "Pending Adjustment". So if the travel commences after receiving NOA from application of AOS, then the travel is undertaken while the person is in a protected status and therefore shouldnt be subject to any bans. If the travel occurred before the AOS NOA **AND** the return to the USA from that travel occurred after 180 days (or 365 days) subsequent to the expiration of any prior legal status, then the bans would be invoked. This is my reading of the instructions. I would appreciate other's responding with their interpretations and understanding. Thanks.

Warm Regards,

Samby

Read Section E more carefully.

I am talking about the ban being triggered because out being out of authorized stay due to waiting 9 months to file for AOS.

Here are the facts:

OP applied for AOS one year after marriage. They used a K-1, which the authorized stay is usually 90 days (I-94). The Marriage was done shortly after arrival according to the timeline.

The I-94 would of expired in March 2008. (90 days)

Between March and the time of sending in the AOS (December 2009) - they were out of status - or beyond the authorized stay (pass the I-94 authorized stay).

If they filed the AOS during the 90 day window of the I-94, then yes, the clock stops. Waiting a year later for AOS does not "forgive" this overstay, the clock is still ticking till the NOA is received.

Once they applied for the AOS, status is pending, but again, they waited 9 months to do that.

So, their period of (new) authorized stay started after they received the NOA/AOS. They had 9 months of overstay (from the I-94 date) prior to this authorized stay. (confusing I know, but going by the timeline, it makes sense)

The instructions specifically states AOS as putting you into "authorized stay" (Section D) - again, the OP waiting one year before applying, so there was a long period of overstay priorto the AOS application.

That is where the danger is. That is where, from my understanding of the instructions (section E), could put the OP in risk of a ban upon trying to get back into the US because of that overstay that was accumulated before the NOA/AOS.

[pacificleye 4]

The way I read it, I agree with Bobby and Kathryn. I understood it that the overstay was forgiven when the GC was granted, not just because you have filed for AOS. Absolutely anyone could just send the papers off, not just anyone will be approved. So, I don't see that just filing for AOS negates any previous overstay days between your authorized stay expiring and AOS filing - at least that's the way I read it. Anyway, since it is at best unclear, it's probably better not take the risk, given the potential consequences?

Bobby and Kathryn are right. It does not matter if you sent in your papers or not. As long as you have been here unlawfully, you should not travel while in pending status. I understand where you coming from with your interpretation. My guess is that is is a technicality because why would they give you an AP if you cannot use it. But since different departments handle different paperworks, this creates a glitch sort of to speak. There have been case of people receiving them( AP and EAD, just to be denied at the AOS, because they did not qualifie for the AOS). Now it seems like you have made up your mind on the matter waiting for someone to confirm your judgement on the matter. So if you wanna risk it, be my guest... But it would be wise to listen to the voice of reason: Yalls Green Card is not so far away!! You've waited this long, I would think any travel plans can wait just a bit longer. I got my GC just a month after the Work permit. You got so many people telling you to wait, I would listen to them.

[TinTin and Samby 11]

Thanks to all for sharing your insights. I'm going to go into the local office this week on an infopass and see what they have to say....(not that their word is necessarily reliable, but at least we will have another data point.)

Warm Regards,

Samby

[BermyCat 1]

Thanks to all for sharing your insights. I'm going to go into the local office this week on an infopass and see what they have to say....(not that their word is necessarily reliable, but at least we will have another data point.)

Warm Regards,

Samby

You might want to call the customs and border patrol people at the POE you're planning to travel from and return through. It's ultimately their decision to allow you to return.

~ Catherine

[TBoneTX 43,410]

You might want to call the customs and border patrol people at the POE you're planning to travel from and return through. It's ultimately their decision to allow you to return.

Si, man... AND, take care before traveling in south Texas in the "De-Constitutionalized Zone" if ANYTHING in your legal status is untoward.

[er1c 0]

wow...

I never expected so many replies. I sincerely thank you all for your input. I guess I will have to break to the news to her that she will have to wait just a little bit longer. We were all excited because airfares to Rio are down to $663 and figured we could make a trip for her sisters wedding.

Thanks again and I welcome any additional news or input!

[TinTin and Samby 11]

Hi All,

I went to the local USCIS office today under an INFOPASS appointment and they re-confirmed Kathryn41's and Bobby_Umit's interpretation of the triggering of the ban. They were suprised that our AP was approved, as it clearly was 7 months (more than 180 days) from expiration of TinTin's I-94 and the NOA date of the I485 AOS application. They said that when they processed AP requsts locally, they would not approve AP requests in this situation in order to avoid the potential confusion of the petitioner believing they were authorized for return, but, as Kathryn41 and Bobbu_Umit state, are at the whim of a border patrol officer to invoke or not the 3 year (or 10 year) ban that technically would be in pace even if the AP was used.

Thanks again to all who shared their understandings and experiences on this topic. I appreciate it.

Warm Regards,

Samby