Can she leave USA during AOS and risk triggering the 3 or 10 year bar?

[Tiggy-JIggy 0]

Hello Wise Ones!

I would appreciate your collective wisdom.

My friend is married to a US citizen. She is about to file the AOS paperwork to adjust from F-1 and wants to also file for Advance Parole to leave the USA during the AOS process so she can attend her sister's wedding back home in South Korea in December. Is this advisable or not?

The tricky part? She has fallen out of status as a student.

Now, an important point to note is that although she has violated her student status, her visa does not end until January 2012. Therefore she has not overstayed her visa and she is still within her 'Duration of Status'. According to my research on these forums and elsewhere, because her I-94 is stamped with 'D/S' (and not a specific departure date) and because no USCIS or Immigration judge issued her with instructions to leave, she is therefore not in 'unlawful presence' and therefore will not trigger the dreaded 3 or 10 year ban upon leaving and attempting to re-enter the USA.

To be sure about this, I checked this with an immigration lawyer.

Her response: 'Yes, technically you're right. Technically! I have never experienced that happen to a client, though with immigration you never know if any individual immigration officer decides to take exception to the fact she had been out of status and bar her'.

Since this lawyer has been in the business 30 years or so, she is very well-connected and on first name friendly terms with many immigration officers, immigration officials etc. (To the extent that she even knows their favorite TV shows and discusses who did and didn't win last night on 'Dancing with the Stars'!) :dance:

She therefore phoned up an actual trial attorney who works for USCIS to get his opinion. He also agreed that since she has the D/S in her I-94 and didn't overstay and was never investigated nor issued with instructions to leave, that yes, it appeared she would not trigger any 3 or 10 year ban. He said he had never experienced that happen in all his years, though again (he himself said) one never knew how things might be interpreted.

However, both he and our immigration lawyer, did say that there is a 2nd potential obstacle. Although she might not necessarily be prevented from re-entering the USA, when the time comes for USCIS to later 'adjudicate the benefit' (AKA: make a decision about her AOS), at that point they could decide against her because she had violated her student status.

My feeling is that she has violated the student status anyway, whether she goes or not. Therefore, as long as she gets back into the USA (which appears probable), she should go anyway.

Our immigration lawyer however recommends that she skip her sister's wedding and stay in the country throughout the AOS process.

My friend is torn on the issue but of course desperately wants to be at her sister's wedding.

Thoughts / input / advice welcome....

[Tiggy-JIggy 0]

ps. (me, the author of this question, again. The forum settings wouldn't allow me to edit myself for some reason.)

what about scheduling an Infopass appointment to ask USCIS quite openly if she'll be permitted re-entry or not? Or is just digging her own grave by doing that? im not sure if they might then use that information against her.

[Penguin_ie 5,994]

How long has she been out of status? I am not sure on the ban, but I think the real problem is if they will let her back in or not- even with no ban, they may not let her in and force her to apply for a CR-1 spousal visa from abroad. I know that if you AOS from an overstayed tourist visa, even if you get AP you may not be allowed back in at the border and think this would be a concern here too.

[olivier 0]

In life, it's all about priorities.Personally i would not risk it.When you decide on making your life somewhere, and such important papers are at stake, i think being at a wedding, even your sister's, is not that important.She'll get married anyways.When you can't, you can't.I hope you don't mind me playing the devil's advocate here.On the other hand, if it is so important for the bride to have her sister attending, she could always change the wedding date.In your shoes, i would not do it.I have been wainting patiently for 5 years to be able to adjust status, i did not move an inch, and won't until i hold the card in my hand.Good luck.

[milimelo 4,500]

If international student office has reported her to USCIS/ICE as no longer studying there, no form of D/S will help as she is OUT of status.

Better wait until green card in hand before venturing abroad for any reason.

[skiptex 225]

yea.. why would she risk coming..

ps.. did the sister (korea) come to USA for Sister (f1 student) herre..?

[Harpa Timsah 13,258]

Yes, agree with above. I saw a case where someone was let back in with AP but then their AOS was denied because they had triggered the bar and shouldn't have been let back in with AP. If your friend quit school, her "Status" has expired, so D/S is over. D/S doesn't mean forever as long as you want to. It means, as long as you are in school.

[CC90 90]

First, it's really never a good idea to leave with AP even if you have absolutely no issues. If something happens to the process (i.e. you're denied or miss a notice), you're taking a risk. That's not to say that AP works--and works well--for those that use it correctly, but it's generally advisable to not leave unless absolutely necessary. They've cut down the processing times in most offices to a matter of just a few months, so it's not that long of a wait considering the immense benefit.

You are correct in saying that she does not build unlawful presence until she is found and notified to be out of status. However, if she has fallen out of status because she is no longer a student or enrolling in classes, her SEVIS record has most likely been terminated. This notification from her school is exactly that notification (to which you've referred) that she is now in unlawful presence. If she has fallen out of status because she worked when she wasn't supposed to and nobody knew about it, then, yes, she would still be in lawful presence even if you admitted it on a G-325A. It really depends how she fell out of status. If she hasn't been studying, then you can bet she's been in unlawful presence.

The visa expiration date means nothing in terms of her status. The visa is used for entry. She can enter on the absolute last day that it's valid and stay entirely until she completes her studies and/or OPT legally. The visa is solely an entry document and, by itself, is no proof of her status.

Even if she does trigger a bar by leaving, she will most likely be let back in on AP--so don't take this as a green light if this happens. They will find her inadmissible at the interview if a bar has been triggered, not when she uses AP. This is, of course, assuming that the AP hasn't been revoked because of a denied application. In this case, she will be turned away. This is the distinction between "paroled" and "admitted" to the US. CBP just checks to make sure that you've already been granted parole (they can't really argue with it--unless it's been revoked), but that does not mean you've been admitted.

If she has been in unlawful presence, the amount of time since her SEVIS record has been terminated is crucial. Has it been more than 180 days? If so, there's a 3 year bar. It goes up from there. If not, she, in theory, won't have an issue even if she's been out of status (for less than 180 days). But it's still a risk any way you put it.

Edited October 1, 2011 by CC90

[ceadsearc 516]

Another thing to keep in mind is that even if she has not overstayed long enough to get a 3 or 10 year ban, leaving on AP with ANY overstay is a bad idea as she could be denied re-entry. She wouldn't need a waiver, but she'd lose her money, abandon her AOS, and have to file for a CR-1 from her home country.

She can chance it, but she HAS overstayed so it's very risky.

[CC90 90]

Another thing to keep in mind is that even if she has not overstayed long enough to get a 3 or 10 year ban, leaving on AP with ANY overstay is a bad idea as she could be denied re-entry. She wouldn't need a waiver, but she'd lose her money, abandon her AOS, and have to file for a CR-1 from her home country.

She can chance it, but she HAS overstayed so it's very risky.

The concept of advance parole means that she was granted parole into the US in advance (i.e. before she left). Thus, unless it is revoked by USCIS (which could happen if there's a bar), her parole is valid and she can enter the US even if she is otherwise inadmissible. She is not subject to inspection other than making sure the parole document is valid and has not been revoked, because she is not applying for admission into the US when she's at the border. She applied for admission when she sent the AOS packet. Thus, her admissibility will be determined when USCIS makes a decision (i.e. at the interview usually), not at the border. She has already been paroled.

Thus, as long as the document itself is valid (and has not been revoked due to a denial), she, in theory, should not be turned away at the border regardless of any inadmissibility.

Edited October 1, 2011 by CC90

[ceadsearc 516]

The concept of advance parole means that she was granted parole into the US in advance (i.e. before she left). Thus, unless it is revoked by USCIS (which could happen if there's a bar), her parole is valid and she can enter the US even if she is otherwise inadmissible. She is not subject to inspection other than making sure the parole document is valid and has not been revoked, because she is not applying for admission into the US when she's at the border. She applied for admission when she sent the AOS packet. Thus, her admissibility will be determined when USCIS makes a decision (i.e. at the interview usually), not at the border. She has already been paroled.

Thus, as long as the document itself is valid (and has not been revoked due to a denial), she, in theory, should not be turned away at the border regardless of any inadmissibility.

Everyone who applies is given Advanced Parole, regardless of whether or not they are eligible to use it. If you are otherwise ineligible to enter the US (ie because you have triggered a ban), you WILL NOT be allowed back into the United States. It's a bit of a gray area if someone has overstayed but their overstay is not long enough to constitute a ban, but admission into the US is CBP's discretion. Not a risk I would be willing to take.

[CC90 90]

Everyone who applies is given Advanced Parole, regardless of whether or not they are eligible to use it. If you are otherwise ineligible to enter the US (ie because you have triggered a ban), you WILL NOT be allowed back into the United States.

First, it's advance parole; this is key in understanding what it means to have it. I won't argue with you, but that is not technically true. Yes, you are ineligible (i.e. inadmissible) to enter the US, but when you arrive back on AP, you are not, legally, trying to or otherwise applying for admission to the US. This is a key distinction. Thus, in most cases, you will be not be stopped by CBP using it if you are inadmissible--but you will be found inadmissible by USCIS and the AOS will then be denied.

[CC90 90]

See section 3, paragraph A, subparagraphs 5 and 6 on the I-131 form instructions:

5. Although advance parole may allow you to return to the United States, your departure may trigger the 3 or 10 year bar if you accrued more than 180 days of unlawful presence...

6. Therefore, if you apply for adjustment of status after you return to the United States, continue with Form I-485 that was pending before you left, or return to a status that requires that you establish that you are not inadmissible, you will need to apply for and receive a waiver of inadmissibility...

Thus, under most circumstances when the document itself is valid, you will be paroled with a valid I-512, but that does not mean you've been admitted.

[Brother Hesekiel 2,236]

Let me explain Advance Parole in a way that is unmisunderstandable (yes, I created that word).

DHS is the mother, USCIS, CBP, and ICE are the children.

Bad girl who overstayed applies for AP from USCIS. She'll receive it, travels to Korea to the oh so important wedding.

Upon return she requests to be "admitted" to the U.S. showing her A.P. CBP officer tells her no way, as she had triggered the bar when leaving.

"But I have AP," she shouts. CBP officer responds: "listen, little Miss, I didn't give you nothin'. Now get the #### outa my face and sit down there without saying another word or you will wait in handcuffs for the next plane back to wherever you came from. Did I make myself clear now?"

[ceadsearc 516]

The key word is "may" in that statement. You MAY be admitted under advanced parole. You also MAY not. If your departure triggered the 3 or 10 year ban, you fall under the category of someone who may (almost certainly) not. There is a reason it is widely advised that someone who has overstayed long enough for a ban not even bother to file for AP. I would be shocked if you could find many (or any) cases of someone who has overstayed long enough for a 3 or 10 year ban being let back in on AP. You will, however, likely find plenty of cases of people who made that mistake and were NOT let back in.

Edited October 2, 2011 by ceadsearc