Avance Parole - Am I worrying my wife needlessly?

[Yagisama 93]

Here is our data:

Date of Entry: June 11

I-94 expired : September 9

I-485 NOA : October 5

Number of Unlawful Presence days = 26

Now 26 is obviously less than the 180 days mentioned in the I-131 instructions so I proceeded with applying for Advance Parole. However, with immigration, nothing is certain so I'm having some cold feet regarding using the Advance Parole document.

CBP won't give me a clear answer, and I even made an infopass appointment which I'm not sure if it will be of any help since CBP has final say. I have also contemplated asking an immigration lawyer.So once again, I find myself making a post in visa journey regarding Advance Parole.

We have a plan to visit Japan for New Year, from Dec 26 to Jan 8. I bought the tickets last month with the expectation that Advance Parole would be granted Late November/Early December. The tickets are refundable so I can cancel them if needed.

Anyhow, I'm interested to see what the consensus here is.

I-131 instructions :

A. Travel Warning Regarding Unlawful Presence

Before you apply for an Advance Parole Document, read the following travel warning carefully:

1. If you have been unlawfully present in the United States for more than 180 days but less than 1 year, and you leave before proceedings are started against you, you may be inadmissible for 3 years from the date of departure.

5. Although advance parole may allow you to return to the United States, your departure may trigger the 3 year or 10-year bar, if you accrued more than 180 days of unlawful presence BEFORE the date you were considered to be in a period of authorized stay.

http://www.uscis.gov.../i-131instr.pdf

[VanessaTony 3,567]

i don't think you'll have a problem. However... if you DO have a problem it would suck.. depends whether you're willing to risk it.

[ceadsearc 516]

I agree with Vanessa&Tony. There is NO risk of triggering a bar. The risk of being denied re-entry with a 26-day overstay is likely very, very low but I imagine it COULD happen.

Here's what I would consider: worst case scenario, what would you do? If your wife was not admitted you'd she would have to return to her country, the AOS would be abandoned, and you'd be filing a CR-1 which would mean paying again and waiting 7-9 months. If you can deal with that on the off-chance you have an issue I'd go ahead. If not, maybe not.

[Diana and Chris 25]

Personally, I didn't even send an AP application. I'm a control freak and I'm playing it SUPER SAFE. I'll just wait that one or two months more 'till I get the Green Card to travel, hopefully no emergencies will pop-up during this time. -But that's just me-

[Darnell 8,478]

since CBP hasn't gotten you a clear answer -

I'll suggest to you that you've not really talked with the right person at CBP.

Get into a Secondary Inspection / Deferred Inspection office of CBP soonish, ask for the supervisor, and then ask yer question of him/her

Good Luck!

[A + M 29]

You should be fine. An overstay of 26 days should be considered "a grace period".

[maggieb 4]

From what i'm understanding is you have you've fulfilled your requirements, the 90 day limit of your I-94 to get married, once you marry your US spouse, and then you can apply for the AOS at your convienence. I've seen some people's posts in here that they've waited acouple of years until they could afford the AOS/EAD/AP side of the process. But you can't leave the states until you have the AP or your green card Please correct me if i'm wrong.

Here is our data:

Date of Entry: June 11

I-94 expired : September 9

I-485 NOA : October 5

Number of Unlawful Presence days = 26

Now 26 is obviously less than the 180 days mentioned in the I-131 instructions so I proceeded with applying for Advance Parole. However, with immigration, nothing is certain so I'm having some cold feet regarding using the Advance Parole document.

CBP won't give me a clear answer, and I even made an infopass appointment which I'm not sure if it will be of any help since CBP has final say. I have also contemplated asking an immigration lawyer.So once again, I find myself making a post in visa journey regarding Advance Parole.

We have a plan to visit Japan for New Year, from Dec 26 to Jan 8. I bought the tickets last month with the expectation that Advance Parole would be granted Late November/Early December. The tickets are refundable so I can cancel them if needed.

Anyhow, I'm interested to see what the consensus here is.

I-131 instructions :

http://www.uscis.gov.../i-131instr.pdf

[JimVaPhuong 4,863]

From what i'm understanding is you have you've fulfilled your requirements, the 90 day limit of your I-94 to get married, once you marry your US spouse, and then you can apply for the AOS at your convienence. I've seen some people's posts in here that they've waited acouple of years until they could afford the AOS/EAD/AP side of the process. But you can't leave the states until you have the AP or your green card Please correct me if i'm wrong.

K1's begin accumulating unlawful presence when their I-94 expires, regardless of when they got married. If they accumulate more than 180 days of unlawful presence then they'll incur a 3 year ban if they leave the US, even if they've already obtained an approved AP. Anyone who applies for adjustment of status more than 180 days after their I-94 expires shouldn't even bother applying for AP. The AP would be approved, but they'll still be banned if they leave the US, and the AP will be useless for getting them back into the US. This is described in the I-131 instructions.

[Yagisama 93]

Jim,

If you don't mind me asking, what are your thoughts regarding the risk level of our situation?

[bigdog 376]

High if you leave, we are in a similar boat waiting for GC for extended trip to China.

[JimVaPhuong 4,863]

Jim,

If you don't mind me asking, what are your thoughts regarding the risk level of our situation?

In my opinion, the risk of being denied entry is very small. Lots of people have left with a little overstay time and returned with advance parole, and they didn't have any problems. The risk of being scheduled for an AOS interview while you're gone is probably bigger.

[baron555 934]

Number of Unlawful Presence days = 26

You are totally confused. Since you married within the 90 days of the use of the K-1, there is NO time limit in which to file the AOS. There never is any unlawful presence....just out of status presence. That's it. You can wait over 180 days to file the AOS and nothing is wrong with that.

Now to leave the US AND be able to return, you do need the AP or the GC. I would NOT travel until one of those two thing are in hand. If you do, she will not be readmitted and will have to go back and you guys do a spousal visa all over again, with a slightly longer time period than the K-1. Your call.

K1's begin accumulating unlawful presence when their I-94 expires, regardless of when they got married. If they accumulate more than 180 days of unlawful presence then they'll incur a 3 year ban if they leave the US, even if they've already obtained an approved AP. Anyone who applies for adjustment of status more than 180 days after their I-94 expires shouldn't even bother applying for AP. The AP would be approved, but they'll still be banned if they leave the US, and the AP will be useless for getting them back into the US. This is described in the I-131 instructions.

I believe this is false information. If they have the AP, they can get back in. There is no unlawful presence as long as they married within the 90 days of the use of the K-1. They are in limbo or out of status, but not unlawful or illegal. These specific words are the wrong ones to use in this case.

[ceadsearc 516]

You can call it out of status, unlawful presence, whatever you want. Anyone without a current status can be detained by ICE, and 180 days of being out of status WILL trigger a 3-year ban if you leave the country. Being granted AP means nothing; everyone who applies is granted AP but it clearly states that if they are subject to a ban it will take effect if they leave regardless.

[VanessaTony 3,567]

I believe this is false information. If they have the AP, they can get back in. There is no unlawful presence as long as they married within the 90 days of the use of the K-1. They are in limbo or out of status, but not unlawful or illegal. These specific words are the wrong ones to use in this case.

Incorrect. Have a look at the I-131 instructions themselves. They state the rules about 180 days etc. They will still approve the AP, its up to you to decide to use it or not.

[Kathryn41 3,205]

Vanessa and Jim are correct. A K-1 is authorized to remain in the US for 90 days. To complete the condition of the K-1 that will allow them to apply for permission to remain in the US based on the K-1 visa entry being used to marry a US citizen, the beneficiary must marry within those 90 days. Marriage does not mean that they are now legally present within the US after the expiry of the I-94. It means that they are now allowed to apply for permission to remain in the US based upon fulfilling the requirements of the K-1 visa. Once the I-94 expires, whether the couple is married or not, the beneficiary starts to accumulate out of status days.

When the AOS is approved, the out of status days are forgiven, but until that time, if the beneficiary accumulates 180 days or more of unauthorized time in the US they are subject to a ban when they try to re-enter the US. The K-1 visa is only permission to enter the US, get married and apply to remain in the US, it is not permission to remain in the US because of marriage. That is a second step.

In this particular case, however, 26 days should not cause any problem at all. The I-131 instructions clearly point to the 180 out of status days. You have applied for the I-485, you have the I-131 in hand, so while the border guards have the authority to deny entry to anyone who is not a US citizen, there is no real reason for them to deny entry to your wife on return from a visit.

Good luck.

Vanessa and Jim are correct. A K-1 is authorized to remain in the US for 90 days. To complete the condition of the K-1 that will allow them to apply for permission to remain in the US based on the K-1 visa entry being used to marry a US citizen, the beneficiary must marry within those 90 days. Marriage does not mean that they are now legally present within the US after the expiry of the I-94. It means that they are now allowed to apply for permission to remain in the US based upon fulfilling the requirements of the K-1 visa. Once the I-94 expires, whether the couple is married or not, the beneficiary starts to accumulate out of status days.

When the AOS is approved, the out of status days are forgiven, but until that time, if the beneficiary accumulates 180 days or more of unauthorized time in the US they are subject to a ban when they try to re-enter the US. The K-1 visa is only permission to enter the US, get married and apply to remain in the US, it is not permission to remain in the US because of marriage. That is a second step.

In this particular case, however, 26 days should not cause any problem at all. The I-131 instructions clearly point to the 180 out of status days. You have applied for the I-485, you have the I-131 in hand, so while the border guards have the authority to deny entry to anyone who is not a US citizen, there is no real reason for them to deny entry to your wife on return from a visit in this situation.

Good luck.