Can I get advanced parole with i-130 pending?

[Charizard 0]

Hello VJ,

This is my first post.

My husband and I married last year in September, filed stand-alone i-130 may 2013.

We got our NOA1 and are still waiting for NOA2.

My husband has a has a rotten tooth that has been diagnosed, but not treated for nearly 2yrs.

We need to fly him home to japan where he can get his teeth treated..

Would we meet the AP criterium to file?

Or if there is ANY way to let him go home for a little bit during this process.

The processing time estimates are outrageous TTTTT

Not to mention he's extremely homesick, it's been nearly 5yrs since he has been home.. Which I'm sure many of you are suffering the same backlog pain.

THANK YOU

[Harpa Timsah 13,258]

Why on earth didn't you file a concurrent I-130/I-485 application?

No AP available for a stand alone I-130.

[Hypnos 6,576]

Is there a reason you haven't also filed an I-485?

[belinda63 3,039]

Has he been in status his entire time in the US? If so you can use the NOA-1 from the I-130 to file for AOS. When you file you can also request AP. If he has been out of status for more than 180 days you are advised to not use AP as he will have a ban from returning to the US.

Curious, why haven't you filed to adjust status yet?

[Jawaree 718]

You can go to your local hospital financial aid dept

get a quote and pay to deal with this matter, I think

its cheaper than going so far, the care is quality &

AP without any solid emergency is not easy

[Charizard 0]

Wow so many responses <3

He has been out of status, came in on an F1.

My income was not stable for a long time, so our lawyer advised us not to file concurrently in case ):

My income is fine now, is it too late to file I-485?

We are really looking for a way for him to go home temporarily.

[jaycali 415]

If he came on an F-1 visa with D/S stamped/written on his I-94, he has not been "accumulating unlawful presence", and no bar would be triggered.. Unless ordered removed by an immigration judge. This still does not mean it's a good idea to leave the country.. With or without AP. If he has been ordered removed, and has been accumulating unlawful presence enough for a bar (180 days) the CBP can still deny him re-entry on the basis of that bar. Even with an approved AP.

You really need to file the I-485 ASAP as no action will be taken on adjusting status until that is filed.

The I-130 in itself gives absolutely no immigration status. It's a form used to establish with the USCIS that you are married. That's it. It is used to seek permission for him to adjust status based on it. It doesn't actually do anything legally for him other than establishing eligibility to file. The I-130 is merely a basis to be able to file I-485. Without an I-485, no AP is relevant.

If he leaves the country now, for any reason, he will not be able to return until the I-130 is approved, and a CR-1 visa is approved at the embassy in Tokyo. You'd be looking at 6 months to a year, depending on when you filed and current processing times.

Edited November 2, 2013 by jaycali

[Charizard 0]

His status is terminated but his visa looks fine.

Is it ok to file I-485 before receiving NOA2?

I thought it was too late to file concurrent after already submitting I-130..

[jaycali 415]

His status is terminated but his visa looks fine.

Is it ok to file I-485 before receiving NOA2?

I thought it was too late to file concurrent after already submitting I-130..

The visa is a re-entry document only, and it becomes void with his status terminated. It cannot be used for re-entry unless he is currently enrolled in school with an endorsed I-20. F-1 visas just happen to be one of few visas that don't automatically begin to accumulate "unlawful presence" followed by a 3/10 year bar. So while he is currently "out of status" (bad), he is not "unlawfully present" (very bad), yet.

Again, do not leave the country. Even with an approved AP, I'd be very weary about leaving the country - AP is no guarantee of re-entry with an overstay on your record. In fact, because he has been out of status for so long, I would not risk leaving until your AOS (I-485) is approved, or at the very least, consulting with a lawyer before doing so.

As far as filing the I-485 now, I don't know. I'm not sure if you have to wait now until the I-130 is approved or not. Hopefully someone else will chime in on that.

I know it sucks.

Edited November 2, 2013 by jaycali

[jaycali 415]

Put it this way.. This is what an AP document says in a nut shell:

"I have no relevant visa to enter the country with. I do have a pending application to adjust status. Please let me into the country while I await my AOS."

What it does not say is:

"I have been out of status, overstayed or unlawfully present, please excuse my unlawful presence while I await my AOS."

That is at the discretion of the CBP at the Port of Entry (airport), and why I would at the very least consult with a lawyer before leaving, even with an approved AP document. Once AOS is approved, he is a permanent resident and can travel freely to and from without issue.

Edited November 2, 2013 by jaycali

[Charizard 0]

Put it this way.. This is what an AP document says in a nut shell:

"I have no relevant visa to enter the country with. I do have a pending application to adjust status. Please let me into the country while I await my AOS."

What it does not say is:

"I have been out of status, overstayed or unlawfully present, please excuse my unlawful presence while I await my AOS."

That is at the discretion of the CBP at the Port of Entry (airport), and why I would at the very least consult with a lawyer before leaving, even with an approved AP document. Once AOS is approved, he is a permanent resident and can travel freely to and from without issue.

Thank you for your detailed responses,

Damnit... Guess I was just hoping we could find a way home before AOS is approved.

His mental state is pretty unstable with how the gov't keeps pushing back the processing times.

Mine as well for that matter haha.

[jaycali 415]

Thank you for your detailed responses,

Damnit... Guess I was just hoping we could find a way home before AOS is approved.

His mental state is pretty unstable with how the gov't keeps pushing back the processing times.

Mine as well for that matter haha.

I've been there, we all have to various extents. This process is a patience test, and one's ability to deal with and understand the bureaucratic process surrounding immigration is a deal breaker. In the end, it's all happily ever after though. Best wishes and welcome to VJ! Edited November 3, 2013 by jaycali

[Charizard 0]

If he came on an F-1 visa with D/S stamped/written on his I-94, he has not been "accumulating unlawful presence", and no bar would be triggered.. Unless ordered removed by an immigration judge. This still does not mean it's a good idea to leave the country.. With or without AP. If he has been ordered removed, and has been accumulating unlawful presence enough for a bar (180 days) the CBP can still deny him re-entry on the basis of that bar. Even with an approved AP.

You really need to file the I-485 ASAP as no action will be taken on adjusting status until that is filed.

The I-130 in itself gives absolutely no immigration status. It's a form used to establish with the USCIS that you are married. That's it. It is used to seek permission for him to adjust status based on it. It doesn't actually do anything legally for him other than establishing eligibility to file. The I-130 is merely a basis to be able to file I-485. Without an I-485, no AP is relevant.

If he leaves the country now, for any reason, he will not be able to return until the I-130 is approved, and a CR-1 visa is approved at the embassy in Tokyo. You'd be looking at 6 months to a year, depending on when you filed and current processing times.

Correct me if I'm wrong, but are you saying it's possible for him to wait home in Tokyo while our docs are processing?

We would prefer to separate if he can return when all the processing for I-130 and CR-1 is done.

Edited November 3, 2013 by Charizard

[Jawaree 718]

Is the marriage bonifide?, if he give up & depart for missing his

family and a rotten tooth , that's exactly what the CO at his

embassy would query.There R many ppl living with kids awaiting

he slow process too & would just love to wait while together with

spouse.AP is for major emergency as it can be a roll of the dice.

when one tries to POE

[milimelo 4,502]

OP - you're a USC? If yes, have husband file I-485 and you prepare I-864 (get tax transcripts from IRS - they're free, letter from the job and if current income low, get a joint-sponsor. You'll also need a copy of your birth certificate or passport copy to prove you're a USC sponsor). He'll also need to have a medical exam done by a civil surgeon.

Regarding the rotten tooth - look up dental schools in your area - students have free or low cost clinics and are supervised by experienced instructors and can help your husband out by fixing the problem.

Edited to add: do not let your husband leave country without his green card in hand. AP does nothing for people who have overstayed. I'd only apply for EAD, not AP.

Edited November 3, 2013 by milimelo