Reentry Permit vs. Early Parole for K1 holder studying outside US

[frodomaximuss 0]

Howdy!

 

Thanks so much for reading, any and all help is much appreciated!

 

My wife arrived on a K1 on 12/9/16. We married in the USA on 12/30/16. We received our marriage certificate today, and are preparing to file her AOS, along with i-131.

 

She is set to start her Master's Degree studies in Japan in July 2017. That program will last 2 years. 

 

Due to estimated processing timelines, its looking quite likely that we may need to leave the US before her green card is issued. I plan to travel to Japan and live with her there, and we both plan to return to the US afterwards (in 2019).

 

We are looking for the best way to maintain her legal status, so that it doesn't present complications for her returning to the US after her studies. It is my understanding that Advance Parole would be needed, however it appears that is intended for short trips. A re-entry permit seems more like what she'd need, but if I read the instructions correctly, those are only available for green card holders, correct?

 

Out of all of this background, a few questions:

 

1. Should I be applying for a reentry permit or advance parole in this situation (or both?!)?
2. If it happens to be both, can you apply for both at the same time when filing i-131 with AOS packet? Or would I be filing for advance parole, and then reentry permit from Japan?
3. If we are unable to retrieve the green card before she leaves, does anything worse happen other than our needing to complete a CR1 from Japan prior to our return? It is my current understanding that filing for AOS, even if we were to abandon it later, would be crucial to keeping her in a legal status (vs. if we did not file the AOS and allowed her K1 to lapse, for instance).
4. Bonus - what do you recommend putting for length of intended stay, on early parole application (as we're looking at upwards of 730 days here...)?

 

Again, thanks so much for your help!

 

Edited January 11, 2017 by frodomaximuss

[geowrian 22,335]

Hello!

 

I'm a but confused here. Why is she applying for a permanent residence card ("green card"), which takes the better part of a year or so to process and is expensive,  if her permanent residence will not be in the US?

 

• A reentry permit is only valid for up to 2 years. I don't think that timeline will work for you...?
• A reentry permit is only available to a LPR. Filing for AOS does not grant LPR status. Only upon AOS approval would LPR status be granted.
• AP is only valid for up to 1 year. It can be renewed, though, if AOS is still not complete. That said, I doubt they would approve an AP request when the individual has not been in the US.
• Even if your AOS is approved within a year, living abroad for for the majority of the year is grounds to have LPR status revoked.
• Leaving the US without a valid AP document is automatic abandonment of the AOS application.

Sorry I'm not providing an answer to do what you want to do here. I'll defer to others in case they have any ideas. However, step back for a second and think about what you're requesting. You're requesting permanent residence within the US, which requires living within the US as your primary residence...but don't want to live in the US yet.

 

You may be better served by abandoning the idea of filing for AOS at this time, then file for a CR-1/IR-1 visa when she is ready to actually live within the US. She can try to obtain a tourist visa while the I-130 processes so she can still visit you in the US. No guarantees as the CO or CBP may believe her immigrant intent puts her at risk of staying in the US, but many people here have done that successfully so it's worth a shot.

[geowrian 22,335]

It won't let me edit...

 

For bullet point #4, i wanted to add that the reentry permit addresses this (and can be sent to a foreign embassy), but I'm doubtful it would be issued to somebody living abroad for so long. Even if so, the CBP at POE can still deny entry even with the re-entry permit if they believe residence has been abandoned.

 

So...if you're a gambling man...I guess you could file AOS w/ AP now. Then use the AP document in July. Once AOS is approved, file for a reentry permit. Then when she's ready to return to the US, try to use that to enter. That said, there's a lot that can go wrong here. Just going with a CR-1 would be much simpler and much more likely to not have surprises when trying to re-enter the US.

[frodomaximuss 0]

Thanks Geowrian,

 

Thanks for your reply!

 

You are right on the money. Yes, our situation is pretty bonkers.

 

We started the K1 process around the same time she applied for a fellowship to get her Master's in Japan. It was a longshot, but she won the scholarship, so Tokyo here we come. Until that happened, we had every intention of making the US our permanent home (and still do...just two years from now).

 

You stated: 

 

Quote

You may be better served by abandoning the idea of filing for AOS at this time, then file for a CR-1/IR-1 visa when she is ready to actually live within the US. She can try to obtain a tourist visa while the I-130 processes so she can still visit you in the US. No guarantees as the CO or CBP may believe her immigrant intent puts her at risk of staying in the US, but many people here have done that successfully so it's worth a shot.

 

In our case, she is already in the US. She entered last month and we married here.

 

From what I can tell, letting her i-94 lapse without filing for AOS is a no-no. IE she will then have overstayed her visa and be here illegally. I'm pretty sure its a unique bureaucratic position we find ourselves in, that we must file for a GC, even while knowing we must likely abandon it.

 

We may indeed need to file the CR1 from Japan, I just want to make sure we're in the right up until when we leave. (additionally, filing the AOS provides the benefit of granting employment authorization in the meantime).

 

Thanks so much!

[frodomaximuss 0]

2 minutes ago, geowrian said:

So...if you're a gambling man...I guess you could file AOS w/ AP now. Then use the AP document in July. Once AOS is approved, file for a reentry permit. Then when she's ready to return to the US, try to use that to enter. That said, there's a lot that can go wrong here. Just going with a CR-1 would be much simpler and much more likely to not have surprises when trying to re-enter the US.

 

Yep that makes sense. It's possible that re reentry permit would allow for transit and visits to the US while she is studying.

 

If she can't pop in, that stinks.  Both due to missing the holidays, and because the price of a ticket from Japan to Colombia without a stopover in LAX is going to murder me many times over... 

[geowrian 22,335]

Just now, frodomaximuss said:

Thanks Geowrian,

 

Thanks for your reply!

 

You are right on the money. Yes, our situation is pretty bonkers.

 

We started the K1 process around the same time she applied for a fellowship to get her Master's in Japan. It was a longshot, but she won the scholarship, so Tokyo here we come. Until that happened, we had every intention of making the US our permanent home (and still do...just two years from now).

 

You stated: 

 

 

In our case, she is already in the US. She entered last month and we married here.

 

From what I can tell, letting her i-94 lapse without filing for AOS is a no-no. IE she will then have overstayed her visa and be here illegally. I'm pretty sure its a unique bureaucratic position we find ourselves in, that we must file for a GC, even while knowing we must likely abandon it.

 

We may indeed need to file the CR1 from Japan, I just want to make sure we're in the right up until when we leave. (additionally, filing the AOS provides the benefit of granting employment authorization in the meantime).

 

Thanks so much!

No problem!

 

It happens...plans change. And there is no requirement that you file for AOS with a K-1. K-1 is a dual-intent, non-immigration visa. It's technically permitted to enter on it just to marry without ever becoming a LPR. That doesn't mean she can (legally) stay past the 90 days, but it doesn't require filing for LPR status either.

 

Correct. She would be out of status past the I-94 stamp's expiration. Without filing for AOS, when she left the country, she could be imposed a temporary ban due to overstay. You may be right in that you may need to file for AOS so that you are covered until she leaves. That's...just a crappy situation, sorry. Normally, not filing for AOS for a short period of time can be acceptable as overstay is ignored for an IR during AOS, but if you never file AOS before she leaves the US, then the overstay can incur the ban. :9

 

Good idea. yes, you can cancel your AOS at any time, then file for a CR-1 when she's ready to live in the US permanently. Note that it takes 10-18 months for a CR-1, so you can gauge your timeline appropriately. But who knows the timeline 2 years form now. haha

[geowrian 22,335]

5 minutes ago, frodomaximuss said:

 

Yep that makes sense. It's possible that re reentry permit would allow for transit and visits to the US while she is studying.

 

If she can't pop in, that stinks.  Both due to missing the holidays, and because the price of a ticket from Japan to Colombia without a stopover in LAX is going to murder me many times over... 

Yup.

 

Yeah...ugh, I wish I had something else to help you out, but I'm coming up empty. I hear you on the tickets...PA (USA) -> Manilla tickets are robbing me blind. lol And I love visiting Japan, which doesn't help either.