Left country without advanced parole, now trying to return on emergency tourist visa

[tkyang99 7]

So we did a very dumb thing and basically my wife started her I-485 adjustment of status but left the country without first receiving the AP document. Now she is stuck in China and one lawyer suggested to us that we can try to get an emergency visa appointment at the consulate and perhaps she can come back on a tourist visa.

 

Just wondering if anyone had any knowledge/experience of getting an emergency visa under these circumstances? BTW our son is here in the US while she is stuck in China, will this help her at all getting a visa for humanitarian reason?

Edited February 27, 2021 by tkyang99

[Letspaintcookies 2,310]

But a tourist visa even if it was issued emergency wise for whatever reason does not allow her to stay and adjust status. You have to start over with a spousal visa and do the consular processing in her home country.

[HRQX 4,145]

17 minutes ago, tkyang99 said:

So we did a very dumb thing and basically my wife started her I-485 adjustment of status but left the country without first receiving the AP document.

In a different thread you said that I-131 was actually approved in November but didn't receive the I-512 document. Did she leave the US after or before the approval of the I-131? If she left after I-131 approval then you should still pursue AP issuance with the correct dates.

 

What technically matters is the day that I-131 was approved. https://americanepali.wordpress.com/2011/09/16/the-ups-and-downs-of-uscis/ "Since P has been officially approved for advanced parole he can leave the country without incident, but he will not be able to re-enter unless he has his advanced parole document in hand." https://americanepali.wordpress.com/2011/10/28/uscis-round-6-green-card-file-apparently-misplaced/ "I actually expected a big hassle at the airport when he went through the customs and immigration line on 10/20, but he breezed through with no issues."

Edited February 27, 2021 by HRQX

[HRQX 4,145]

28 minutes ago, Letspaintcookies said:

You have to start over with a spousal visa and do the consular processing in her home country.

Instead of IR-1/CR-1, she could return and complete AOS if the I-512 is reissued (*only if she left after I-131 was approved). See 8 CFR § 245.2(a)(4)(ii)(B).

Edited February 27, 2021 by HRQX

[Letspaintcookies 2,310]

14 minutes ago, HRQX said:

Instead of IR-1/CR-1, she could return and complete AOS if the I-512 is reissued (*only if she left after I-131 was approved). See 8 CFR § 245.2(a)(4)(ii)(B).

Sure if that's the case. I didn't tracked down other posts to find out if there's more that the OP didn't mentioned in this post.

[Ontarkie 14,275]

~~Moved to WOrking and Traveling from Tourist Visas~~

[tkyang99 7]

1 hour ago, HRQX said:

In a different thread you said that I-131 was actually approved in November but didn't receive the I-512 document. Did she leave the US after or before the approval of the I-131? If she left after I-131 approval then you should still pursue AP issuance with the correct dates.

 

What technically matters is the day that I-131 was approved. https://americanepali.wordpress.com/2011/09/16/the-ups-and-downs-of-uscis/ "Since P has been officially approved for advanced parole he can leave the country without incident, but he will not be able to re-enter unless he has his advanced parole document in hand." https://americanepali.wordpress.com/2011/10/28/uscis-round-6-green-card-file-apparently-misplaced/ "I actually expected a big hassle at the airport when he went through the customs and immigration line on 10/20, but he breezed through with no issues."

 

Thank you very much for the response. She actually departed before the I-131 was approved, but the I-131 was still approved a month later, which confused me. Is it because of this? https://resources.envoyglobal.com/blog/uscis-updates-practice-of-denying-pending-forms-i-131-for-abandonment-due-to-international-travel

 

This is all really confusing and I have not been able to get any sort of straight answer from USCIS. As for now both her I-485 and I-131 case statuses online doesn't show that they have been rejected or abandoned. At this point we just feel there is very little hope of receiving the AP document, and even if we did, it probably won't be valid. That's why we are trying to figure out other alternatives if any are still open to her.

 

[Boiler 45,658]

Only 2 posts and not sure what is going on.

 

Have you filed a petition for to immigrate and she is looking to visit in the meantime?

[Timona 4,207]

6 minutes ago, Boiler said:

Only 2 posts and not sure what is going on.

 

Have you filed a petition for to immigrate and she is looking to visit in the meantime?

 

OP filed AOS for wife but she left before approval of AP. How can come back?

 

That's his question 

[Boiler 45,658]

10 minutes ago, tkyang99 said:

 

Thank you very much for the response. She actually departed before the I-131 was approved, but the I-131 was still approved a month later, which confused me. Is it because of this? https://resources.envoyglobal.com/blog/uscis-updates-practice-of-denying-pending-forms-i-131-for-abandonment-due-to-international-travel

 

This is all really confusing and I have not been able to get any sort of straight answer from USCIS. As for now both her I-485 and I-131 case statuses online doesn't show that they have been rejected or abandoned. At this point we just feel there is very little hope of receiving the AP document, and even if we did, it probably won't be valid. That's why we are trying to figure out other alternatives if any are still open to her.

 

She applied for it, they processed it, unless you told them that she had abandoned AoS they are not going to know.

 

To immigrate likely she only has one option CR1/IR1. basically instead of adjusting in country she will interview at her local Consulate and enter with an immigrant visa.

 

 

[Lemonslice 4,886]

1 hour ago, tkyang99 said:

So we did a very dumb thing and basically my wife started her I-485 adjustment of status but left the country without first receiving the AP document. Now she is stuck in China and one lawyer suggested to us that we can try to get an emergency visa appointment at the consulate and perhaps she can come back on a tourist visa.

 

Just wondering if anyone had any knowledge/experience of getting an emergency visa under these circumstances? BTW our son is here in the US while she is stuck in China, will this help her at all getting a visa for humanitarian reason?

I think you already know there's no magic solution to the situation you created. 

 

She can try to come get a tourist visa to visit for a couple of months while her spousal visa is in process. Might be more convincing if you already filed the petition for her spousal visa.  Otherwise, it screams possible adjustment of status after entry.

 

If not, could you travel to her with your son?

 

Best of luck to you and your family.

Edited February 27, 2021 by Lemonslice

[Mike E 11,740]

nvm

 

AP approved after she left.  
 

Time for a CR1 visa.  

Edited February 27, 2021 by Mike E

[milimelo 4,500]

You’ll now need to file I-30 (if she was K-1 doing AOS) or I-824 (if she was on work, student, or tourist visa doing AOS) - no timeline - please complete it - and she’ll interview in China. 

[retheem 566]

Yeah, it was dumb. That one i can tell you. Just do CR1.

[HRQX 4,145]

1 hour ago, tkyang99 said:

but the I-131 was still approved a month later, which confused me. Is it because of this? https://resources.envoyglobal.com/blog/uscis-updates-practice-of-denying-pending-forms-i-131-for-abandonment-due-to-international-travel

That was after AILA and other groups complained that USCIS was doing blanket denials of pending I-131 after applicants left the US, thus also denying the I-131 for AOS from H-1B, L-1, etc. applicants. https://www.aila.org/advo-media/aila-practice-pointers-and-alerts/practice-alert-uscis-denying-pending-forms-i-131

 

http://myattorneyusa.com/immigration-blog/aila-reports-uscis-denying-form-i-131-advance-parole-applications-when-applicant

Members of AILA have reported that the United States Citizenship and Immigration Services (USCIS) has been denying Form I-131, Application for Travel Document applications for advance parole for applicants who traveled abroad while their applications were pending. The Forms I-131 are even being denied for abandonment even in circumstances where:

• The applicant has a separate valid advance parole document; or
• The applicant has a valid H, K, L, or V visa to return to the United States.

AILA explains that the denial notification letters refer applicants to page 6 of the Form I-131 instructions, which state that departure with a pending Form I-131 will result in the advance parole application being considered abandoned.

1 hour ago, tkyang99 said:

and even if we did, it probably won't be valid.

That is correct. Even if it's issued, the I-485 was abandoned per 8 CFR § 245.2(a)(4)(ii)(A).

Edited February 28, 2021 by HRQX