adjustment from VWP and overstay?

[Anderall 0]

Hello all!

My wife and I married spur off the moment while she was visiting on the VWP. I am curious as to what will happen with AP and if she leaves when she tries to enter again will she have a ban?

Facts -

- Married in June

- Sending AOS next week pending some documents being sent from her home country.

- Wife out of status as of July the 9th.

- Wife wants to visit her home country in late December for Christmas.

- Wife will have been out of status since July 9 to December 15 AND then out of the country.from December 15-28.

Will she have any problems with getting back into the US if she has AP? She will potentially be out of status for nearly 6 months while AOS is pending.

Thank you all for your help!

Edited August 2, 2012 by Anderall

[Boiler 43,721]

Sounds like she will not have a ban but best not to risk it until she has GC to hand.

[Anderall 0]

Sounds like she will not have a ban but best not to risk it until she has GC to hand.

Could you explain why she probably wont or why she may (please excuse my ignorance). Her family has already purchased her ticket to return and she really wants to spend Christmas in her home country.

I don't think she will have her GC by December. Is that likely?

Edited August 2, 2012 by Anderall

[Moomin 292]

Some of these cases, AOS from tourist visas, aren't always taking forever. Depends on the local office, if it's backlogged or not. You'll definitely have an interview though.

Even with AP, your wife may be refused entry since she has overstayed her visa/VWP and it's up to the CBP officer whether or not to let her enter the US because she has an overstay. Better bring AP and NOAs with her when traveling. In very few cases, if AOS is denied while out of US, the AP becomes void and because of overstaying, she can't return to the US.

HOWEVER, submit your AOS while all supporting form, AP and EAD ASAP and hopefully you'll have AP in hand in 90 days or less. I would like to add that some people do not receive AP/EAD before their interview.

Am not trying to scare you but to have you understand that AOS from inside US may have its ups and downs with a pending AOS. I'm only mentioning the worst case scenario because you ask why it may or may not be a good idea to leave during AOS, even with AP in hand.

Edited August 2, 2012 by moomin

[Anderall 0]

Does your overstay stop accruing once you file for AOS?

Is it really such a big risk leaving with AP?

I tried to look on the USCIS website for i485 processing times but it did not have the option for adjusting from a tourist visa so I couldn't get processing times. Can I call to enquire about processing times?

Should we wait and see and the cancel the ticket if we do not have the GC?

Is it really such a big risk leaving with AP?

[Moomin 292]

No and yes - you're in a new period of authorized stay with a pending AOS - that's why it's possible to have AP/EAD approved.

Somewhat, every case is unique and while some have absolutely no issues entering the US, there are a few who have problems.

Well, you have to find your local office and see processing times for "Application to Register Permanent Residence or to Adjust Status" - here; https://egov.uscis.gov/cris/processTimesDisplayInit.do

Might be just as good to upgrade to a flex(can't recall the correct name) where you can alter the departure/return date. Sometimes, the airline company is more willing to upgrade rather than refund.

Does your overstay stop accruing once you file for AOS?

Is it really such a big risk leaving with AP?

I tried to look on the USCIS website for i485 processing times but it did not have the option for adjusting from a tourist visa so I couldn't get processing times. Can I call to enquire about processing times?

Should we wait and see and the cancel the ticket if we do not have the GC?

Is it really such a big risk leaving with AP?

[Anderall 0]

Thanks we will look at the ticket. It would be such a shame if she misses seeing her family.

Our centre appears to have a 4 month i485 processing time so maybe we will get lucky and have the i485 approved by the time she is to leave, but I doubt it.

[Harpa Timsah 13,258]

This is all paranoia. Your wife will be out of status from July 9 until the point the AOS is accepted for initial review. It sounds about one month overstay if you send in your AOS next week. A ban only kicks in at 180 days. She can travel with AP for Christmas.

I have never seen a problem with anyone on this board having problems returning on AP. In fact, I have seen the opposite, people that should have a ban or who have no status who are allowed back in. If the person had 5 months overstay I would say stay home, but one month is not something to worry about.

Edited August 2, 2012 by Harpa Timsah

[DandT14 272]

Thanks we will look at the ticket. It would be such a shame if she misses seeing her family.

Our centre appears to have a 4 month i485 processing time so maybe we will get lucky and have the i485 approved by the time she is to leave, but I doubt it.

Late December is more than 4 months away. You might be cutting it close, but more than likely you'll be done by then. My local office says it has a 4 month processing time too, but I'm going to the interview today, 2.5 months after first filing.

Don't stress. But don't delay turning in your paperwork ASAP either.

[Anderall 0]

This is all paranoia. Your wife will be out of status from July 9 until the point the AOS is accepted for initial review. It sounds about one month overstay if you send in your AOS next week. A ban only kicks in at 180 days. She can travel with AP for Christmas.

I have never seen a problem with anyone on this board having problems returning on AP. In fact, I have seen the opposite, people that should have a ban or who have no status who are allowed back in. If the person had 5 months overstay I would say stay home, but one month is not something to worry about.

Now we are quite confused.

People say we will have 4 months of overstay.

Others say we will have 1 month.

Some say don't risk it.

Some say it's just paranoia and she will be fine...

Now I am sure everyone has good and valid points, I just wish we knew which was " more right" so we could have a game plan!

BTW: thank you so far everyone for your replies.

[Boiler 43,721]

You do not want to miss the interview. I have seen people try and reschedule, nightmare.

[Harpa Timsah 13,258]

Now we are quite confused.

People say we will have 4 months of overstay.

Others say we will have 1 month.

Some say don't risk it.

Some say it's just paranoia and she will be fine...

Now I am sure everyone has good and valid points, I just wish we knew which was " more right" so we could have a game plan!

BTW: thank you so far everyone for your replies.

Once her 90 days from VWP expires, she begins to accumulate overstay.

Once her AOS package is accepted for initial review, the overstay clock will stop and she will begin a new period of authorized stay.

From the dates you posted above (expire July 9 and plan to send in AOS next week) I count around a month of overstay.

A ban kicks in at 180 days of overstay. (Actually, there was a recent decision that the ban will not be in effect when using AP, but it is new, so I am going off of the "old" advice" to keep it simple.)

So one month of overstay is not 180 days of overstay.

She can use AP. The whole point of it is to travel while AOS is pending. I am against paranoia, so advising to not use something for its intended purpose makes no sense to me.

Don't miss the interview. You will get one month notice about it.

I could link you to various information from USCIS to prove I am right, but I don't care THAT much to take the time to do it You can assume the people who think you will have 4 months of overstay have no clue and you shouldn't listen to their advice. You are free to do what you wish.

Edited August 2, 2012 by Harpa Timsah

[asdfg 18]

Here is the direct link to the BIA decision on matter of Manohar Rao ARRABALLY in RE; use of AP while out of status -->>> http://www.justice.gov/eoir/vll/intdec/vol25/3748.pdf

In it BIA held that if AP is issued the person who traveled with it is not considered to have "departed" the US and thus not subject to inadmissibility specifically under 212(a)(9)(B))i)(II).

It's published on official government website (www.justice.gov/eoir) and sure carries a legal weight.

But, it's probably not codified in CFR yet (not sure, just guessing) and it's hard to predict what position will CBP, Courts and USCIS take on any other case that may be similar but in some way different from matter of ARRABALLY (different enough for any agency to take a position that it doesn't apply to it).

Since you will be less than 180 days out of status by the time you travel it may be argued that you shouldn't be worried at all.

However, as VWP beneficiary who applied for AOS you may have a ground of inadmissibility other than overstaying your visa , which I have no idea about because I am not very familiar with VWP and how it affects inadmissibility of overstayed and applied for AOS.

May be others here have more knowledge and expertise to advise you, but the safest route most immigrants take is

"do not travel unless you have your GC in hand".

Paranoid? Perhaps, but who wouldn't be when considering the immense complexity of regulations that you would need to spend years in school to fully comprehend.

Edited August 2, 2012 by asdfg

[Little_My 464]

I agree with Harpa. I didn't have overstay, but did travel with my AP actually more than once, and had no problems. I really do not believe that one month of overstay will cause any issues whatsoever - and it most certainly is not long enough to result in a ban.

Anderall - as Harpa said, the overstay clock stops when your AOS paperwork is received and accepted by USCIS. Your wife will not have 4 months of overstay, if you file soonish - she will have a month, roughly. Entrance to the US is never guaranteed to anyone who is not an American citizen, and AP does not guarantee re-entry, but I also have never read about anyone who would have been denied re-entry when using AP for traveling with a pending AOS.

[Xanax 349]

I asked a similar question to this a little while ago and didn't get much of a response. I am still concerned and still not 100% sure what we will do