Re-enter US using advance parole

[nica25 0]

My wife will be traveling with I-512 Advance Parole and we have a couple of questions and concerns.

My wife arrived on a K-1 visa. Adjustment of status was filed after her I-94 expired (40 days out of status). Adjustment of status is now pending.

Does her out of status time present any problems when she reenters using Advance Parole?

Also, my wife has had 2 failed fingerprints which were taken at U.S. Citizenship and Immigration Services. Police clearances were requested at her interview and they have have been submitted.

Is it safe for my wife to travel using advance parole?

Thank you in advance.

[Harpa Timsah 13,258]

Safe to travel, no problems.

I guess if it was denied while she was out of the country, that would be not good. You had your interview already? How did it go?

Edited July 25, 2014 by Harpa Timsah

[Ian H. 207]

I personally don't trust advance parole. They do make it clear on the application that it does not guarantee reentry. You should ask a lawyer if you are really unsure because you wouldn't want to be denied entry on a technicality.

[KayDeeCee 4,892]

If you personally do not trust it, then you personally do not have to use it. Plenty of other people have used AP just fine without issues. As Harpa stated already, if their AOS was not denied, it is safe for them to use the AP they were granted.

[Ian H. 207]

I was simply stating my opinion on the AP, if the OP feels that they should use it that is up to them as I was just stating my opinion. Personally I wouldn't use it if I knew that was out of status for any amount of time, again that's my opinion. No one on here can guarantee that it is "safe" for them to travel on AP anyway. I just mentioned what the AP instructions say regarding reentry not being guaranteed. As for the AOS it is still pending, neither denied nor approved, so I don't see what that has to do with anything.

If you personally do not trust it, then you personally do not have to use it. Plenty of other people have used AP just fine without issues. As Harpa stated already, if their AOS was not denied, it is safe for them to use the AP they were granted.

[KayDeeCee 4,892]

There is never a guarantee of entry to the US, not even with the green card. You only have the right to enter if you are US citizen.

It doesn't matter if they were out of status for one day, 40 days, or 200 days.

9 FAM 40.92 N2.2 INA 212(a)(9)(B)(i)(II) Departure At Any Time

The 10-year bar under INA 212(a)(9)(B)(i)(II) does not contain the same language as the three-year bar under INA 212(a)(9)(i)(I) relating to the alien having departed voluntarily prior to commencement of removal proceedings. Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and whether the alien departed on his or her own initiative or under removal order. The one exception to this rule (see also INA 212(a((9)(B)(v)) is that an alien cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the alien’s pending application for adjustment of status. Note that this does not preclude a trip under a grant of advance parole from being considered a “departure” for any other purposes under the INA, nor does it call into question the applicability of any other inadmissibility ground. On the contrary, it is well settled that an alien who leaves the United States and returns under a grant of advance parole is subject to those grounds of inadmissibility that may apply, rather than grounds of deportability, once parole is terminated. (See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012.)

Matter of Arrabally and Yerrabelly.

[subwayguy 100]

I personally don't trust advance parole. They do make it clear on the application that it does not guarantee reentry. You should ask a lawyer if you are really unsure because you wouldn't want to be denied entry on a technicality.

I spoke to a top lawyer and she said it is safe to travel even if ones out of status for ten years .

I also found one moderator very rude . The guy was just giving his opinion . Being nice doesn't cost a penny

Edited July 25, 2014 by subwayguy

[KayDeeCee 4,892]

I spoke to a top lawyer and she said it is safe to travel even if ones out of status for ten years .

I also found one moderator very rude . The guy was just giving his opinion . Being nice doesn't cost a penny

No mods have posted in this thread. And posting facts is not 'very rude', but if you disagree, you are free to hit the report button on any post and state your case.

[rshree 16]

@nica25: How & when did you come to know about failed fingerprints? only at the interview?? Hope not!

B'se I am waiting for AoS interview date for almost 25 days from my case status got updated to "testing & interview" & 42 days since biometrics (completed on 12-June-2014). This waiting had made me very anxious. Anything & everything I read scares me!

[Ian H. 207]

Except that no one, especially not me, said anything about being subject to any 10 year, 3 year or whatever bar. As I said before I simply stated my opinion that I wouldn't do it, so there are no facts to argue about because no facts were given other than what you can find in the instructions of the AP. I neither told the OP they would be safe nor that they wouldn't be safe, so I didn't mislead them or give them any wrong information other than my opinion.

There is never a guarantee of entry to the US, not even with the green card. You only have the right to enter if you are US citizen.

It doesn't matter if they were out of status for one day, 40 days, or 200 days.

9 FAM 40.92 N2.2 INA 212(a)(9)(B)(i)(II) Departure At Any Time

The 10-year bar under INA 212(a)(9)(B)(i)(II) does not contain the same language as the three-year bar under INA 212(a)(9)(i)(I) relating to the alien having departed voluntarily prior to commencement of removal proceedings. Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and whether the alien departed on his or her own initiative or under removal order. The one exception to this rule (see also INA 212(a((9)(B)(v)) is that an alien cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the alien’s pending application for adjustment of status. Note that this does not preclude a trip under a grant of advance parole from being considered a “departure” for any other purposes under the INA, nor does it call into question the applicability of any other inadmissibility ground. On the contrary, it is well settled that an alien who leaves the United States and returns under a grant of advance parole is subject to those grounds of inadmissibility that may apply, rather than grounds of deportability, once parole is terminated. (See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012.)

Matter of Arrabally and Yerrabelly.

[kitthekat 1,317]

Except that no one, especially not me, said anything about being subject to any 10 year, 3 year or whatever bar. As I said before I simply stated my opinion that I wouldn't do it, so there are no facts to argue about because no facts were given other than what you can find in the instructions of the AP. I neither told the OP they would be safe nor that they wouldn't be safe, so I didn't mislead them or give them any wrong information other than my opinion.

although you may have had good intentions in wanting to help, sometimes posting your opinion when the OP is looking for factual answers, can create fear and confusion. how about next time just saying "cool, thanks for the correction, even if i personally won't be trying it" instead of coming back with a defensive response? otherwise, it just comes across as if you are trying to discourage the OP from traveling, despite there being no real cause for them to worry about doing so.

[Ian H. 207]

If I came back with a "defensive" response is because the same people have been bashing on my posts all day. I'm not like the other ones around here who judge people or make them feel worse when they land in hot water, like the other post of the couple who let their K1 expire. I am allowed to state my opinion on the matter or a fact as long as it's not insulting or judgmental to the OP. He can decide whether or not to consider it, however I wasn't suggesting he consider it either. Also, I did tell the OP to consult a lawyer since he was uneasy about the situation. Only an expert advice should make any person in this situation feel better. If he does and they can assure him they won't have any issues that's great, but if for some reason they would, at least they would know beforehand.

although you may have had good intentions in wanting to help, sometimes posting your opinion when the OP is looking for factual answers, can create fear and confusion. how about next time just saying "cool, thanks for the correction, even if i personally won't be trying it" instead of coming back with a defensive response? otherwise, it just comes across as if you are trying to discourage the OP from traveling, despite there being no real cause for them to worry about doing so.

[TBoneTX 43,184]

One post in the thread has been removed for being nonresponsive.

1. If I came back with a "defensive" response is because the same people have been bashing on my posts all day.

2. [...] like the other post of the couple who let their K1 expire.

3. I am allowed to state my opinion on the matter or a fact as long as it's not insulting or judgmental to the OP.

1. Over and over, some new members persist in posting misinformation and partial truths in a dangerously cavalier posting style when they don't know what they don't know. A typically appropriate "defensive response" is to read, study the Guides, read more, and contribute on the basis of actual fact, with care taken so that nothing can be misinterpreted. The experienced members of this forum typically know what they're talking about. It's therefore wise to heed their input and learn from it, before barreling in with unwashed advice. There is very good reason that experienced forum members have been correcting your posts.

2. Importing drama from another thread risks administrative action.

3. You're allowed to state your opinions, and others are allowed to correct serial misinformation perpetuated through many posts in various forums. The need to correct misinformation would be far less if some new members took more time to learn and study from reasoned answers posted by experienced members.

Edited July 25, 2014 by TBoneTX

[kitthekat 1,317]

1. I am allowed to state my opinion on the matter or a fact as long as it's not insulting or judgmental to the OP.

2. Also, I did tell the OP to consult a lawyer since he was uneasy about the situation. Only an expert advice should make any person in this situation feel better. If he does and they can assure him they won't have any issues that's great, but if for some reason they would, at least they would know beforehand.

1. actually, there is a term for posting opinions that may raise alarm unnecessarily - it is "fear mongering" and i did not use it earlier because it sounded a little harsh, and i am sure that that was not your intention. just a friendly suggestion, since your goal is to help others, instead of demanding your right to express your opinion, why not read up a bit more, gain some awareness of how your opinion could affect the OP, and be more open to corrections from others who have been posting and studying immigration issues for much longer?

2. just to add, a lawyer would not be able to guarantee the OP's re-entry either. it is kind of a non-answer, since most people come here to take advantage of the DIY knowledge and advice available - if indeed a lawyer is necessary, people here would be the first to say so. in this situation, i don't really think consulting a lawyer is necessary, nor would it give the OP any new information that has not been mentioned here by harpa and kaydeecee already. (btw, i do consider harpa and kay experts given the amount of studying and research they both have done into immigration issues).

3. TboneTX made excellent points

[KayDeeCee 4,892]

Except that no one, especially not me, said anything about being subject to any 10 year, 3 year or whatever bar. As I said before I simply stated my opinion that I wouldn't do it, so there are no facts to argue about because no facts were given other than what you can find in the instructions of the AP. I neither told the OP they would be safe nor that they wouldn't be safe, so I didn't mislead them or give them any wrong information other than my opinion.

Your opinion stated you would not use it if out of status for any amount of time. What other reason, other than the possibility of triggering a ban for overstay when leaving, would there be for not wanting to use AP if you had been out of status? Not an opinion or what you assume or believe may happen. An actual reason.

I posted information about why it is safe for an adjustment applicant to use the AP that was granted to them, even if they had overstay. No one ever stated re-entry was an absolute guarantee, and I pointed out there is no guaranteed entry with a green card either.

Also, if you look back, at first I did address your personal feelings on the matter by stating that if you personally did not want to use it, then don't. I would find it just as odd for someone to post that they would personally not use a K-1 visa to enter the US, even when they are in no position to ever need to use such a visa, because there is no guarantee of entry with a K-1 visa. Trying to scare other people away from using it based on your opinion is not helpful. People that have shared their experiences, good or bad, after actually using AP are helpful. Those type of posts can already be found here on VJ.

You have posted misinformation around VJ. You like to argue against the actual instructions and immigration laws in favor of how you think/believe/assume it should work. Misinformation, even if deemed 'simply an opinion', is still misinformation. It confuses the issue and hurts people looking for actual, straightforward answers to their questions. Bickering back and forth with your opinions/beliefs against the facts causes those correct, needed answers to get lost in the bogged down thread due to people trying to get the correct information out there. If you post misinformation, someone is bound to come along and correct it. It is not bashing you.