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balonmano

AP travel in somewhat complex AOS

4 posts in this topic

Hello all,

Simply put, I am adjusting status through marriage to a USC, my I-485 and complete application has been received by USCIS. I have applied for advance parole and expect it to be granted, and I have plans to make use of it; however the lawyers I have hired have advised me against traveling with AP and have asked me to sign a waiver that puts their recommendation in writing. I have consulted with multiple friends who are also immigration lawyers, and have received polarized, conflicting opinions. I'm going to present a timeline of my case below in the hopes that somebody on this forum will be able to advise me.

Without further ado (some dates purposefully vague, some rough). Thanks in advance to all respondents:

6/29/2006 F-1 visa granted, attended university in US
   
5/15/2010 Graduated from university (BS engineering degree)
6/23/2010 Received EAD under F-1 OPT, started at employer 1
   
6/18/2011 New EAD for OPT 17 month STEM extension
july/2011 Started at employer 2 under new EAD
aug/2011 Began dating USC partner
april/2011 Employer 2 applied for H1B
   
12/7/2012 H1B visa granted in home country
   
7/10/2015 Employer 2 applied for H1B renewal (I-129)
   
2/26/2016 I-129 approved valid through 09/08/2018 
5/16/2016 H-1B Visa Renewal (expiry 09/08/2018) granted in home country
5/22/2016 Admitted to US in H-1B status, I-94 date 09/18/2018
7/1/2016 Proposed to USC partner, plan to wed before end of the year
11/14/2016 Employer 2 terminates me ----I am now out of status, and have not held a job since then
12/2016 Lawyer retained, advises me to proceed with marriage to USC and then apply for AOS
12/23/2016 Married USC partner as we had planned
   
2/3/2017 USCIS changes I-129 petition for H-1B to "revoked approval"
3/3/2017 AOS application ( I-485,  I-130,  I-131,  I-765) mailed in
3/10/2017 USCIS rejection notice, error on I-485
3/18/2017 Corrected AOS application mailed out
3/22/2017 Priority Date I-485, I-130
3/29/2017 USCIS notice date for I-131, I-765, I-485, I-130
  ...today…
4/28/2017 Scheduled date for biometrics appointment
9/25/2017 Date of planned travel as entered on I-131 application for AP
   
9/8/2018 Expiry date of H-1B visa stamp in passport
9/18/2018 Date written on I-94 stamp in passport
9/28/2018

Admit until date as shown on CBP I-94 website

 

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I would go by what your Lawyer says. Ask him why they are recommending that you avoid travel. It may be prudent to get the GC and then travel.

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Hello pontevecchio, thanks for answering.

The lawyers' position on this is a general one: Advance Parole does not entitle you to be paroled, you may still be found inadmissible, and if you do not have another means of entering the U.S. you may be subject to removal proceedings. Additionally, the Advance Parole may be revoked at any time for any reason, including while you are travelling

I certainly agree that not travelling with AP is the closest thing to a guarantee that I will see the AOS process through to the end. However I would like to know the technical reasons that CBP could use to deny me parole at the POE ("inadmissible" to be paroled, if that is the correct terminology to use).

If I understand the criteria correctly, since I have i) no criminal record in the U.S. or elsewhere, ii) not been employed since I was terminated from my H-1B job, iii) no relevant medical conditions, iv) spouse's income in excess of minimum requirements as support, the only significant criteria they could find against me would be v) the immigration violation of failing to depart after termination of H-1B employment and falling out of status while being present in the US. My impression is that adjusting based on marriage to a USC exempts an applicant from the out-of-status bar to adjustment as well as the various bans.

Now, as my lawyers say, if CBP is able to find me inadmissible due to my failure to maintain lawful status in spite of any waiver or exemption that enables my AOS application... or if CBP can simply arbitrarily find someone with AP inadmissible, "just because" (lawyers didn't specifically say this)... well, I'll sit down, shut up and consider my lesson learned!

Edited by balonmano

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The lunatics are ruling this asylum. Your lawyer maybe off base. You cannot ordinarily be prevented from entering based on AP in the absence of grounds of inadmissibility. But why would you take a chance? The fact that the spouse of an USC is forgiven many things is not law. If your reason to visit is not too emergent, wait for the Gc. You may also get a second opinion from the firm of Murthy should you choose.

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