staygold

Afternoon/Evening all,

A question, I married my wife (USC) back at the end of July whilst on the VWP. I have now overstayed the VWP and have filled in the forms for Adjustment of Status, had my medical, etc etc. Question is, can I leave the US whilst this is being processed? If I do, what would be the minimum period I would have to leave for, before being let back into the US?

Cheers

Rete

After filing you cannot leave the US without abandoning your filing unless you are in possession of a valid advance parole document from USCIS.

Whether or not can use the A/P depends on how long in overstay you were. 180 days and you are SOL and are barred from return to the US for a minimum of 3 years.

Bob

I wouldn't leave, if you do without AP you'd be abandoning your petition....even with AP, it would depend on the length of the overstay, but it's safer not to leave until you have your greencard in hand.

meauxna

What is a Travel Document and Who Needs One?
If you are not a U.S. citizen, you may need permission to return to the United States after traveling abroad. This permission is granted through a travel document.

http://www.uscis.gov/files/form/I-131instr.pdf

Travel Warning
Before you apply for an advance parole document,read this travel warning carefully.
(see instructions)


If you leave the US after filing for AOS but without a travel document, your AOS application will be considered abandoned and you may not be able to return to the US. If you have accumulated enough time out of status to incur a ban, Advance Parole will not over ride that and you may not be allowed back into the US.

The safest course of action is to stay in the US until your Permanent Residency is granted.

staygold

that's pretty much what I'd been told, thanks for qualifying that for me guys. Much appreciated.

meauxna

What did your attorney tell you? (just read back)

Did you apply for I-131 with your AOS filing?

Rete

Oh Wow!!!

We passed the test !!!!!!!!!!!!!!!

Gold Stars to all posters!!!!!!!!!

Folinskyinla

Hi Rete:

I agree with your post -- don't use the advance parole if the overstay was more than 180 days.

A subtle point -- use of advance parole usually puts one in a worse legal position if things go south for some reason. However, when a VWP person applies for adjustment, a subsequent return on advance parole actually improves the legal position.

Carla Freeman in Oregon would have ultimately won her case if she had used an advance parole before her husband was killed. Don't get me started regarding that case -- POO has some pretty mean bastards in their CIS/ICE offices IMHO.

meauxna

hi MrF, I guess you've been keeping an eye on that case too.
I wish I could find out more of what is behind their thinking.. the DD here is very nice, but very professional.
I think their new argument about her original entry is interesting too.

This is the way the local paper interpreted it for us (yeah yeah, I know ):

http://blog.oregonlive.com/oregonian...a_freeman.html
(the blog page is down right now but the cached version is here: http://tinyurl.com/34q8tb)

Posted by The Oregonian September 21, 2007 16:40PM
Categories: Previous coverage
South African's bid denied again
By Ashbel S. Green
The Oregonian
Tuesday, October 17, 2006

Immigration officials on Monday again rejected the legal residency application of a South African woman, in part because her husband is dead.

A federal appellate court in April said immigration officials were wrong to deport former Oregon resident Carla Freeman because she had been married to an American less than two years when he died in a car wreck.

The court ordered immigration officials to reconsider her application for permanent residency.

Six months later, immigration officials did just that -- and rejected her.

In a letter, U.S. Citizenship and Immigration Services accused her of lying about her intentions to stay here permanently when she entered the country in 2001, which her attorney denies.

She married Robert Freeman in February 2001 in Chicago, and he later filed the paperwork for her to become a permanent resident.

Robert Freeman was killed in a car accident in 2002. Carla Freeman still wanted to be a U.S. citizen and moved to Clarkston, Wash., to live with her sister-in-law. But in May 2004, immigration officials denied her application, so she returned to her native country.

Next, immigration officials said Freeman did not "merit a favorable exercise of discretion," the letter said. Normally, being married strongly supports exercising discretion, but "the actual legal relationship that supports your claim of immediate relative status no longer exists," the letter said.

In other words, Freeman's husband is dead.

Sharon Rummery, spokeswoman for Citizenship and Immigration Services, said privacy laws prevented her from commenting on the specifics of the case, but said the agency was bound by federal law.

"We cannot change the law," Rummery said. "We just don't have that power."

But Freeman's attorney, Brent Renison, accused immigration officials of denying the application because he had threatened them with contempt charges for stalling.

"I believe that this denial is vindictive, and meant to punish my client for winning her case in court," Renison said in a statement. "This is a shameful act of retribution."

Renison said Freeman did not break the rules and deserved a right to a hearing to make her case.

"She followed the rules," he said.

Renison said that he did not think he could appeal a discretionary rejection, but would demand that she get a hearing. If denied, he would try and get it back before the 9th Circuit.

Immigration law allows spouses of U.S. citizens to seek legal residency. But because Freeman had been married less than two years when her husband died, immigration officials said she had to be deported.

After she returned to South Africa, the 9th Circuit sided with her.

Trixie_b

I hadn't heard about this case.. I'm just thinking what I'd want to do if I were in the same position as Mrs Freeman (heaven forbid).

To lose your spouse and then to lose your home must be devastating.

When you get married you foresee your future years planned out with the husband/wife, with whatever living arrangements you have. To have that all taken away from you in one fell swoop must be simple awful.

Folinskyinla

Hi:

These are the links to the subsequent May 29, 2007 decisions from the 9th.

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C830B1046B0A1995882572EA00535D88/$file/0675539o.pdf?openelement

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8CF95B8C0821EA29882572EA0052FB4A/$file/0435797o.pdf?openelement

In the past, the DHS would often change their ways when they were given an argument of law or a court of appeals told them off -- this does not happen as often anymore. DHS has gotten quite arrogant. I have seen an actual "reasoned' decision where they QUOTE a provision of the Immigration & Nationality Act and then say "this reasoning is flawed." I kid you not.