Dskdrv

Hi,

A woman with a student visa marries a US citizen. Applies for EAD, I-130 AOS ....
If the student visa expires, I believe she can stay in US while application for AOS
is being processed. Question - If student via expired , can she get Advance Parole ?
Would it be best if she did not leave USA with AP if visa expired because there could
be problems getting back in. If INS decided to grant AP after reviewing application
, should that be enough for POE officials to allow her back in.

Thanks

Mrtravel

She should have no problems with AP as long and she didn't overstay the visa by over
180 days. If you overstay a visa by over 180 days, you have a ban to worry about.

Dskdrv wrote:
    > Hi,
    > A woman with a student visa marries a US citizen. Applies for EAD, I-130 AOS ....
    > If the student visa expires, I believe she can stay in US while application for AOS
    > is being processed. Question - If student via expired , can she get Advance Parole
    > ? Would it be best if she did not leave USA with AP if visa expired because there
    > could be problems getting back in. If INS decided to grant AP after reviewing
    > application , should that be enough for POE officials to allow her back in.
    > Thanks

Folinskyiinla

[email protected] (Dskdrv) wrote in message
news:<[email protected]>...
    > Hi,
    > A woman with a student visa marries a US citizen. Applies for EAD, I-130 AOS
    > .... If the student visa expires, I believe she can stay in US while
    > application for AOS is being processed. Question - If student via expired , can
    > she get Advance Parole ? Would it be best if she did not leave USA with AP if
    > visa expired because there could be problems getting back in. If INS decided to
    > grant AP after reviewing application , should that be enough for POE officials to
    > allow her back in.
    > Thanks

Hi:

I'm an immigration attorney in Los Angeles. The following is a general explanation
of the law, and should not be construed as legal advise, I'm not your lawyer.

First, to be pedantic, a "visa" is, by defintion, a document issued by a US consular
officer which allows an alien to come to the United States at a designated Port of
Entry and apply for admission to the U.S.. Once admitted, the visa is irrelevant
while the person is in the United States. Expiration of the "visa" has no effect.

However, I'm congnizant of the fact that many people use the phrase "expiry of visa"
when they mean expiry of status.

Most, but not all non-immigrants are admitted for a set period of time. In contrast
"F-1" students are admitted for for "duration of status" as noted by the "D/S" on the
I-94 entry document. There is no set period of time for the admission.

The 3/10 years bars don't kick in until 180 days have elapsed from the expiry of the
time given by the INS. This will be the expiry date given at intitial admission or
any extension thereof. In the alternative, the 180 day clock would start running
when there is an affirmative finding by the appropriate authority [such as an
Immigration Judge] of expiry of status.

The INS and the Department of State has interpreted this to mean that a "D/S" student
who has not been denied a change of status, change of school or ordered removed, does
NOT start accruing the 180 days. For example, I had a client who overstayed by three
years after completion of studies and he had no trouble in getting a non-immigrant
"O-1" visa outside of the United States and returning to the US.