Entering again on a K3
Oct 14th 2003, 5:41 am
#16
Mummy and baby 1982
Joined: May 2003
Location: North West Chicago Suburbs
Posts: 1,067
Re: Entering again on a K3
Originally posted by Andy Platt
"jeffreyhy" <member@british_expats.com> wrote in message
news:[email protected]...
> Andy,
> I know at least one very competent immigration attorney who disagrees,
> and believes that AP is necessary to preserve an applicaiton for AOS.
> Given that the different BCIS offices cannot agree on whether a K3 can
> apply for AOS before or until the original I-130 petition is approved, I
> would not trust them to be in agreement on the abandonment of an
> application for adjustment of status.
While local offices can (and do) screw up, they are not entitled to make up
or ignore law that they don't like. It's quite explicit and straightforward.
Section 245.2.a.4.2.C says:
"The travel outside of the United States by an applicant for adjustment of
status, who is not under exclusion, deportation, or removal proceeding and
who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the
application if, upon returning to this country, the alien is in possession
of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status."
(http://www.bcis.gov/lpBin/lpext.dll/...2/slb-22753/sl
b-22948?f=templates&fn=document-frame.htm#slb-8cfrsec2452)
This same section details the requirements for H-1, etc. applicants which
*are* more onerous.
Andy.
--
I'm not really here - it's just your warped imagination.
"jeffreyhy" <member@british_expats.com> wrote in message
news:[email protected]...
> Andy,
> I know at least one very competent immigration attorney who disagrees,
> and believes that AP is necessary to preserve an applicaiton for AOS.
> Given that the different BCIS offices cannot agree on whether a K3 can
> apply for AOS before or until the original I-130 petition is approved, I
> would not trust them to be in agreement on the abandonment of an
> application for adjustment of status.
While local offices can (and do) screw up, they are not entitled to make up
or ignore law that they don't like. It's quite explicit and straightforward.
Section 245.2.a.4.2.C says:
"The travel outside of the United States by an applicant for adjustment of
status, who is not under exclusion, deportation, or removal proceeding and
who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the
application if, upon returning to this country, the alien is in possession
of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status."
(http://www.bcis.gov/lpBin/lpext.dll/...2/slb-22753/sl
b-22948?f=templates&fn=document-frame.htm#slb-8cfrsec2452)
This same section details the requirements for H-1, etc. applicants which
*are* more onerous.
Andy.
--
I'm not really here - it's just your warped imagination.
After reading and reading I agree with you. I believe one can adjust status and not apply for advanced parole to enter or leave the US providing the K3 is still valid. It is not considered abandonment of AOS UNTIL the K3 visa expires, that is when advanced parole is required. Unfortunately this seems to be a very confusing area for many people...me included, given how young the K3 visa process is.
Maggie
Oct 14th 2003, 6:51 am
#17
Member
Joined: Apr 2001
Posts: 14,049
Re: Entering again on a K3
Andy,
Thanks for the specific citation.
Thanks for the specific citation.
Originally posted by Andy Platt
"jeffreyhy" <member@british_expats.com> wrote in message
news:[email protected]...
> Andy,
> I know at least one very competent immigration attorney who disagrees,
> and believes that AP is necessary to preserve an applicaiton for AOS.
> Given that the different BCIS offices cannot agree on whether a K3 can
> apply for AOS before or until the original I-130 petition is approved, I
> would not trust them to be in agreement on the abandonment of an
> application for adjustment of status.
While local offices can (and do) screw up, they are not entitled to make up
or ignore law that they don't like. It's quite explicit and straightforward.
Section 245.2.a.4.2.C says:
"The travel outside of the United States by an applicant for adjustment of
status, who is not under exclusion, deportation, or removal proceeding and
who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the
application if, upon returning to this country, the alien is in possession
of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status."
(http://www.bcis.gov/lpBin/lpext.dll/...2/slb-22753/sl
b-22948?f=templates&fn=document-frame.htm#slb-8cfrsec2452)
This same section details the requirements for H-1, etc. applicants which
*are* more onerous.
Andy.
--
I'm not really here - it's just your warped imagination.
"jeffreyhy" <member@british_expats.com> wrote in message
news:[email protected]...
> Andy,
> I know at least one very competent immigration attorney who disagrees,
> and believes that AP is necessary to preserve an applicaiton for AOS.
> Given that the different BCIS offices cannot agree on whether a K3 can
> apply for AOS before or until the original I-130 petition is approved, I
> would not trust them to be in agreement on the abandonment of an
> application for adjustment of status.
While local offices can (and do) screw up, they are not entitled to make up
or ignore law that they don't like. It's quite explicit and straightforward.
Section 245.2.a.4.2.C says:
"The travel outside of the United States by an applicant for adjustment of
status, who is not under exclusion, deportation, or removal proceeding and
who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the
application if, upon returning to this country, the alien is in possession
of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status."
(http://www.bcis.gov/lpBin/lpext.dll/...2/slb-22753/sl
b-22948?f=templates&fn=document-frame.htm#slb-8cfrsec2452)
This same section details the requirements for H-1, etc. applicants which
*are* more onerous.
Andy.
--
I'm not really here - it's just your warped imagination.
Oct 14th 2003, 11:42 am
#18
Guest
Posts: n/a
Re: Entering again on a K3
I gather the K-3 visa has not been around for very long---when did it
start being offered?
I imagine anything "new', the BCIS offices would have some differing
opinions on some of the nuances until they get worked out (or BCIS
poeple aren't reading their memos!)
start being offered?
I imagine anything "new', the BCIS offices would have some differing
opinions on some of the nuances until they get worked out (or BCIS
poeple aren't reading their memos!)
Oct 14th 2003, 2:47 pm
#19
Sursum corda
Joined: Sep 2002
Location: Richmond Hill, GA USA
Posts: 38,860
Re: Entering again on a K3
Originally posted by Maryanne Kehoe
I gather the K-3 visa has not been around for very long---when did it
start being offered?
I imagine anything "new', the BCIS offices would have some differing
opinions on some of the nuances until they get worked out (or BCIS
poeple aren't reading their memos!)
I gather the K-3 visa has not been around for very long---when did it
start being offered?
I imagine anything "new', the BCIS offices would have some differing
opinions on some of the nuances until they get worked out (or BCIS
poeple aren't reading their memos!)
August 15, 2001
Oct 16th 2003, 4:39 am
#20
Member
Joined: Apr 2001
Posts: 14,049
Re: Entering again on a K3
Andy,
What you quoted is not the law - it is the regulation that interprets and implements the law. The Code of Federal Regulations (CFR) is comprised of rules which are formulated by government agencies under their delegated power to interpret and apply statutes. They are ignored and/or misapplied with enthusiasm all the time by the agencies that promulgate them. Agencies often ignore or misapply their own regs in part because they feel that interpretation and application of their "own" regs is within their special area of expertise and authority. Government agencies do not always interpret or administer the law or their own regulations in what would appear to be a facially correct manner. Reading the CFR (or the statute itself for that matter) isn't necessarily enough to predict what the agencies do now or will do in future. Experience of what they actually do is a better predictor of future behavior. In actual practice, adjudicators frequently use the default AOS abandonment rule in K-3 cases.
An experienced immigration attorney friend of mine tells me this, "In the last couple of years our office has been contacted by well over a dozen K-3's whose adjustment applications were deemed abandoned by adjudicators because of departures and re-entries without an advance parole. Knowing that in advance on a case, should I tell someone to have nice trip and not to worry because the regs facially appear to say that they don't need parole? Or should you tell them to take the logically safe approach? My wife just got hired a couple of weeks ago to prosecute an appeal in a case involving a Canadian where he was deemed to have abandoned his AOS in a pending PR case because he left and re-entered without parole. His re-entry isn't an issue just his AOS. She'll win eventually but, who needs the grief, delay and expense? I think that it is a very bad idea to put pro se applicants in a position where they may have to argue a misapplication of the law with a Federal agency. They are better off taking the safe approach that will get them through the process completely unscathed. If they get an adjudicator who actually knows and follows the letter of the regulations, no foul. If they get one who misapplies this regulatory subsection, as is very likely, they are still safe. You should still guide them based on what they will in fact be likely to experience."
I would be interested to hear what experiences Udall and Folinsky may have had with K3 who have had their AOS declared abadoned because they left the USA without Advance Parole.
For myself, I will be happy to pay the fee for AP as insurance against the more expensive and time consuming alternatives of re-filing I-485 or hiring an attorney
What you quoted is not the law - it is the regulation that interprets and implements the law. The Code of Federal Regulations (CFR) is comprised of rules which are formulated by government agencies under their delegated power to interpret and apply statutes. They are ignored and/or misapplied with enthusiasm all the time by the agencies that promulgate them. Agencies often ignore or misapply their own regs in part because they feel that interpretation and application of their "own" regs is within their special area of expertise and authority. Government agencies do not always interpret or administer the law or their own regulations in what would appear to be a facially correct manner. Reading the CFR (or the statute itself for that matter) isn't necessarily enough to predict what the agencies do now or will do in future. Experience of what they actually do is a better predictor of future behavior. In actual practice, adjudicators frequently use the default AOS abandonment rule in K-3 cases.
An experienced immigration attorney friend of mine tells me this, "In the last couple of years our office has been contacted by well over a dozen K-3's whose adjustment applications were deemed abandoned by adjudicators because of departures and re-entries without an advance parole. Knowing that in advance on a case, should I tell someone to have nice trip and not to worry because the regs facially appear to say that they don't need parole? Or should you tell them to take the logically safe approach? My wife just got hired a couple of weeks ago to prosecute an appeal in a case involving a Canadian where he was deemed to have abandoned his AOS in a pending PR case because he left and re-entered without parole. His re-entry isn't an issue just his AOS. She'll win eventually but, who needs the grief, delay and expense? I think that it is a very bad idea to put pro se applicants in a position where they may have to argue a misapplication of the law with a Federal agency. They are better off taking the safe approach that will get them through the process completely unscathed. If they get an adjudicator who actually knows and follows the letter of the regulations, no foul. If they get one who misapplies this regulatory subsection, as is very likely, they are still safe. You should still guide them based on what they will in fact be likely to experience."
I would be interested to hear what experiences Udall and Folinsky may have had with K3 who have had their AOS declared abadoned because they left the USA without Advance Parole.
For myself, I will be happy to pay the fee for AP as insurance against the more expensive and time consuming alternatives of re-filing I-485 or hiring an attorney
Originally posted by Andy Platt
"jeffreyhy" <member@british_expats.com> wrote in message
news:[email protected]...
> Andy,
> I know at least one very competent immigration attorney who disagrees,
> and believes that AP is necessary to preserve an applicaiton for AOS.
> Given that the different BCIS offices cannot agree on whether a K3 can
> apply for AOS before or until the original I-130 petition is approved, I
> would not trust them to be in agreement on the abandonment of an
> application for adjustment of status.
While local offices can (and do) screw up, they are not entitled to make up
or ignore law that they don't like. It's quite explicit and straightforward.
Section 245.2.a.4.2.C says:
"The travel outside of the United States by an applicant for adjustment of
status, who is not under exclusion, deportation, or removal proceeding and
who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the
application if, upon returning to this country, the alien is in possession
of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status."
(http://www.bcis.gov/lpBin/lpext.dll/...2/slb-22753/sl
b-22948?f=templates&fn=document-frame.htm#slb-8cfrsec2452)
This same section details the requirements for H-1, etc. applicants which
*are* more onerous.
Andy.
--
I'm not really here - it's just your warped imagination.
"jeffreyhy" <member@british_expats.com> wrote in message
news:[email protected]...
> Andy,
> I know at least one very competent immigration attorney who disagrees,
> and believes that AP is necessary to preserve an applicaiton for AOS.
> Given that the different BCIS offices cannot agree on whether a K3 can
> apply for AOS before or until the original I-130 petition is approved, I
> would not trust them to be in agreement on the abandonment of an
> application for adjustment of status.
While local offices can (and do) screw up, they are not entitled to make up
or ignore law that they don't like. It's quite explicit and straightforward.
Section 245.2.a.4.2.C says:
"The travel outside of the United States by an applicant for adjustment of
status, who is not under exclusion, deportation, or removal proceeding and
who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the
application if, upon returning to this country, the alien is in possession
of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status."
(http://www.bcis.gov/lpBin/lpext.dll/...2/slb-22753/sl
b-22948?f=templates&fn=document-frame.htm#slb-8cfrsec2452)
This same section details the requirements for H-1, etc. applicants which
*are* more onerous.
Andy.
--
I'm not really here - it's just your warped imagination.
Oct 16th 2003, 5:21 am
#21
Guest
Posts: n/a
Re: Entering again on a K3
"jeffreyhy" <member@british_expats.com> wrote in message
news:[email protected]...
> Andy,
> What you quoted is not the law - it is the regulation that interprets
> and implements the law. The Code of Federal Regulations (CFR) is
I believe this is debateable semantics but what is clear is that CFR have
the force of law and have to be followed as if they were in the statute. As
I said before BCIS can screw up - that's what appeals are for.
I can understand a lawyer saying that BCIS regularly screws up here and it's
your choice. This wouldn't even be an appeal you would need a lawyer for
(not that I would do it without one).
Andy.
--
I'm not really here - it's just your warped imagination.
news:[email protected]...
> Andy,
> What you quoted is not the law - it is the regulation that interprets
> and implements the law. The Code of Federal Regulations (CFR) is
I believe this is debateable semantics but what is clear is that CFR have
the force of law and have to be followed as if they were in the statute. As
I said before BCIS can screw up - that's what appeals are for.
I can understand a lawyer saying that BCIS regularly screws up here and it's
your choice. This wouldn't even be an appeal you would need a lawyer for
(not that I would do it without one).
Andy.
--
I'm not really here - it's just your warped imagination.
Nov 8th 2003, 7:52 am
#22
Forum Regular
Joined: Sep 2002
Posts: 144
Re: Entering again on a K3
I'd be interested too in any of the lawyers knowing of AOS declared abandoned because they did not apply for advance parole whilst holdiing a valid k3/k4 visa.....
I would be interested to hear what experiences Udall and Folinsky may have had with K3 who have had their AOS declared abadoned because they left the USA without Advance Parole.
For myself, I will be happy to pay the fee for AP as insurance against the more expensive and time consuming alternatives of re-filing I-485 or hiring an attorney [/QUOTE]
I would be interested to hear what experiences Udall and Folinsky may have had with K3 who have had their AOS declared abadoned because they left the USA without Advance Parole.
For myself, I will be happy to pay the fee for AP as insurance against the more expensive and time consuming alternatives of re-filing I-485 or hiring an attorney [/QUOTE]
Feb 2nd 2004, 4:29 pm
#23
Howling at the Moon
Joined: Oct 2002
Location: Incline Village, NV
Posts: 3,742
Re: Entering again on a K3
Originally posted by nat
I'd be interested too in any of the lawyers knowing of AOS declared abandoned because they did not apply for advance parole whilst holdiing a valid k3/k4 visa.....
I would be interested to hear what experiences Udall and Folinsky may have had with K3 who have had their AOS declared abadoned because they left the USA without Advance Parole.
For myself, I will be happy to pay the fee for AP as insurance against the more expensive and time consuming alternatives of re-filing I-485 or hiring an attorney
I'd be interested too in any of the lawyers knowing of AOS declared abandoned because they did not apply for advance parole whilst holdiing a valid k3/k4 visa.....
I would be interested to hear what experiences Udall and Folinsky may have had with K3 who have had their AOS declared abadoned because they left the USA without Advance Parole.
For myself, I will be happy to pay the fee for AP as insurance against the more expensive and time consuming alternatives of re-filing I-485 or hiring an attorney
I bumped this thread because I felt that it may be relevant to a current discussion on the NG?
Feb 4th 2004, 6:14 am
#24
Forum Regular
Joined: Sep 2002
Posts: 144
Re: Entering again on a K3 - AOS Abandonment?
Originally posted by lairdside
I too would love to know if anyone knows of any K3 visa holders who were refused re-entry to the US for having filed an AOS and it being deemed abandoned (albeit this shouldn't happen). I am planning to AOS and hold K3 but don't want to face being refused re-entry because of it.
Feb 4th 2004, 6:37 am
#25
Member
Joined: Apr 2001
Posts: 14,049
Re: Entering again on a K3 - AOS Abandonment?
nat,
I haven't heard of anyone being denied entry. I've only heard of people having their AOS petition be considered abandoned.
Regards, JEff
I haven't heard of anyone being denied entry. I've only heard of people having their AOS petition be considered abandoned.
Regards, JEff
Originally posted by nat
I too would love to know if anyone knows of any K3 visa holders who were refused re-entry to the US for having filed an AOS and it being deemed abandoned (albeit this shouldn't happen). I am planning to AOS and hold K3 but don't want to face being refused re-entry because of it.
I too would love to know if anyone knows of any K3 visa holders who were refused re-entry to the US for having filed an AOS and it being deemed abandoned (albeit this shouldn't happen). I am planning to AOS and hold K3 but don't want to face being refused re-entry because of it.
Last edited by jeffreyhy; Feb 4th 2004 at 10:09 am.
Feb 4th 2004, 9:59 am
#26
Forum Regular
Thread Starter
Joined: Sep 2003
Posts: 54
Re: Entering again on a K3 - AOS Abandonment?
My wife is a K-3 holder and we left the country for Christmas and had no problems coming back in. We already had our AOS interview before leaving though. Our interviewer asked if we were going anywhere for Christmas and we said we're going to my wife's home. The interviewer then asked if we had AP and we said the K3 doesn't require it. She then said, "oh yeah that's how that visa works" and said it was good that was the case and wished us a nice trip and all. Coming back in the country my wife had no problems whatsoever.
