mqwang

Hello,

Short recap of our story:

I recently became a US Citizen. My wife came to the US almost a year ago on B-2 visa. At the time of her entry she was allowed to stay in the S for 6 months. In November last year we filed for extension of her visa for another 6 months hoping that in the meantime I would be able to become a US citizen. In February 2003 we received a second NOA from BCIS (the first one was the receipt) asking for some more evidence that would support the petition for extension of stay. The NOA also stated that all requested documents must be received on or before May 19th, 2003. Since at that time we received the second NOA my citizenship process was almost completed, we decided not to send any supporting documents for extension of stay.

On May 17th, 2003 we filed via mail for Adjustment of Status for my wife with BCIS office in Miami. Now, I am wondering if she's here legally or not. So here are the key questions that are bothering me:

1. what is actually the status of my wife?
2. Is she/was she out of status?
3. If she is/was out of status, then for long?

The reason I am asking all these questions is that my wife has just filed in person for Advance Parole and a lady at BCIS office she spoke to, told my wife that she currently has no status, because she does not have a greencard and her petition for extension of B-2 Visa was not completed. She even had to sign a document stating that she is currently out of status and if an AP is granted, she cannot leave the US for more than 180 days.

All this sounds strange to me, because I was under the impression that she was not out of status, because we filed for AOS 2 days prior to the deadline for submission of requested documents for B-2 extension. My wife tried to argue using the same reasoning, but the lady at BCIS got upset and basically the whole conversation can be summarized in the following words: "look, you either sign it now, or forget about traveling until you get the green card". So my wife signed that form. Now, I am wondering if that could complicate our vacation plans?

The last question which I guess summarizes the whole story: assuming that my wife will get the Advance Parole and that she will go overseas for a few days, what is the risk that she will not be admitted to the US on her way back? We planned to travel overseas in a few weeks, but if there is any risk that she will not be admitted to the US, then definately we're going to stay here. So please also advise if my wife should travel overseas using the Advance Parole.

Thank you,
mqwang

Rete

Until you can confirm 140% that your wife has not been out of status for 180 days or more, she should not under any circumstances leave the US even if she is granted advance parole. I believe that is where the 180 days comes in that the BCIS employee was talking about or perhaps your wife misunderstood. If she has been out of status for that length of time she would be banned from re-entry for 3 to 5 years.

I was under the impression, as you, that having filed for an extension of her tourist visa meant that she remained in status until the decision was made one way or the other. I don't know what happens since you aborted the decision making process with the BCIS by not returning the requested documentation.

Before she leaves the US if she is granted A/P, have a consultation at least with a good immigration attorney in the Miami area. They must be hundreds of them ;-)

Rete

lairdside

This is probably not accepted protocol on the NG?

But in the Miami area I'd go to Tammy Fox-Isicoff of Rifkin & Fox-Isicoff, P.A.. I believe that she is a good attorney and have found her to be a nice lady to boot.

Of course all only my own personal opinion.

Rete

Why would it not be acceptable? A personal referral by someone that has used an immigration attorney and found them to be worth their weight in knowledge is priceless.

Rete

mqwang

Well, her original entry visa was granted unil January 1st, 2003 and I guess that she somehow (???) became out of status on the next day (01/02/2003) as we did not send any requested information requested by BCIS in support of request for visa extension before the deadline (May 19th). That does not sound quite right, but maybe they're appling retro date concept or something like this. Can someone confirm it? Also, just out of curiosity: I am wondering then what was her status in the interim period (i.e. 01/01/2003 - 05/19/2003)?

The date on I-485 and I-130 receipts is May 17th, 2003 so actually she was out of status for less than 180 days prior to filing for AOS (01/01/2003 - 05/17/2003). So, correct me if I am wrong, it seems like she is in good shape or am I missing something?

mqwang

Dekka's Angel

Is the rule something like this?

If you apply to extend a visa, while the application is pending you are in status.

If the extension is approved, the extension is retroactive back to the original expiration date.

If the extension is denied, you become out of status as of the date of denial BUT

If the application to extend is deemed abandoned (i.e. by failure to timely respond to an RFE deadline), you are out of status as of the original expiration date (or maybe as of the date the application is deemed abandoned.)

I have no idea if this is what the law actually says - I am not an immigration lawyer. But if it is what it says, it would certainly explain why your wife would be considered out of status. I'd be curious to know if this is how it works.

lairdside

I also believe that if the application for the extension is deemed to be frivolent then the date from which the applicant is considered to have been out-of-status is the date of expiry of the orignial I-94.