Gregg

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I have created a problem for myself, I think. My fiancee arrived here =
Sept. 7, 2001 on a K-1 visa. We were married within the statutory period =
of 90 days, on November 25. We waited a bit to file her AOS, it was sent =
in May. They returned it twice, the end result being that her AOS =
receipt of application is dated 7/2/02. She is now back home in the =
Philippines visiting her family, and she has her advance parole. I now =
find out that since she was here for more than 180 days after her 1-94 =
expired and the AOS wasn't filed that she could be barred ? Her I-94 =
expired on December 9. She therefore is about 30 days over. Will they =
seriously deport her for this ?=20

I realize that I screwed up. My question is now, what to do about it. =
Should I fly over there and accompany her back ? Can she file for a =
waiver at the POE ? If she is turned back, what to do then ? I asked an =
immigration atty. and she said that "maybe they won't notice." Well, =
thats quite a lot to hope for. I could kill myself over this.

Any advice ? Please no flames, I'm doing enough self flagellation as it =
is...

Thanks

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I have created a problem for myself, I =
think. My=20
fiancee arrived here Sept. 7, 2001 on a K-1 visa. We were married within =
the=20
statutory period of 90 days, on November 25. We waited a bit to file her =
AOS, it=20
was sent in May. They returned it twice, the end result being that her =
AOS=20
receipt of application is dated 7/2/02. She is now back home in the =
Philippines=20
visiting her family, and she has her advance parole. I now find out that =
since=20
she was here for more than 180 days after her 1-94 expired and the AOS =
wasn't=20
filed that she could be barred ? Her I-94 expired on December 9. She =
therefore=20
is about 30 days over. Will they seriously deport her for this ? =

Â
I realize that I screwed up. My =
question is now,=20
what to do about it. Should I fly over there and accompany her back ? =
Can she=20
file for a waiver at the POE ? If she is turned back, what to do then ? =
I asked=20
an immigration atty. and she said that "maybe they won't notice." Well, =
thats=20
quite a lot to hope for. I could kill myself over this.
Â
Any advice ? Please no flames, I'm =
doing enough=20
self flagellation as it is...
Â
Thanks

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Andy Platt

Perhaps a better lawyer will help with what, surely, is the key question. If
you made a non-frivolous application for adjustment of status in May 2002
she was within the 180 day period and the clock should stop then. That is
the key question. The problem with the "perhaps they won't notice" is how
many times will they not notice? They didn't notice once - when they granted
AP, they probably won't notice when she enters the US because the
information about receipt dates, etc. won't be in the system AFAIK - but
they could notice at the interview and you don't want that!

Andy.

--
I'm not really here - it's just your warped imagination.
"Gregg" wrote in message
news:[email protected]...
I have created a problem for myself, I think. My fiancee arrived here Sept.
7, 2001 on a K-1 visa. We were married within the statutory period of 90
days, on November 25. We waited a bit to file her AOS, it was sent in May.
They returned it twice, the end result being that her AOS receipt of
application is dated 7/2/02. She is now back home in the Philippines
visiting her family, and she has her advance parole. I now find out that
since she was here for more than 180 days after her 1-94 expired and the AOS
wasn't filed that she could be barred ? Her I-94 expired on December 9. She
therefore is about 30 days over. Will they seriously deport her for this ?

I realize that I screwed up. My question is now, what to do about it. Should
I fly over there and accompany her back ? Can she file for a waiver at the
POE ? If she is turned back, what to do then ? I asked an immigration atty.
and she said that "maybe they won't notice." Well, thats quite a lot to hope
for. I could kill myself over this.

Any advice ? Please no flames, I'm doing enough self flagellation as it
is...

Thanks

Chris Parker

    > her AOS receipt of application is dated 7/2/02. She is now back home in the
    > Philippines visiting her family, and she has her advance parole. I now
    > find out that since she was here for more than 180 days after her 1-94
    > expired and the AOS wasn't filed that she could be barred ? Her I-94
    > expired on December 9. She therefore is about 30 days over. Will they
    > seriously deport her for this ?

It does look like she exceeded the 6 months, and her departure has
triggered the 3-year inadmissibility.

She can return with her Advance Parole just fine. Parole, after all,
is not admission and can be used for inadmissible aliens to enter the
U.S. The problem will come when you go in for your adjustment
interview - they can't approve the adjustment application if you are
inadmissible!

I'd proceed as normal for now. Certainly, you are in no rush to get
an adjustment interview. The 3-year inadmissibility is a temporary
inadmissibility; 3 years after the U.S. departure, it expires and she
will become admissible again. You could also attend the interview and
hope they don't notice. If they do, you can try explaining what
happened with the returned applications and maybe the adjudicator will
consider that time as part of the adjustment period, particularly if
you have the return notices to support that claim, and save you from
the inadmissibility.

In the worst case, where she declares you subject to the 3-year bar,
I'd withdraw the application at that point (i.e. abandon). Reapply
with fee the next day and wait again. You also could consider
delaying it through a rescheduling request.

None of this is legal advice of any sort, and you would be wise to
consult an immigration attorney and perhaps pay one to accompany you
to the adjustment interview. This is a sticky matter and a relatively
new provision of the INA, so nobody knows for sure how these bars are
being handled.

Good luck.
CP

Tony

Chris,

Thanks so much for taking the time to reply. I spoke to an imm. atty in L.A.
and he was most helpful. Spoke to me for about 30 minutes gratis. We came to
the following conclusion: I am going to fly over to Manila to actually
accompany her back. This way I will be there at the POE to answer any
possible questions. He agreed that it might not even be flagged, but that if
it is I just suggest that the package was posted in May and that we'd like
to address this issue at the AOS interview. I really haven't worried that
much about the AOS interview, since my immediate concern is that she not get
turned back at the airport. I wasn't aware of the ability to "abandon" the
application, thats an interesting angle. Can you point me to the relevant
section(s) of the INA code ? I have Westlaw access and I suppose that I will
download and print as much of that code as I can so I will have some reading
material for my 23 hours in the air each way....

Again, thanks for the reply, and if you have anything at all to add, please
do so !


The Idiot


"Chris Parker" wrote in message
news:cebf7f45.0210221849-
[email protected]...
    > > her AOS receipt of application is dated 7/2/02. She is now back home in
the
    > > Philippines visiting her family, and she has her advance parole. I now
    > > find out that since she was here for more than 180 days after her 1-94
    > > expired and the AOS wasn't filed that she could be barred ? Her I-94
    > > expired on December 9. She therefore is about 30 days over. Will they
    > > seriously deport her for this ?
    > It does look like she exceeded the 6 months, and her departure has
    > triggered the 3-year inadmissibility.
    > She can return with her Advance Parole just fine. Parole, after all,
    > is not admission and can be used for inadmissible aliens to enter the
    > U.S. The problem will come when you go in for your adjustment
    > interview - they can't approve the adjustment application if you are
    > inadmissible!
    > I'd proceed as normal for now. Certainly, you are in no rush to get
    > an adjustment interview. The 3-year inadmissibility is a temporary
    > inadmissibility; 3 years after the U.S. departure, it expires and she
    > will become admissible again. You could also attend the interview and
    > hope they don't notice. If they do, you can try explaining what
    > happened with the returned applications and maybe the adjudicator will
    > consider that time as part of the adjustment period, particularly if
    > you have the return notices to support that claim, and save you from
    > the inadmissibility.
    > In the worst case, where she declares you subject to the 3-year bar,
    > I'd withdraw the application at that point (i.e. abandon). Reapply
    > with fee the next day and wait again. You also could consider
    > delaying it through a rescheduling request.
    > None of this is legal advice of any sort, and you would be wise to
    > consult an immigration attorney and perhaps pay one to accompany you
    > to the adjustment interview. This is a sticky matter and a relatively
    > new provision of the INA, so nobody knows for sure how these bars are
    > being handled.
    > Good luck.
    > CP

Chris Parker

    > We came to the following conclusion: I am going to fly over to Manila to
    > actually accompany her back. This way I will be there at the POE to answer
    > any possible questions.

This isn't necessary, but obviously accompanying her does help show
prima facie eligibility for adjustment as a spouse of U.S. citizen.
There is really a very small chance of any issue involving re-entry.
The problem, as I mentioned, would come at the adjustment interview,
which will be her actual inspection for admission.

    > I wasn't aware of the ability to "abandon" the application, thats an
    > interesting angle. Can you point me to the relevant section(s) of the INA
    > code ?

8 CFR 103.2(b)(6) describes it.
http://www.ins.usdoj.-
gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-9704/slb-12460/slb-12723?f=templates&fn=do-
cument-frame.htm#slb-8cfrsec1032b6

8 CFR 103.2(b)(15) also may be of interest to you.
http://www.ins.usdoj.-
gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-9704/slb-12460/slb-12723?f=templates&fn=do-
cument-frame.htm#slb-8cfrsec1032b6


CP

Chris Parker

    > Can you point me to the relevant section(s) of the INA code ? I have Westlaw
    > access and I suppose that I will download and print as much of that code as I
    > can so I will have some reading material for my 23 hours in the air each
    > way....

The 3-year bar and waiver provision is described at:
INA 212(a)(9)(B) [8 U.S.C. 1182(a)(9)(B)]
http://www.ins.usdoj.gov/lpBin/lpe-
xt.dll/inserts/slb/slb-1/slb-20/slb-1987?f=templates&fn=document-frame.htm#slb-act-
212a9b


CP