Folinskyinla

Hi:

Actually the term of art used to be "entry" which was found at 101(a)(13) of the Immigration & Nationality Act. The 1996 legislation [effective 4-1-1997] replaced "entry" with "admission."

In 1963, the Supremes came out with a case entitled "Fleuti" which demonstrated the signfigance of the term entry. Fleuti had made a "brief, innocent & casual" trip to Tijuana which was not "meaningfully interruptive" of his permaent residence. The trip was about 3 hours. A lot of later ligitation focused on the extent of those terms.

Earlier cases on the concept of entry involved a guy who took the night train from Detroit to Buffalo not knowing the train transited Canada. Another case invovled a seaman who was on a Coastal steamer between two US ports when his ship was sunk by a German U-boat. He was rescued by a Cuban ship and taken to Cuba and ran into trouble when he attempted to return to the United States.

Carl

I think you are sweating this too much. AP is used frequently without any problems. If you need to travel, you really don't have any alternative. If you don't have to travel, and aren't comfortable with the risk. Then don't travel.

Folinskyinla

Hi:

We immigration lawyers get to see the bad consequences. Howerver, back in the days when the old INS would confuse "emergent" with "emergency", I recall a liaison meeting where the lady who is now the LOS District Director of USCIS opined -- "If an alien is willing to be placed in a worse legal position in order to travel, their reasons must be pretty important and therefore, emergent."

SanBernardino

Well I appreciate Folinskyinla and Mr. Udall's efforts to explain the complex legalities. I do appreciate your warnings that adjustees do have a different status after parole. I had no idea about this before. I am mostly concerned about the potential consequences, but it seems you are both reluctant to spell out possibilities. Ultimately what matters is whether my husband should attend a conference abroad next year. It is not a matter of life or death, but it is very important to his career. Without a clearer idea of the consequences, I guess I will advise him to book tickets for the conference. Thanks to all of you for your help thinking through this.
Edit: Deleted the quotation formating.

Matthew Udall

Without doing a proper consultation, I have no idea of your and your husband’s unique facts/situation; therefore it would be pretty difficult if not impossible to spell out possible potential problems.

The closest thing I could say is to read the entire body of immigration law (as it exists today), understand it, and then apply it to his actual unique facts/situation.

Plus, I'm also at a disadvantage in that I cannot see into the future to see what might happen (to him or by him) while he is awaiting his AOS interview, nor what future changes might be in store for various areas of immigration law.

Bluegrass Lass

Without knowing specifics about our cases, are you able to give any examples of problems you have seen arising from the use of AP? Or if you can't give examples, could you send a link for us to check out? What keywords would be useful for a websearch?

My fiance and I would like to know as next year, after we marry, he and I would like to travel to his sister's wedding in South Africa. It's not a necessity, obviously, but something that we both would like to do. But if it'll create more problems, then it won't be worth it, I reckon.

Folinskyinla

Hi:

I really don't know how to go into this unless given a particular fact situation. Both Matt and I are not being evasive -- these questions are quite fact specific -- including things that can happen in the future -- and no one has a crystal ball.

I have a case where the LPR husband filled out the I-130, put in the mail box and thereafter was murdered beofre it even reach CSC. We are not 12 years down the line, 2 children, supportive family to the widow and we'd be in a real world of hurt if my client had gotten advance parole and used it.

This case is quite unigue and I've been battling INS and now CIS for some time. I'm confident of ultimate victory. But its still a pain.

As some have pointed out, the vast majority who are granted AP use it with no problem. However, WHEN problems do arise, they tend to be BIG ones.

All Matt and I are saying is that there ARE risks -- more likely than not of a low probability, but of large consequences.

SanBernardino

Thank you warning us that it is dangerous to use advanced parole in that it changes your status. It sounds like it is too complicated to explain in what general ways parolee status is different from pre-parole status. Like most people concerned about their loved ones status, I am in no position to read and understand the entire body of immigration law. I guess I will have to go with common sense on this one, even though I am feeling somewhat paranoid about the undefined dangers. At the very least it is good to know that should anything of legal consequence happen after travelling on AP, that we are treading in different waters.

Rete

Mr. Udall has explained this for us at the start of this forum in 1998 and based on his warnings that status would change somewhat in terms of being paroled into the custody of the Director of the District USCIS Office you are in, we examined my husband's past and entrance into the US and looking into the future as much as we could and knowing he would not be doing anything to deliberately hinder his ability to adjust status, we applied for advance parole for the two years of our pending status and used the A/P on numerous occasions. Many others have read his explanation of A/P and possible consequences in the worse case scenarios and have used it successfully without problem or fear. We made educated choices and you and others must do so now.

Mr. Folinskyinla has since joined the forum and has added his expertise and still people have applied for and used advance parole. Just as they both have warned about trying to enter the US with a K-1 or I-130 pending, these warnings are useful and others have used their words to make educated choices on what they were and are willing to risk to see their intended or spouses while visas are pending. Again, my husband visited often during the K-1 pending process and he never had a major problem at the border. Yet, he was prepared to be turned around if necessary and voluntarily return to his country if refusal was given to his entrance. He didn't lie at the POE. Told the truth that he was coming to see his fiancee, the sweet young thing, (yeah, right!) and always seemed to met up with someone who was willing to trust that he would return to Canada and continue the K-1 processing. Others have not been so lucky. There is no law prohibiting a visit during the processing.

Rete

navyme

I would like to join this conversation of great level by asking if someone with an approved vawa(i360) battered immigrant could use AP with no problem while awaiting his or her AOS?
You are all great,
Thank you so much for your information.

Paulgani

"Folinskyinla" <member@british_expats.com> wrote in message
news:[email protected]...
    > As some have pointed out, the vast majority who are granted AP use
    > it with no problem. However, WHEN problems do arise, they tend to
    > be BIG ones.
    > All Matt and I are saying is that there ARE risks -- more likely than
    > not of a low probability, but of large consequences.

Seems to me that the proper thing to do would be to apply a "risk-benefit
analysis" when contemplating whether or not to use AP. Much like anyone who
desires to enter the U.S. as a tourist (whatever their intent) should do.
Heck, even with a green card, *any* departure from the U.S. runs a risk of
abandonment!

It would appear to me that the best way to mitigate the risk would be to
educate oneself in all the issues involved in said topic.

Paulgani

Matthew Udall

Beg your pardon? There is no law that explicitly says one cannot enter the U.S. while a K-1 or I-130 is pending. But the general principle applies that one must be able to demonstrate their nonimmigrant intent when entering with a nonimmigrant option, regardless of whether or not an I-129f or I-130 was filed by a petitioner.

Maybe that is what you meant, but from your statement above, that was not clear. In the future, please don’t try to recap what I’ve said in the past. I might not always be there to catch any mistakes. I would sure appreciate that. Thanks Rita.

Folinskyinla

Hi:

Unlike the situation where one intends to break the law and wanting to know the chances of getting caught, this is a situation where travel on advance parole is legal. Hence "risk-benefit" analysis is appropriate.

You'd be surprised how many times an attorney will get the following scenario. Q: I'm assured of getting back in, right?
A: No.
Q. You can't guarantee that I will get back in?
A: Absolutely not.
Q: But all of my friends, my mother, my father, all siblings, cousins and everybody I know has used AP has used AP with no problem. Why will I be different?
A: I didn't say you would be different.
Q: Then you DO guarantee I will get back in!?
A: No.
Q: But said I was no different from anyone else.
A: I didn't say that.

And so on. Sigh.

You hit the nail on the head -- even travel with a green card entails some risks.

hay228

How about if I want to invite my future fiancée. For this visit
she will be "visiting" then _going_ back, and later I will apply
for K1 visa (my papers are not done yet, so I cannot apply
for K1 yet)

Is it possible to demonstrate "nonimmigrant intent" in this case?
And if apply, and get denied, would that affect K1 process ?

Thanks

"Matthew Udall" <member@british_expats.com> wrote in message
news:[email protected]...
    > Originally posted by Rete
    > > Just as they both have warned about trying to enter the US with a K-1
    > > or I-130 pending…
    > Beg your pardon? There is no law that explicitly says one cannot enter
    > the U.S. while a K-1 or I-130 is pending. But the general principal
    > applies that one must be able to demonstrate their nonimmigrant intent
    > when entering with a nonimmigrant option, regardless of whether or not
    > an I-129f or I-130 was filed by a petitioner.
    > Maybe that is what you meant, but from your statement above, that was
    > not clear. In the future, please don’t try to recap what I’ve said in
    > the past. I might not always be there to catch any mistakes. I would
    > sure appreciate that. Thanks Rita.
    > --
    > Posted via http://britishexpats.com

Rete

No need to beg my pardon. I believe my post was on the spot and not cloudy in the least nor does it warrant a crystal ball to ascertain its meaning. Nowhere in my post did I say that either you or Mr. Folinskyinla said there was such a law. If you choose to read that into my post, then it is your subjective reading which has placed that assumption there. In fact my last sentence clearly states that there is no law stating that one cannot visit with a visa pending. And as I did not attribute my knowledge of that to the correct person(s), allow me at this time to attribute my knowledge of there being no law to disallow this to both you and Mr. Folinskyinla.

I was, in fact, remembering and reinterating the numerous times both you esteemed immigration attorneys had admonished posters with warnings of what "might" happen if one attempts to enter the US with a visa pending. I clearly recall this topic and both your opines being given often on this subject on the Doc Steen site. I distinctly recall this being brought up during the posts exchanged by you and Jason whose loved on was from Canada and who tried to enter the US but was denied entry because she out and out lied to the agent about the purpose of her visit and was caught in it. And thank you for adding to my post with your verbage about "demonstrating nonimmigrant intent".

You have now opened a new realm for newbies to explore ;-)

R