SanBernardino

In another thread, it was said that when using advanced parole, you should consider its effect on your status. What effect does using advanced parole have on status? Does a person have a different status after using advanced parole than before?

I have heard that people who were out of status before they filed for adjustment of status are advised not to use advance parole. Is there any reason of concern for those who were on a valid visa when they filed their I-485 and received receipt/EAD?

I would really appreciate either legal comments or direct experience with this matter. A big TIA!

Edit: spelling! I always get affect/effect mixed up when typing, but notice when reading!

Folinskyinla

Hi:

This is a weird area of the immigration law -- people INSIDE the United States are in a better legal position than a person OUTSIDE the United States, including people at a port of entry. Parole is a legal fiction that, although the person may be physically inside the United States, they are considered to be at the port of entry.

This is a complicated area which usually of no consequence -- until something goes wrong.

In an exercise of paranoia, one should avoid leaving until the adjustment is done and approved. But normally, use of AP is just fine.

The problem for people not in the US in lawful status is that the three or ten year bars, if applicable, kick in when a person leaves the US.

SanBernardino

Oh, that IS weird.

These bars are for people who were out of status BEFORE they filed I-485, right?

I don't think our situation is any different than most I-485 applicants; he had a valid visa and was in-status when we applied, but he has no visa or visa-status now. (His F-1 expired and he graduated.) This is just the sort of situation, advanced parole is meant for, isn't it?

Folinskyinla

Hi:

I have no idea exactly what AP was meant for. The law of unintended consequences has kicked in with a vengance. There are easier ways they could have done it, but the law used to place great importance on an "entry" and since 1997, on "admission." Crossing the border is a significant legal event.

I could state the law on the subject at length. But I can't say that I agree that it is a sensible law.

BTW, under the old defintion of "entry" -- traveling from San Francisco to Honolulu with no intervening stops was not an "entry." However, based upon the logic of this old "entry" doctrine, it WOULD be an "admission" under the new statutory concepts. However, the government still applies the old defintion for some reason. Although not logical, it is sensible.

SanBernardino

Thank you, Folinskyinla. The legalities are interesting, if confusing. From the comment "people INSIDE the United States are in a better legal position than a person OUTSIDE the United States", I can see cause for concern while OUTSIDE of the US, but what about INSIDE the US? Once safely returned INSIDE the US, is there any further effect of having used the AP?

Basically I am wondering how using AP affects the status of someone who was legal, but whose visa status ended awhile after receiving the I-485 receipt and EAD.

In this case, what danger is there to travelling on AP?

In this case, does a person have a different status after using advanced parole than before?

Folinskyinla

Hi:

The point is that there is a legal fiction that NOBODY comes back on "advance parole" -- there is a legal fiction that they are at the POE outside the US.

JnB637

This is so confusing.... im hessitating so much wheter to use AP or just stay here and wait for my stamp.

SanBernardino

Sigh, I appreciate your replies, but I don't understand what this means for someone who wants to use AP. Maybe I can just try to understand a smaller bit then...

My understanding of the 3 or 10 year bar is:
1. It is applicable to someone who was here illegally at the time of initiating adjustment of status.
2. It is not applicable to someone whose visa-status ended after the I-485 receipt and EAD were issued and was always legal before that.

Is this correct?

Visitor

The bar is specifically for those who were "out of status" or 'illegally in the US" before they applied for an adjustment of status. If you were never out of status then I don't see that there is anything to worry about.

In order to trigger the 3 year ban you have to be 180 days or more "out of status"
In theory you could have overstayed by 179 days and still apply for and use an Advance Parole but many people on this board advise against it.


The purpose of the AP is to give you permission to leave the country on a temporary basis and not have to forfit your application for adjustment fo status.

JnB637

The out of status is when your I-94 or your visa expires? I had a 10 years visitors visa and it doesnt expire in 7 more years.

Folinskyinla

Technically, you are being more restrictive than the law -- the "out of status" time must be beyond a period of time authorized or with an affirmative finding that you are out of status. A student who unlawfully works is "out of status" but is not incurring "bad time" for the bar to kick in.

Folinskyinla

Generally speaking -- the I-94. The "visa" is meaningless once you are in the country.

Matthew Udall

Think of a person as two separate entities; there is their physical self and their legal self.

When somebody enters with their visa, they are physically present in the U.S., and they are also legally present in the U.S. (as they have been admitted to the U.S.).

When somebody leaves with advanced parole and then returns, it is as if the government lets the physical self (the body) back into the U.S., but legally, that person is still outside the U.S. knocking on the door asking to be let back in.

From last year’s Christmas poem, you will find the following stanza:

“Filed my AP and AOS,
To the U.S. I’m committed�
(But when you use AP
You have not been “admitted�)

SanBernardino

A student on an F-1 visa is out of status when the I-94 expires or he otherwise violates the terms of his status. For example, not enrolling in the required number of units.

Like TulipforHeidi, my husband has never been out of status. He went from F-1 status to adjustee status. He was on a valid F-1 from the time he came here until he graduated. We filed for AOS (and received the receipt) a few months before he graduated. (We have been married for over 2 years. Now I wish we had filed 2 years ago, but it didn't seem important as long as he was in valid student status.) I think that is good advice about bringing the I-485 receipt.

SanBernardino

Oh my! So I did not understand the difference between "entering" and being "admitted". I gathered a distinction was being made, but I couldn't figure out what it meant. So, after using advance parole and returning here, he will legally be considered to be at the point of entry? Even though he is physically INSIDE the U.S. he is legally considered to be OUTSIDE at the point of entry? Then is he still considered to be on parole? This continues until the adjusment is granted?

I am turning green just thinking about this. So I guess the important question is how does this affect his legal status during/after parole? Since this system seems to work for most people, it sounds like if he incurrs no legal troubles and was never out of status, there is no problem, right? Just for example, what can be a problem? Are there any specific concerns I should be aware of in the legal status of people physically present in the US, but legally at the point of entry?