Advance Parole and 485 for my wife

R

rmarzullo

Registered Users (C)
I have my GC approved (I-485) and did the passport stamping in Texas Service Center on January 4th 2005.
My wife had her I-485 filed on November 2004 since we got married on July 2004, I mean before my 485 being approved.
She came to US using her European Passport thru Visa Waiver Program. My lawyer made a mistake and she stayed out of status for 1 month or so. We paid US $ 1000.00 penalty in order to file her I-485, and EAD.
She got her EAD already and her SSN as well.
We are planing to travel to outside US and JUST now my lawyer said she is not ELEGIBLE filing for Advanced Parole since she was out of status for 1 month.
My questions are:
1) There is any way to got a AP for her ?
2) Is my wife in risk of not having her 485 approved ? I just can;t understand since she was able to have EAD and SSN.
3) Does anyone know how long is taking in Texas 485 for those that filed for follow for joing (marriage) ?


Please help me !!!

Thanks
Ronaldo
 
rmarzullo said:
She came to US using her European Passport thru Visa Waiver Program. My lawyer made a mistake and she stayed out of status for 1 month or so. We paid US $ 1000.00 penalty in order to file her I-485, and EAD.
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Are you sure your wife is eligible for 245i relief? What is your priority date? Were you physically present in the US on December 22nd, 2000?

We are planing to travel to outside US and JUST now my lawyer said she is not ELEGIBLE filing for Advanced Parole since she was out of status for 1 month.
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She certainly is eligible for AP, but are you certain she was only illegally present for 1 month?
 
TheRealCanadian said:
Are you sure your wife is eligible for 245i relief? What is your priority date? Were you physically present in the US on December 22nd, 2000?

Yes, I were physically present in the US on that date. I am here since 1996. My lawyer told that she was eligible for 245i because my priority date allowed that. That's why her case was filed and she has already EAD card and SSN. And she has I-485 filed on her behalf.


She certainly is eligible for AP, but are you certain she was only illegally present for 1 month?
Click to expand...

She was out of status for about 1 1/2 month... And by that time being our lawyer was preparing/filling her case. So she can apply for AP, right?
And do you know how long is going to take for her get I-485 approved?
Thank you so much!
 
rmarzullo said:
She was out of status for about 1 1/2 month... And by that time being our lawyer was preparing/filling her case. So she can apply for AP, right?
Click to expand...

Maybe. But you still haven't answered the question - why did you pay the $1000?
 
TheRealCanadian said:
Maybe. But you still haven't answered the question - why did you pay the $1000?
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because the lawyer told us that we had to pay for the penalty that my wife stayed out of status for 1 1/2 month.... And paying that she could have filed her I-485...
The lawyer told us that:
1.- to leave the USA and wait for H-4 at the US Embassy overseas, depending if your husband's H-1B gets approved , this depends if at the time of departure you were still in status, which this was not your case.

2.- to file your application by paying a penalty of $1000, which you could not leave the US until GC is approved.

You choose option #2 and your adjustment case was filed. Therefore no advance parole was ever filed for you and you cannot travel outside the USA until GC is approved.




1.- Your advance parole was not file as you cannot leave the USA. If you do leave the US without a proper documentation i.e. approval of gc, you will be bared for 10 years, which basically mean, you cannot enter the US for 10 years.

2.- Yes, you can only leave the US when the GC is approved. It could take around 18 months or so. All depends on how the USCIS TSC process these cases. We will not be responsible if you decide to travel without the proper documents.


Our office always try to anticipate any problems but at the end we can never decide
or anticipate what any applicant will do at any given day, when your case was filed your visa waiver was already out of status.
 
rmarzullo said:
because the lawyer told us that we had to pay for the penalty that my wife stayed out of status for 1 1/2 month.... And paying that she could have filed her I-485...
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Well, then your lawyer is an idiot.

If you received your GC via employment sponsorship, then 245k allows either one of you to be out of status for up to 180 days, and file your I-485 without any penalty fee whatsoever.

And unless your priority date is before April 30th, 2001 and you were physically present in the United States on December 22, 2000, you are not elgibile for 245i relief (which involves the $1000 fee) anyways.

So ask your attorney for your thousand bucks back, or you'll report him to the Bar Association.

Where did you find this moron?
 
TheRealCanadian said:
The other interesting question is wether an alien who enters the US under the VWP is allowed to adjust status at all.
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my wife applied for I-539 on August 10. She was allowed to stay here until september 20 that was stamped on her I-94W card. On November 10 the lawyer applied for I-485... I payed $1500 for her case plus $1000 the fee of 245i.
I read on a site that:
"U.S. citizens can apply for brothers, sisters, parents, children (under 21) and spouses, while green card holders can apply for unmarried (including widowed and divorced) sons and daughters, as well as spouses. There is a standard to be met when filing a work related case, and that is "approvable when filed". The case has to be a real case for which you qualify, at the time when it is filed, or you do not qualify for the benefits of 245i. However, beware of travel. If you file such a case and then for some reason choose to travel outside the U.S. before you receive your green card, you will now trigger the 3 to 10 year bars and they will apply to you"

Well, we are so confused that we scheduled an appointment with another lawyer next week to solve her case... and see if she can apply for AP.

Thanks and keep in touch
 
TheRealCanadian: The other interesting question is wether an alien who enters the US under the VWP is allowed to adjust status at all.

The I-485 instructions say the following:

you are not eligible for adjustment of status if any of the following apply to you:

....

You were admitted to the United States as a visitor under
the Visa Waiver Program, unless you are applying
because you are an immediate relative of a U.S. citizen
(parent, spouse, widow, widower or unmarried child under
21 years old);

...
 
Wow. Thanks for that bit of info. I've never been eligible for the VWP, so the ins and outs of it are kinda fuzzy.

Our original poster has a problem. Actually, lots of them.

He's wasted $1000 on a 245i filing that his wife may or may not be eligible for, since he still hasn't answered wether he meets the 245i requirements. The wife certainly doesn't (since she wasn't physically present on 12/22/2000).

Now, she may not be eligible to adjust status at all, based on her entrance using the VWP. This situation might mean that the I-485 was not properly filed (since it could not be approved) and therefore illegal presence may be accumulating all the time. 180 days are up on March 20th.

The original lawyer needs to be dropped like a hot potato and reported to AILA and the local Bar Association. His poor conduct is almost criminal, but a good defense might be to claim he's too incompetent to have mens rea.
 
I concur with RealCanadian. The wife should seriously think about leaving U.S. before March 20 (or earlier) to aviod the 3/10 year bar. Since she would have difficulty to return to the States with an NIV (immigrantion intent, unless H1 or L1), the best option is the husband files I-824 for consular processing of her case.
 
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imwatcher123 said:
I concur with RealCanadian. The wife should seriously think about leaving U.S. before March 20 (or earlier) to aviod the 3/10 year bar. Since she would have difficulty to return to the States with an NIV (immigrantion intent, unless H1 or L1), the best option is the husband files I-824 for consular processing of her case.
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but my wife has EAD and SSN card already. And her I-485 was filed, and the lawyer told us that she has to stay in US until her GC is approved, specially because I paid the $1000 fee for 245i relief for her being 1 1/2 month out of status.
 
rmarzullo said:
but my wife has EAD and SSN card already. And her I-485 was filed, and the lawyer told us that she has to stay in US until her GC is approved, specially because I paid the $1000 fee for 245i relief for her being 1 1/2 month out of status.
Click to expand...

I don't mean to be rude, but you seem to be missing what a lot of folks are trying to tell you.

First off, it is extremely doubtful that your wife is ineligible for 245i relief. In order to qualify, your LC must have been filed before May 1st, 2001 and she needs to have been present in the US on December 22nd, 2000. Is this the case?

If not, you have wasted $1000.

Second, even if she was eligible for 245i relief, she didn't need to claim it. She might be eligible for 245k relief for a simply overstay of 1.5 months with no penalty fee.

Third, she might not be eligible to file an I-485 at all, since a person who enters under the VWP faces severe restrictions in what they can do in the US in terms of changing or adjusting status.

It is good that you are seeking alternate counsel, but your issue is not wether your wife can leave the US. I'm pretty certain that she can; you have bigger fish to fry, like wether she can file the I-485 at all, or wether your $1000 was completely wasted.
 
You cannot apply I-485 when you enter on Wavier Program

rmarzullo said:
but my wife has EAD and SSN card already. And her I-485 was filed, and the lawyer told us that she has to stay in US until her GC is approved, specially because I paid the $1000 fee for 245i relief for her being 1 1/2 month out of status.
Click to expand...

Getting EAD or AP neither guaranty you green card nor brings back her status.

Since she was entered here on VWP she needs to go outside US and enter using consular process. If her country’s consulate accepts, you can use attorney certified copies and bring her back within three to four months of time.

As TheRealCanadian mentioned she needs go out of use before she buildup 180 days of illegal stay which was started at the end of expiry of her visa.
 
Based on 245(i), one can actually file I-485 even having entered with VWP. The husband may be eligible for 245(i), the question is whether the wife is eligible for 245(i) since she entered after Dec 21, 2001. Can the wife, as a derivative beneficary, file I-485 based on the husband's eligiblity? If so, his lawyer could be right.
 
485

Well I agree, and disagree. Your lawyer is an idiot. You are eligible to file for permanent residence when entering on a visa waiver, only if it is based on marriage to a US Citizen or Permanent Resident.

In addition the law says you are eligle for Advance Parole with a pending I-485 so long as at the time of filng the 485 her overstay was less than 6 months.
 
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