Okay to travel w/ AP while AOS pending, if AOS was filed AFTER visa expired?

M

mson

New Member
Hello,

My wife entered the US legally with an O-1 visa. That visa expired in April of this year, and we submitted our AOS package (485, 130) in August. We also expedited our 131 to obtain an advance parole document, which has been approved and is now in hand. My wife needs to travel out of the country for 1.5 months in September and October, and from all of our online research and after making an infopass appointment to speak with a USCIS rep, it appears that my wife SHOULD be able to travel out of the country and return using the AP. I understand that the AP is not a guarantee of admittance, etc. etc., but this is at least the intent of the AP, right?

Well, I of course had to obtain a second opinion from an attorney, and he advised me strongly that my wife should NOT travel. He stated that the fact that we submitted our AOS application AFTER my wife's visa expired means that there is a high chance that the customs officer may just choose not to permit reentry. Is this true?? Again, I understand that on the AP document itself it states that there is no assurance that my wife would be allowed in using the AP. But is the risk that high and the chance for refusal of entry that great???

Any insights and opinions would be greatly appreciated, thank you!
 
First of all, when the "visa expired" is not relevant. Visa is only for entry to the U.S. After you're in the U.S., the visa is irrelevant. It's the date on the I-94 that is relevant. I assume when you said "visa expired" you really mean "I-94 expired".

It should be okay. The only concern related to the overstay is with inadmissibility due to the ban from unlawful presence. If there is 180 days or more of unlawful presence, then there is a 3-year ban upon departing the U.S. If there is 1 year or more of unlawful presence, then there is a 10-year ban upon departing the U.S.

Your wife had less than 180 days of unlawful presence (from when her I-94 expired to when she filed for AOS), so there is no worry with the ban. (And whether unlawful presence bans even apply to people who left and re-enter on advance-parole is doubtful due to the Matter of Arrabally decision.) So without worry about the ban, unless she has another type of inadmissibility (which she would have to worry about even if she didn't overstay), there should be no problems with leaving and re-entering.
 
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