Question:
I recently became a US Citizen.
My wife came to the US almost a
year ago on B-2 visa. At the time
of her entry she was allowed to
stay in the S for 6 months. In November
last year we filed for extension
of her visa for another 6 months
hoping that in the meantime I would
be able to become a US citizen.
In February 2003 we received a second
NOA from BCIS (the first one was
the receipt) asking for some more
evidence that would support the
petition for extension of stay.
The NOA also
stated that all requested documents
must be received on or before May
19th, 2003. Since at that time we
received the second NOA my citizenship
process was almost completed, we
decided not to send any supporting
documents for extension of stay.
On May 17th, 2003 we filed via mail
for Adjustment of Status for my
wife with BCIS office in Miami.
Now, I am wondering if she's here
legally or not.
So here are
the key questions that are bothering
me:
1. what is
actually the status of my wife?
2. Is she/was
she out of status?
3. If she
is/was out of status, then for long?
The reason
I am asking all these questions
is that my wife has just filed in
person for Advance Parole and a
lady at BCIS office she spoke to,
told my wife that she currently
has no status, because she does
not have a greencard and her petition
for extension of B-2 Visa was not
completed. She even had to sign
a document stating that she is currently
out of status and if an AP is granted,
she cannot leave the US for more
than 180 days. All this sounds strange
to me, because I was under the impression
that she was not out of status,
because we filed for AOS 2 days
prior to the deadline for submission
of requested documents for B-2 extension.
My wife tried
to argue using the same reasoning,
but the lady at BCIS got upset and
basically the whole conversation
can be summarized in the following
words: "look, you either sign it
now, or forget about traveling until
you get the green card". So my wife
signed that form. Now, I am wondering
if that could complicate our vacation
plans? The last question which I
guess summarizes the whole story:
assuming that my wife will get the
Advance Parole and that she will
go overseas for a few days, what
is the risk that she will not be
admitted to the US on her way back?
We planned to travel overseas in
a few weeks, but if there is any
risk that she will not be admitted
to the US, then definately we're
going to stay here. So please also
advise if my wife should travel
overseas using the Advance Parole.
Answer:
It sounds like you need to consult
with a good immigration lawyer in
Miami. Until you can confirm 140%
that your wife has not been out
of status for 180 days or more,
she should not under any circumstances
leave the US even if she is granted
advance parole. I believe that is
where the 180 days comes in that
the BCIS employee was talking about
or perhaps your wife misunderstood.
If she has been out of status for
that length of time she would be
banned from re-entry for 3 to 5
years. I was under the impression,
as you, that having filed for an
extension of her tourist visa meant
that she remained in status until
the decision was made one way or
the other.
I don't know
what happens since you aborted the
decision making process with the
BCIS by not returning the requested
documentation. Before she leaves
the US if she is granted A/P, have
a consultation at least with a good
immigration attorney in the Miami
area. They must be hundreds of them.
Why would it not be acceptable?
A personal referral by someone that
has used an immigration attorney
and found them to be worth their
weight in knowledge is priceless.
But in the Miami area I'd go to
Tammy Fox-Isicoff of Rifkin & Fox-Isicoff,
P.A.. I believe that she is a good
attorney and have found her to be
a nice lady to boot. I also believe
that if the application for the
extension is deemed to be frivolent
then the date from which the applicant
is considered to have been out-of-status
is the date of expiry of the orignial
I-94.
