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Can I leave the country for a home emergency on advance parole without triggering the 10-year bar?

Chicago, IL |

I entered the country on J-1 but overstayed my visa for over 3 years before marrying my husband and applying for change of status. Now the case has been pending for 2 years (the USCIS reply is "delay because of the large amount of background checks") and I was told I cant go and see my parents because it will automatically trigger the 10-year bar. I just recently had a consultation with an immigration attorney who told smth very different - that I can leave and come back into the US on advance parole because my only status was J-1. The DS-160 doesnt have an expiration day and subsequently doesn't trigger the 10-year rule so I can go ahead and apply for I-131. Is it so? it is completely opposite to what I have been told all these two years so I am scared to proceed...

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Attorney answers 5

Best Answer
Posted

If you were admitted for duration of status (annotated as D/S) on your I-94 card, you have not been accruing unlawful presence time following the overstay, as long as the USCIS and/or an Immigration Judge has not made a formal determination that you are out of status. This is based on four USCIS policy memoranda and perhaps a Department of State Cable. The USCIS was supposed to issue regulations on this several decades ago, but it has not.

Unlawful presence and being out of status are two separate legal issues. To become subject to the 10-year bar, you must accrue over 365 days of unlawful presence time. The 10-year bar attaches when one, who as accrued over 365 days of unlawful presence time departs the United States. In your case, assuming the USCIS and an Immigration Judge has not made a determination that you are out of status, you would not be subject to the 10 year bar.

All of this said, we always recommend that individuals not travel in this situation unless it is a burning emergency, just in case something goes wrong at the port of entry.

You have an adjustment of status application pending. If you depart prior to receiving the advance parole travel document, your application would be deemed abandoned. The advance parole travel document and employment authorization document (no issued on a combination card) usually take 50-60 days to issue.

I also think that your adjustment of status application it taking way too long.

This is a complicated area of the immigration law. I recommend you consult with a lawyer that has specific experience in J-1 matters. That lawyer can help further explain the 10 year bar and its relation to ULP and duration of status. That lawyer can also try to help get your adjustment of status application back on track.

Brian Schmitt
Hake & Schmitt
Attorneys at Law
P.O. Box 540 (419 Main St.), New Windsor, Maryland 21776
Phone: 410-635-3337
http://www.hake.com/pc/

Required Disclaimer: This information is generalized and should not be relied upon as legal advice; and this communication does not create an attorney-client relationship.

Posted

Regardless of the type of visa, if the visa expired and you were out-of-status, advance parole will not prevent the 10 year bar. Do not leave the USA until you have your green card.
The background check should not be taking so long. I suggest you retain an experienced immigration attorney to deal with this. You should have had your green card 18 months ago.

Posted

I agree with my colleague, you should NOT leave the US, until you have the green card in hand (or I-551 stamped in passport).

I understand how difficult it must be, but you need to hang in there and wait.

Law Office of Marc Taylor, Esq. PC, www.usavisanow.com, 888-645-6272, info@usavisanow.com , 224 W. 4th Street, Suite 200, New York, NY 10014 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

Posted

If you are skeptical about what might happen you should not travel. You can also contact another attorney experienced in immigration who could competently address all these issues for you once you share all the specific information which is lacking here. Best Wishes!
Lalita Haran
Attorney: Immigration Law
13295 Illinois St Ste 128
Carmel IN 46032
Ph: (317) 660-6174
www.haranlaw.com

Contact (317) 660-6174 for specific legal advice. Answers here are not legal advice because they are of general nature and not tailored to your specific situation. You should not act on this answer without checking with an Immigration Attorney.

Posted

You definitely consult an experienced immigration attorney. My immediate thought on seeing that you entered on J-1 visa and married a US citizen normally requires a waiver from the J visa requirement that you must return to your home country for 2 years. Although marriage to a US citizen can forgive unlawful presence, I highly recommend against applying for advance parole.

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