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Travel abroad while waiting for an green card interview

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  • Travel abroad while waiting for an green card interview

    I am a USC and my wife got the green card last year. Last spring she traveled back home and brought her son for summer vacations to US. My step-son has a tourist VISA expiring a year from now. We decided not to take chances of him traveling, waiting for the immigrant VISA and kept him to stay with us in US and sent him here to school and I filed a I-485 and I-130 in winter. In January we received a bio-metrics appointment notice and had it done. 6 month passed by and we still waiting for a Green Card interview.
    Question: considering that the kid still has foreign passport with valid US tourist VISA - is it safe to send him for summer vacation to grand parents ?

  • #2
    There are several things wrong with your planning:

    1. His attendance in public school while on a B2 visa violates the terms of his visa and the school attendance is technically disallowed.
    2. By sending him outside the U.S. with the expectation that he can return with his visitor visa risks his being barred from entry when attempting to return, since he has already "expressed intent to immigrate" by having an active Adjustment procedure in place.

    You will probably be okay if you don't allow him to leave until he has his Green Card, or perhaps even the Advance Parole (assuming you did include an I-131 when submitting the I-485 package).

    --Ray B

    Originally posted by moishap View Post
    I am a USC and my wife got the green card last year. Last spring she traveled back home and brought her son for summer vacations to US. My step-son has a tourist VISA expiring a year from now. We decided not to take chances of him traveling, waiting for the immigrant VISA and kept him to stay with us in US and sent him here to school and I filed a I-485 and I-130 in winter. In January we received a bio-metrics appointment notice and had it done. 6 month passed by and we still waiting for a Green Card interview.
    Question: considering that the kid still has foreign passport with valid US tourist VISA - is it safe to send him for summer vacation to grand parents ?

    Comment


    • #3
      Thank you, Ray. I suspected that. The sad thing is that I skipped the I-131, assuming that being a minor child, he'll get the green card in no-time. Are we still in violation with VISA rules if the I-485 package application was accepted ?

      Comment


      • #4
        Are you under the impression that your son's allowable B2 stay was good for more than a year, or that the visa itself would not expire until some time in the future, after a year or more?

        Allowable stays are usually given in periods of 3 or 6 months, sometimes 12 months, with one extension usually allowed. If the expiration date of your son's allowable stay is expired (not the visa expiration date, but the Port of Entry stamped expiration date), he is now a visa overstay, and leaving the U.S before he has his Green Card could immediatley implement a bar from reentry and abandonment of his Adjustment of Status procedure.

        --Ray B

        Originally posted by moishap View Post
        Thank you, Ray. I suspected that. The sad thing is that I skipped the I-131, assuming that being a minor child, he'll get the green card in no-time. Are we still in violation with VISA rules if the I-485 package application was accepted ?

        Comment


        • #5
          I was under the impression that once I filed for my step son's permanent residence and the application was accepted and we had bio-metrics done, the 6 month timer stopped. Am I wrong ?

          Comment


          • #6
            You're in a "gray area" of regulation interpretation.

            If on a K1 visa, one can use the Advance Parole to return to the U.S. after the 90-day visa period is up.

            But if on a B2 visa, even with the Advance Parole, if leaving the U.S. after the B2 visa stay date has passed, one has overstayed the visa. You are generally okay if remaining in the U.S. But if one travels outside the U.S. during processing, even with an Advance Parole, one risks the B2 overstay being reviewed upon attempted reentry to the U.S. It then becomes a discretinary decision of inspection officers to decide whether one is subject to "adverse adjudication," cancellation of the pending Adjustment procedure and voluntary departure from the U.S.

            The B2 "timer" is not "stopped" until one has a Green Card.

            --Ray B



            Originally posted by moishap View Post
            I was under the impression that once I filed for my step son's permanent residence and the application was accepted and we had bio-metrics done, the 6 month timer stopped. Am I wrong ?

            Comment


            • #7
              Originally posted by rayb View Post
              You're in a "gray area" of regulation interpretation.

              If on a K1 visa, one can use the Advance Parole to return to the U.S. after the 90-day visa period is up.

              But if on a B2 visa, even with the Advance Parole, if leaving the U.S. after the B2 visa stay date has passed, one has overstayed the visa. You are generally okay if remaining in the U.S. But if one travels outside the U.S. during processing, even with an Advance Parole, one risks the B2 overstay being reviewed upon attempted reentry to the U.S. It then becomes a discretinary decision of inspection officers to decide whether one is subject to "adverse adjudication," cancellation of the pending Adjustment procedure and voluntary departure from the U.S.

              The B2 "timer" is not "stopped" until one has a Green Card.

              --Ray B
              Is there any example a person with B2 visa that is denied entry with advanced parole? As long as they are admissible, with no criminal records?

              Comment


              • #8
                There's one way to find out. I know of several people who were not allowed back in the U.S. with B2 visas after having left during I-485 processing.

                --Ray B

                Originally posted by bandk View Post
                Is there any example a person with B2 visa that is denied entry with advanced parole? As long as they are admissible, with no criminal records?

                Comment


                • #9
                  Originally posted by rayb View Post
                  There's one way to find out. I know of several people who were not allowed back in the U.S. with B2 visas after having left during I-485 processing.

                  --Ray B
                  Did they have Advanced Parole?

                  Comment

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