Extremely complicated i485 issue. Please give some advice!

[485help402]

Hello this will be a long post so sorry for the length but I have an annoyingly complicated situation regarding my wife and her i485 and i130 application, I’m the U.S citizen, I will start from the beginning.

My wife and I met online and she came over to visit me and her family on a tourist visa(she is from Guyana). I decided to propose to her then and there and I did some research saying it would be ok for her to stay so I married her and applied for an adjustment of status, it gets accepted no problem and we were waiting on an interview date. Here’s where the complications start, suddenly before her advanced parole came in her mother had a stroke and she had to go see her, we didn’t know about advance parole rules and didn’t realize that we would be forfeiting the application. So she goes and since her tourist visa had expired we decided to just live in Guyana for a couple years until we get it all figured out. We believed a denial for her application was imminent, however instead we received an approved advance parole card and an interview date at our American address.

Thinking there was just a mistake and a delay in the denial and with the advice that if she were denied because of leaving when we tried to come back with the card that she would not have a status to reapply with because of the expired tourist visa. We decided we should just stay put and since the interview was close, I decided instead of sending a withdrawal of the application, I would just let us miss the appointment hoping for a denial of the i485 and an approval of the i130 so that I could then send in an i824(I believe) and switch to consular processing in Guyana. But that’s not what happened, not only have we not been denied even a year after we have left, they set up another interview date even though we already missed it the original without notice. Further delaying the process, not only that it has been a year and a half since we sent in the i130 and there is no answer on that either. I believe they are trying to decide on both applications at the same time even though they are supposed to be separate, making this process even longer as they still haven’t denied us when they were supposed to. So now I wanted to ask, should we go to the embassy here in Guyana and see if it’s possible to just go ahead and go back( if we can even get in) with the parole card and see if we can apply again even with her out of status with the help of a lawyer, if not, should I send in a withdrawal only for the i485 or should I just end this whole thing by withdrawing both applications and start back new so that no more delays and confusion occurs. Sorry for the long post, this situation has really done my head in. Thanks for any advice.

[newacct]

I agree the AOS (I-485) was automatically abandoned when she left without AP. Her AP should not have been issued, and, even though it is issued, it should not be valid since the AOS it is based on is abandoned. If she travels to the US with the AP (assuming it is still unexpired), the officer should in principle deny her entry. But if somehow the officer does parole her in, then technically she can file AOS again, since she was "admitted or paroled". Being out of status does not affect AOS in her category.

[485help402]

I understAnd what your saying, however the AOS is not abandoned, people were telling me this a year ago when I posed the same question. However I called both uscis and the border to ask about what would happen and since the application is not abandoned as all these people are making updates to the application for well over a year without denying it. So please assume that it is not abandoned, because worst case we just go back to Guyana I am just wondering whether going to America and most likely getting denied is a big problem if she has no active visa, do all I have to do is reapply the aos application? Does her not having an active status to reapply with not pose a problem or is her being paroled in technically making her legal. I know people say that her being paroled on a aos that is supposed to be abandoned makes the parole mute, but if it is in fact not abandoned, and she is paroled, then there shouldn’t be a problem?

[485help402]

But let me pose the real question, should I just forgo this headache and withdraw both applications and start a new i130 or spend a lot of money and take the risk to get in year sooner. I’m highly inclined to go with the first option because it clears up this mess and staying another 1-2 years in Guyana is not that big of a problem. Thanks

[robec]

But let me pose the real question, should I just forgo this headache and withdraw both applications and start a new i130 or spend a lot of money and take the risk to get in year sooner. I’m highly inclined to go with the first option because it clears up this mess and staying another 1-2 years in Guyana is not that big of a problem. Thanks

From my understanding, when you apply for I-485 and I-130 they do process these together as a package. So they most likely will not update your I-130 by itself.
It would make a lot more sense to withdraw the I-485. Have you spoken to USCIS about withdrawing the I-485 but not the I-130?

Now the reason, I assume, that they do not consider your case abandoned *yet*, is just simply because USCIS does not know you left. But every rule states that your case is indeed abandoned, USCIS just doesn't know it yet. I would definitely treat it as such because any future paperwork would be invalid if it is connected to the I-485.

If you would get in with your EAD card, as soon as USCIS found out you left before you had this card, they will deny you anyway because an important rule has been broken. And the only way they wouldn't find out you left would be to try and cover it up but that of course is never a good idea with USCIS .

[485help402]

The only reason I want to withdraw both is because who knows it will take for them to take another look at the i130 on it’s own as well as the fact that I would still have to do a i824 to transfer it to consular processing which also takes just as long as a i130 if started again and would save me the headache of their possibly being problems with the transfer to consular processing’s

[newacct]

I understAnd what your saying, however the AOS is not abandoned, people were telling me this a year ago when I posed the same question. However I called both uscis and the border to ask about what would happen and since the application is not abandoned as all these people are making updates to the application for well over a year without denying it. So please assume that it is not abandoned,

It is abandoned because the regulations say so. 8 CFR 245.2(a)(4)(ii)(A) says that someone who leaves while AOS is pending automatically abandons AOS, unless they were previously granted AP, or had H1b/H4/L1/L2/K3/K4/V status before leaving. It is not for anyone to "assume". Just because the government doesn't know it's abandoned doesn't mean it's not abandoned as a matter of law.

because worst case we just go back to Guyana I am just wondering whether going to America and most likely getting denied is a big problem if she has no active visa, do all I have to do is reapply the aos application? Does her not having an active status to reapply with not pose a problem or is her being paroled in technically making her legal. I know people say that her being paroled on a aos that is supposed to be abandoned makes the parole mute, but if it is in fact not abandoned, and she is paroled, then there shouldn’t be a problem?

Again, not being in status is not relevant for AOS in her category. As long as the person lets her in, she is admitted or paroled. Even if she had no visa or AP and they let her in by mistake, that still counts as being admitted or paroled.

[485help402]

Ok thanks, I decided to not deal with all that and just withdraw the i485 and let them hopefully approve the i130 and just file i824 for them to send it to consular processing. Here is the reason I put in the letter, please let me know if you think it is fine, thanks again!

Reason: My wife(name here) and I (name here) have left the United States before her Advance Parole document was approved and therefor have reason to believe that the Adjustment of Status application is supposed to be abandoned and for some reason has not been. This is causing a delay in our I-130(Petition for Alien Relative) to be given a decision and we would like to withdraw the I-485 so that we can get a decision on the I-130, and then file I-824 to transfer the application to consular processing. Sorry for any confusion, Thanks.

[DD1992]

Did you fly out of the US or did you exited through a land border? Because the land border does not catch what day you exited, and also please have a look on your I-94 records if that got updated. If no information is there you could consider doing the adjustment of status interview and see what they say.

[azblk]

When you filed your wifes i-485 was she still in status? I ask because if she was out of status for more than 180 days then she is be subject 3/10 bans.

[NYC/She]

Exactly.