Abandoned I-485

[visanw 0]

Here are the facts/dates:

12/30/04 Marriage to USC

12/12/05 VWP entry

08/30/07 Filed I-485

09/28/07 Received RFE

10/15/07 Traveled and returned using valid parole documents

03/15/08 I-485 denied without prejudice (abandonment; failure to respond to RFE)

Present since 3/15/08 with no departure or re-entry and no activity (no appeal, MTR, etc.) No notice to appear or other indication of removal proceedings.

Can we refile the AOS since the original I-485 was denied without prejudice or is alien ineligible for AOS because of the overstay since 3/15/08. Does it matter that original entry was under VWP?

I have spent hours on the forums and researching this issue and talking with lawyers and I cannot seem to find a clear answer. On the one hand, it seems that I should be able to just re-file the AOS; however, I have also been reading about denials of I-485 applications on the basis of overstays in excess of 180 days.

Can anyone point me in the right direction here?

Thanks!

[Darnell 8,478]

Yup, refile. Pay monies.

Will have big issue later for being out of status with the VWP thingie, as the AOS casefile was denied, the 'thing' that kept him/her in the USA whilst waiting for the processing to unwind.

If you'd like some face time, schedule an infopass appointment, talk to a Human.

[YuAndDan 153]

Origional entry was on VWP, they can deny the AOS with no chance to appeal, this right was given up when using VWP to enter the USA.

What further compounds this is the failure to respond to RFE.

The only option at this point is to file an I-130 for a spouse visa, and return to home country for a spouse visa interview, and perhaps be required to file an I-601 for waiver of bar placed for overstay.

Filing another AOS petition will just get another HARD-Denial, there is no appeal of denials of AOS from VWP.

I would be getting a competent lawyer involved.

Moving this to AR forum...

[visanw 0]

Thanks for your reply. That's what I was afraid of.

One follow-up question. Does ineffective assistance of counsel help at all? The original AOS was handled by an attorney who did not give any notice or advice of the RFE or the denial.

[Darnell 8,478]

ok you - time to shift to the big guns at http://www.immigrate2us.net

read all.

Good Luck !

[Myopia 93]

Here are the facts/dates:

12/30/04 Marriage to USC

12/12/05 VWP entry

08/30/07 Filed I-485

09/28/07 Received RFE

10/15/07 Traveled and returned using valid parole documents

03/15/08 I-485 denied without prejudice (abandonment; failure to respond to RFE)

Present since 3/15/08 with no departure or re-entry and no activity (no appeal, MTR, etc.) No notice to appear or other indication of removal proceedings.

Can we refile the AOS since the original I-485 was denied without prejudice or is alien ineligible for AOS because of the overstay since 3/15/08. Does it matter that original entry was under VWP?

I have spent hours on the forums and researching this issue and talking with lawyers and I cannot seem to find a clear answer. On the one hand, it seems that I should be able to just re-file the AOS; however, I have also been reading about denials of I-485 applications on the basis of overstays in excess of 180 days.

Can anyone point me in the right direction here?

Thanks!

####### shoot.

I would refile in the US and see which way the cookie crumbles. There is no appeal to a judge but seeing as ICE havent come to pick you up in three years, there is a good chance that they wont come to get you yet.

Did you get a letter that told you that you had to leave the US?

[Myopia 93]

####### shoot.

I would refile in the US and see which way the cookie crumbles. There is no appeal to a judge but seeing as ICE havent come to pick you up in three years, there is a good chance that they wont come to get you yet.

It will cost you $1500 to refile. This time if they send you a RFE make sure that you actually respond. Use infopass if you have concerns.

Leaving makes no sense when there is the ability to refile and your overstay will not be problematic depending where you are. The problem may be in the denial.

I suggest you post in the Adjustment from Tourist Visa Forum. You are still in the US so may as well deal with the issue based on that.

AOS from tourist visa

[Sergi9 110]

Origional entry was on VWP, they can deny the AOS with no chance to appeal, this right was given up when using VWP to enter the USA.

What further compounds this is the failure to respond to RFE.

The only option at this point is to file an I-130 for a spouse visa, and return to home country for a spouse visa interview, and perhaps be required to file an I-601 for waiver of bar placed for overstay.

Filing another AOS petition will just get another HARD-Denial, there is no appeal of denials of AOS from VWP.

I would be getting a competent lawyer involved.

Moving this to AR forum...

Don't think you should go back to home country to incur a 10 year bar before talking to an Attorney who knows what the heck he is doing.

The LAST ENTRY was not a VWP entry it was a valid parole document. So .... maybe can AOS without the dreaded "VWP" issue cropping up.

[belinda63 3,033]

Very complicated situation. Yes the last entry was with AP which was dependent on a pending AOS application. So would they consider this, it is not a visa? And would they allow the person to file a second AOS based upon the same circumstances as the first one was denied? Possibly since it was failure to respond to an RFE. Lots of unknowns here, I would suggest if they have the money give AOS a try, worst they can do is deny it.

[Myopia 93]

Very complicated situation. Yes the last entry was with AP which was dependent on a pending AOS application. So would they consider this, it is not a visa? And would they allow the person to file a second AOS based upon the same circumstances as the first one was denied? Possibly since it was failure to respond to an RFE. Lots of unknowns here, I would suggest if they have the money give AOS a try, worst they can do is deny it.

Nothing has changed for the OP. They are out of status so they should try to refile. There is no more "dreaded" VWP issue anymore. USCIS headquarters have given the go ahead to adjust those applications.