AOS application pending but spouse filed for Divorce

[ashokbangia 0]

Hello,

I need some advise from members.

I entered the US on a K-1 Fiance visa and subsequently married my fiance within 90 days. Soon after I filed my adjustment of status application along with EAD and AP. Unfortuntely, we started having problems and my spouse filed for divorce. I returned back home (Canada) but was informed by USCIS that I was scheduled for an interview (which I missed as my spouse didn't inform me). I do not have any intentions of staying in the US nor do I wish to pursue my application with the USCIS. Do I need to inform them and not going for the interview will raise red flags? I do however would like to visit the US for holiday and I am wondering given my situation can I do that. I am a canadian citizen. I did get my approval for AP and EAD. Please advise what is the best route to take in this situation. Thank you all for your help!

[TracyTN 237]

I would send USCIS a letter and let them know you've split and you're no longer pursuing permanent residency as you've returned to Canada. Just better to tie things up in case you want to visit the US again - not that they would stop you, per se, but it's better to clarify the situation. Keep a copy of the letter you send and bring that with you the next time you visit as well.

All the best to you!

[ashokbangia 0]

I would send USCIS a letter and let them know you've split and you're no longer pursuing permanent residency as you've returned to Canada. Just better to tie things up in case you want to visit the US again - not that they would stop you, per se, but it's better to clarify the situation. Keep a copy of the letter you send and bring that with you the next time you visit as well.

All the best to you!

[ashokbangia 0]

Thank you for your reply. In the meantime while the letter is pending can I travel to the US to visit family and friends? Not going for the interview and returning home as I did not have a place to live considered "abandoning" my status? Please advise.

Thank you

[JimVaPhuong 4,863]

Thank you for your reply. In the meantime while the letter is pending can I travel to the US to visit family and friends? Not going for the interview and returning home as I did not have a place to live considered "abandoning" my status? Please advise.

Thank you

It's hard to say. You're not a regular visitor from Canada right now because you have status pending with USCIS. Normally, you would be readmitted based on your advance parole, but if you send a letter notifying USCIS that you are withdrawing your AOS application then your advance parole would be canceled. That pretty much leaves it up to the discretion of the CBP officer to determine on what basis to either admit you or deny admission. They could admit you as a regular visitor from Canada. They could deny admission because you're still married to a US citizen, which can be interpreted as an indicator of immigrant intent.

I honestly have no idea what would happen if you tried to enter the US.

[ashokbangia 0]

That puts me in a dilemna. Should I inform USCIS of the situation at this time or wait until the divorce is finalized? The divorce is still pending. Do I face any consequences if I do not inform USCIS?

[JimVaPhuong 4,863]

That puts me in a dilemna. Should I inform USCIS of the situation at this time or wait until the divorce is finalized? The divorce is still pending. Do I face any consequences if I do not inform USCIS?

I missed something in your first post. You missed your AOS interview. This means your AOS has already been denied, and your AP has been cancelled. You no longer have any status in the US. Was your exit from the US recorded by CBP? If not then you should take steps to ensure that your exit is properly recorded. Otherwise, they'll think you're still in the US and accumulating overstay time.

https://help.cbp.gov/app/answers/detail/a_id/752/~/how-to-record-departure-from-the-united-states-after-the-fact

Since you missed your interview there is nothing for you to withdraw. However, you should notify USCIS that you left the US before your interview, that your marriage is ending in divorce, and that you do not intend to seek a green card based on this marriage. If you can get your case status closed with USCIS then you should be able to visit like any other Canadian.

[ashokbangia 0]

I missed something in your first post. You missed your AOS interview. This means your AOS has already been denied, and your AP has been cancelled. You no longer have any status in the US. Was your exit from the US recorded by CBP? If not then you should take steps to ensure that your exit is properly recorded. Otherwise, they'll think you're still in the US and accumulating overstay time.

https://help.cbp.gov/app/answers/detail/a_id/752/~/how-to-record-departure-from-the-united-states-after-the-fact

Since you missed your interview there is nothing for you to withdraw. However, you should notify USCIS that you left the US before your interview, that your marriage is ending in divorce, and that you do not intend to seek a green card based on this marriage. If you can get your case status closed with USCIS then you should be able to visit like any other Canadian.

[ashokbangia 0]

Great! Thank you so much for the response. I will be submitting a letter for the same.

One thing you mentioned about the departure from CBP. I travelled through air and on the website it mentions that if you travel by commerical air one doesn't need to take any action as it will be verified. So I don't need to take any action other than the letter at this time. Right?

Thank you once again for your prompt reply.

[JimVaPhuong 4,863]

Great! Thank you so much for the response. I will be submitting a letter for the same.

One thing you mentioned about the departure from CBP. I travelled through air and on the website it mentions that if you travel by commerical air one doesn't need to take any action as it will be verified. So I don't need to take any action other than the letter at this time. Right?

Thank you once again for your prompt reply.

Actually, it says it can be verified - not that it will be verified. All commercial carriers that are licensed to arrive and depart from US air and sea ports are required to submit a copy of their passenger manifest to the Department of Homeland Security. The purpose of this isn't for immigration, but to make sure that dangerous people are not trying to enter the US, and that wanted criminals are not trying to leave. Each commercial airline submits thousands of passenger manifests each year, and they aren't always accurate. We've had cases here on VJ where people bought round-trip tickets to enter the US with K visas because the round-trip ticket was cheaper than the one-way ticket. Of course, they didn't use the return ticket, but USCIS ended up denying their adjustment of status because the airline didn't update their manifest for the return flight, and DHS records indicated that the alien had departed the US on the day of their return ticket. Obviously, this isn't the same situation as yours, but somebody was sitting in that seat the day that airplane left the US, and neither the airline nor DHS knows who it was because the passenger manifest still listed the original passenger's name. If the seat you were assigned was originally assigned to someone else who either cancelled or didn't show up then it's possible that your exit was never recorded.

The bottom line is that neither USCIS nor CBP will actually look at the traveler records unless and until they need to. As the CBP website advises, keep your boarding pass as evidence you left the US when you did. CBP should be able to confirm your departure on that date through DHS records, presuming that the airline's passenger manifest was accurate.