AOS Interview...oh no

[Ccooper 0]

Ok, so my husband and I went to our immigration interview today. They questioned a few of our things, but when we left she said we were approved. Just got a phone call from the IO and said they received our application on Nov. 6, 2012. My husband left the US on Nov. 5th b/c his tourist visa was up and we knew it was illegal for him to be here. She is now looking into the departure and entry dates. She said this could be a problem if he was out of the country when the application was sent in. Does anyone know what could happen? Can he get deported? We tried to do the right thing, this has been a long process and we thought we had followed all the rules correctly. Any help would be great! Thanks

[Indguj 0]

Ok, so my husband and I went to our immigration interview today. They questioned a few of our things, but when we left she said we were approved. Just got a phone call from the IO and said they received our application on Nov. 6, 2012. My husband left the US on Nov. 5th b/c his tourist visa was up and we knew it was illegal for him to be here. She is now looking into the departure and entry dates. She said this could be a problem if he was out of the country when the application was sent in. Does anyone know what could happen? Can he get deported? We tried to do the right thing, this has been a long process and we thought we had followed all the rules correctly. Any help would be great!

Edited March 25, 2013 by Indguj

[Ccooper 0]

Thats the problem we are not approved yet...she is now in question of the legality of his travel out of the US. We are waiting for a phone call back from her. I am worried he is going to have to leave now.

[ValerieA 350]

Was your spouse outside of the US at anytime on or after November 6, before AP was received? If yes (and it sounds like he was), then your AOS should be denied, as this is really not allowed. However, all is not necessarily lost - once they deny it, refile. Do NOT let him leave the US this time, until he receives his actual green card.

This case may decide once and for all the intent debate on here - as he obviously did have intent when he entered this last time, as AOS had been filed. Thus, USCIS has solid proof of his intention to immigrate. Although the suspicion of intent can not be used to deny, some people believe that proof of intent can. I read the relevant section as even proof of intent can't cause a denial, BUT I COULD BE WRONG. I am not a lawyer. Although I do know some!

Edited March 25, 2013 by ValerieA

[belinda63 3,038]

You have no timeline filled out so I had to read your previous posts to understand what your situation is. Your spouse was here in the US when you filed the I-130 and I-485, is this correct? He left the US while the application was pending, is this correct? You can't file to adjust status if the spouse is not inside the US. When he left the country, since he did not have advance parole, he was considered to have abandoned his AOS application. Most likely the I-485 will be denied.

[ppihtr123 68]

So my read on the problem is if you are out of the country while submitting, the application goes through the NVC process and not the AOS process. If they consider they were out of the country while the app was in but before an AP was received, than the application is considered abandoned and you start over. Seems it could go ether way.

[Ccooper 0]

So my husband's tourist visa was up on Nov. 5th, 2012. The application had not been received by that date (we had no confirmation yet), so he left the country to make his visa not lapse (we thought that was the correct thing to do). On Nov. 6th, they said they received the application. He returned on Nov. 19th and hasn't left since.

[ppihtr123 68]

So my husband's tourist visa was up on Nov. 5th, 2012. The application had not been received by that date (we had no confirmation yet), so he left the country to make his visa not lapse (we thought that was the correct thing to do). On Nov. 6th, they said they received the application. He returned on Nov. 19th and hasn't left since.

I would think that the 130 gets approved but the 485 gets denied for ether not being in the country when you applied or for abandonment.

[Darnell 8,478]

So my husband's tourist visa was up on Nov. 5th, 2012. The application had not been received by that date (we had no confirmation yet), so he left the country to make his visa not lapse (we thought that was the correct thing to do). On Nov. 6th, they said they received the application. He returned on Nov. 19th and hasn't left since.

ya, tricky on the dates, but technically, he abandoned his AOS stuff.

maybe an IO (or THE IO) will have some pity on you two.

For now, wait two to three weeks, then inquire for casefile status again.

Good Luck !

Edited March 25, 2013 by Darnell

[Ccooper 0]

I would think that the 130 gets approved but the 485 gets denied for ether not being in the country when you applied or for abandonment.

So how do we refile, do we have to do the entire paperwork over, medical, and all that?

[ppihtr123 68]

So how do we refile, do we have to do the entire paperwork over, medical, and all that?

Yes if that is the final ruling. re do the 485 and supporting documentation, payment, etc.. For medical, you should just be able to go back to same doctor. remember to update travel dates and last POE.

[kzielu 1,149]

So my husband's tourist visa was up on Nov. 5th, 2012. The application had not been received by that date (we had no confirmation yet), so he left the country to make his visa not lapse (we thought that was the correct thing to do). On Nov. 6th, they said they received the application. He returned on Nov. 19th and hasn't left since.

So not only he abandoned his AOS but he returned on tourist visa with clear intent to immigrate committing visa fraud.

[Ccooper 0]

Yes if that is the final ruling. re do the 485 and supporting documentation, payment, etc.. For medical, you should just be able to go back to same doctor. remember to update travel dates and last POE.

But will he have to redo the medical, it was just done last month??

[ImmigrationDrama 0]

Was your spouse outside of the US at anytime on or after November 6, before AP was received? If yes (and it sounds like he was), then your AOS should be denied, as this is really not allowed. However, all is not necessarily lost - once they deny it, refile. Do NOT let him leave the US this time, until he receives his actual green card.

This case may decide once and for all the intent debate on here - as he obviously did have intent when he entered this last time, as AOS had been filed. Thus, USCIS has solid proof of his intention to immigrate. Although the suspicion of intent can not be used to deny, some people believe that proof of intent can. I read the relevant section as even proof of intent can't cause a denial, BUT I COULD BE WRONG. I am not a lawyer. Although I do know some!

You are absolutely right Valeri.Nothing wrong in what you wrote.

[ImmigrationDrama 0]

So my husband's tourist visa was up on Nov. 5th, 2012. The application had not been received by that date (we had no confirmation yet), so he left the country to make his visa not lapse (we thought that was the correct thing to do). On Nov. 6th, they said they received the application. He returned on Nov. 19th and hasn't left since.

Apply fresh....the previous application is void now....as he entered the US on B1/B2 on 19th nov.Who was the genius advising you to go back to India or to apply so damn late when you thought of AOS,if i may ask?