Renetry without Parole

[Millie123 0]

I have an F1 visa.

I'm a Hong Kong resident and an Indian citizen.

I applied for immigration based on marriage to a US citizen, filing both I-130 and I-485. We had one interview with the USCIC. The officer gave us letters of intent to deny and an appointment a month later (on May 17th). Pending one missing form, which we have to take with us to this next interview on May 17th, he told us that the I-130 would be approved. The I-485 will have problems because of a past J1 visa 212e (which was erroneous but I still have to file for DOS review and then reapply).

I left the USA on April 9th without advance parole to attend to some personal urgent matter in India. Because of the urgency I did not apply for advance parole.

Just before leaving for the trip I realized the I-94 had been taken by the USCIS officer. I have a photocopy in my files.

Reading some of the online forums I understand that if I leave the country then the adjustment of status application is considered abandoned.

Should I postpone my ticket and apply for parole from here? Can I apply for parole after leaving the USA?

If I am not allowed back in- or if I do not go back now - can only my husband go to the May 17th interview to get our I-130?

Thanks for any advice to help sort out this situation.

[HateDistance 3]

Reading some of the online forums I understand that if I leave the country then the adjustment of status application is considered abandoned.

This is correct. Leaving the United States without either your AoS being completed or Advanced Parole indicates you've abandoned your application. I believe you'll have to file the whole thing again, although I'm not 100% sure on that.

[Hypnos 6,578]

As stated, your departure from the US without AP has abandoned your AoS application.

If / when the I-130 is approved, you can file an I-824 to request that USCIS send your approved I-130 to a foreign US post, officially changing your path from AoS to an immigrant visa.

[newacct 688]

Because of the urgency I did not apply for advance parole.

You know, you could have tried to apply for emergency advance parole.

[Millie123 0]

You know, you could have tried to apply for emergency advance parole.

I was ignorant, I should have done my research and/or consulted an attorney.

I actually only called the uscis helpline. I spoke to the official there and asked, if I have a valid J1 visa can I reenter, he said yes. Perhaps he misheard me, i don't know. I just went on the basis of that.

Now --

1) Can I apply for Parole AFTER I have left the country and get a friend to mail me the parole that arrives at my USA address? It seems a shame to waste the entire I-485 process.

2) When my husband attends the interview and gets approval for I-130 (as they told us we would get it in our first interview, we just had one document missing we had forgotten to attach) -- can he mail me the green card and I then return on a spousal visa?

3) Do I withdraw my 485, or let it be, since it is anyway "abandoned."

Thank you so much for your help.

I did not realize it was so detailed and complex, we thought it was a straightforward process.

I guess I have to get the help of an attorney, but perhaps knowing the answers to some of the above pretty basic questions will be of great help.

[Hypnos 6,578]

1) No - the I-485 is abandoned, which = dead.

2) No - the I-485 is the application for a green card from within the US, and since that is now abandoned then no green card will now appear.

3) This would probably be a good question for a lawyer.

As I said above, once your husband receives the approved I-130 notification, he can then file an I-824 to have the approved I-130 routed to the NVC (for pursuit of an immigrant visa) instead of remaining with USCIS (for the adjustment of status process). If I had to guess I would say you have another few months of waiting outside the US until the immigrant visa is in your hands.

You will enter the US on the immigrant visa which will automatically grant you a green card that will appear in the mail a few weeks later.

Edited April 13, 2013 by Hypnos

[Millie123 0]

My husband returned to the USA without me. The i-130 was approved.

The I-485 was denied because of a 212e restriction (so I have to get a waiver first, and reapply later).

The USCIS officer said (after checking with someone on a telephone) that I could reenter the USA to continue my studies since I had a valid F1 student visa, a non-immigrant visa.

After that, we got the formal I-485 denial letter which gave me notice to leave the USA since I was out of status (but I had already left).

And then we got a formal I-130 approval letter which says they have forwarded it to the NVC since the AoS was denied. It now looks like it is all set for consular processing, but I am planning to go back to continue my phD. I will not reapply for AoS right now as I will go back as a student.

[AnotherLostSoul 167]

Millie: I am a bit confused here. If you have filed for AOS, and stopped school, then your F1 visa is no longer valid, or rather, your SEVIS record has been terminated. So I don't think you can re-enter with your current F1 visa anymore. Also, I doubt you could reapply for a new F1 visa, since you have already showed "intent of immigration" while people who apply for F1 they sort of simply prove with evidences that they have no intention of immigration to the US, and once their studies are done, they intent to return back to ther home country. By filing I-130 (and I-485) you have already INTENDED to immigrate, so at this point, you will not going to get granted for a new F1 visa, or if you have maintained your full time student status, then they won't let you re-enter as a student anymore. The others are right, the only way you can enter back now is by an immigrant visa. And no, your husband cannot go alone to the interview anyway, it would be two of you if it was AOS process, but it is no longer AOS process. Your AOS process just went down the drain. Now you need to go through immigrant visa.

[Dave&Roza 748]

I have an F1 visa.

I'm a Hong Kong resident and an Indian citizen.

I applied for immigration based on marriage to a US citizen, filing both I-130 and I-485. We had one interview with the USCIC. The officer gave us letters of intent to deny and an appointment a month later (on May 17th). Pending one missing form, which we have to take with us to this next interview on May 17th, he told us that the I-130 would be approved. The I-485 will have problems because of a past J1 visa 212e (which was erroneous but I still have to file for DOS review and then reapply).

I left the USA on April 9th without advance parole to attend to some personal urgent matter in India. Because of the urgency I did not apply for advance parole.

Just before leaving for the trip I realized the I-94 had been taken by the USCIS officer. I have a photocopy in my files.

Reading some of the online forums I understand that if I leave the country then the adjustment of status application is considered abandoned.

Should I postpone my ticket and apply for parole from here? Can I apply for parole after leaving the USA?

If I am not allowed back in- or if I do not go back now - can only my husband go to the May 17th interview to get our I-130?

Thanks for any advice to help sort out this situation.

You have abandoned you I-485 application. Now that you are married to a USC and outside the US you must have your USC spouse file an I-130 spousal visa for you and begin the whole process while you remain outside the US. Once the I-130 petition is approved he will file the I-485 for you and then you will have an interview. You will arrive in the US on a CR-1/IR-1 visa and receive the GC after arrival. Unfortunately you will have to wait out the 9-12 month processing time while outside the US. You MAY be able to visit using a tourist visa, but you cannot stay and adjust your status.

Good luck,

Dave

Edited June 2, 2013 by Dave&Roza

[Darnell 8,479]

it's great the I-130 was sent on to NVC.

Maybe if your husband studies the LingChe shortcut in the wiki, and USES the stuff there, things will go fast for you, you might actually be in USA on an immigrant visa just in time to matriculate for the phD program.

Sure, it won't be as a F-1 visa holder, so plan for that, aye?

[mymarriagejourney 113]

I would do an AoS from the F1 visa.

[ValerieA 350]

Re-enter on your F-1, if it is still valid. Once you have done that, decide if you still want to adjust status, and re-file the I-485 (with the documents showing that your old J-1 was not subject to the 2-year home residency requirement).

And before everyone jumps on me that I am violating TOS, the mods have indicated previously that re-entering on an F-1 while intending to adjust is a "grey area".

If your F-1 is no longer valid, you are going to have to apply for a CR-1 visa from where you are. Since you already have an approved I-130, that should cut down your waiting time somewhat.

[Dave&Roza 748]

Re-enter on your F-1, if it is still valid. Once you have done that, decide if you still want to adjust status, and re-file the I-485 (with the documents showing that your old J-1 was not subject to the 2-year home residency requirement).

And before everyone jumps on me that I am violating TOS, the mods have indicated previously that re-entering on an F-1 while intending to adjust is a "grey area".

If your F-1 is no longer valid, you are going to have to apply for a CR-1 visa from where you are. Since you already have an approved I-130, that should cut down your waiting time somewhat.

IMHO, it is a grey area if you arrive on a F-1 visa, find someone, fall in love, get married and then file for AOS. The OP did that, but left before obtaining the proper documentation for him to return to the US. I see this like a K-1 visa holder leaving before obtaining AP or the GC. The OP HAD and approved I-130 that was filed in the US and then was going for AOS based on that I-130. Now I believe that the I-130 he filed is abandoned as it was filed within the US and he is now outside the US. For him to come to the US with the intent to immigrate on anything other than an immigrant visa, is in IMHO, visa fraud. I see this like someone on a tourist visa or the VWP entering the US to visit their USC spouse and then deciding to file for adjustment of status with using the tourist visa. YMMV.

Good luck to the OP and he may want to consult a good immigration attorney at this point,

Dave

Edited June 2, 2013 by Dave&Roza

[Darnell 8,479]

Dave - the OP clearly stated the I-130 is at NVC now. A CR-1 visa is chase-able, at this point. (see post #7 )

Edited June 2, 2013 by Darnell

[ValerieA 350]

IMHO, it is a grey area if you arrive on a F-1 visa, find someone, fall in love, get married and then file for AOS. The OP did that, but left before obtaining the proper documentation for him to return to the US. I see this like a K-1 visa holder leaving before obtaining AP or the GC. The OP HAD and approved I-130 that was filed in the US and then was going for AOS based on that I-130. Now I believe that the I-130 he filed is abandoned as it was filed within the US and he is now outside the US. For him to come to the US with the intent to immigrate on anything other than an immigrant visa, is in IMHO, visa fraud. I see this like someone on a tourist visa or the VWP entering the US to visit their USC spouse and then deciding to file for adjustment of status with using the tourist visa. YMMV.

Good luck to the OP and he may want to consult a good immigration attorney at this point,

Dave

Here is the post where I was schooled by the mods on entering on an F-1 while intending to immigrate being a "grey area": http://www.visajourney.com/forums/topic/423974-can-we-marry-on-an-f-1-visa/?p=6142131

I do not know how actually having filed the AOS affects the F-1 visa, though. If that immediately makes it null and void, then this is all academic.

The I-130 is not abandoned, the I-485 is. The I-130 remains valid.