Urgent..Help! Left while AP pending

[Ashmine 2]

This is complicated. 

My husband left the country while his AP was pending due to a family emergency over the 4th of July weekend (we couldn't apply for an emergency waiver due to the holidays). 

He thought he could come back immediately because he has an unexpired AP/EAD card based on our original K1 (however, that card is based on a withdrawn 485...long story, but we reapplied immediately, so I don't believe he has any overstays) and because he has pending AP. 

Our attorney has advised he sit tight until his new card comes in. What he thought would be a few-day trip is turning into months and of course the AP process is dragging out (we're up to 79 days waiting and were just told it could be another 2-3 months). 
 

1. Can he come back now on his old card (it's expiring next week) with pending AP? 
2. Or is it best he wait for the new card? We've even asked the attorney if we should apply for a new visa (his expired and currently doesn't have one) and he said no.
3. Is this a situation where he can come into the country and we deal with it later, or will he be completely turned away?
4. Will it help if I come through customs with him?
   
   Any advice, solutions, are greatly appreciated. Hoping his heartfelt mistake doesn't turn into something long-lasting or permanent...Thank you. 

[KULtoATL 1,551]

I think he can only exit and re-enter with an approved AP. Right now, USCIS might consider him having abandoned his AOS?! 

[Coco8 1,042]

10 minutes ago, Ashmine said:

(we're up to 79 days waiting and were just told it could be another 2-3 months). 

It has been taking longer for people lately, more like 4 months.

[-Trinity- 513]

10 minutes ago, Ashmine said:

 

Our attorney has advised he sit tight until his new card comes in.

Did your attorney provide more information besides wait until the card comes in?
We received our AP's relatively fast so hopefully you will get it in the mail anytime soon.

[Dutchster 1,107]

Very confusing story. You have a valid AP based on your K-1 application?

[Ashmine 2]

@Beachlover no, unfortunately not. Trying to get some second opinions but every attorney I call is out on vacation this week. Ugh!

[zilchfox 296]

If the original I-485 is withdrawn, then the EAD/AP card is no longer valid, regardless of what the card says, as the validity of that card is ENTIRELY based on the PENDING I-485 until a decision has been made (in this case, withdrawal).

 

If he makes an attempt to come back, POE officers will see this in the system.  

 

I dunno...so far it sounds like the AOS was abandoned and you'll have to re-sponsor him as an IR-1/CR-1 to bring him back legally. 

[Ashmine 2]

@Dutchster no...he has a former AP based on a withdrawn 485. His K1 expired last year, we've been married almost two years.

[geowrian 22,338]

1. No. His old AP was due to a pending I-485 that is no longer pending. As such, it is now invalid.
2. Even if it arrives, he left the country without an approved AP. His AOS application will be deemed abandoned.
3. On what basis can he enter the country without a valid AP or visa?
4. You can try, but again...on what basis would he enter the country?

I could be wrong, but I think the attorney is hoping that AP will be issued because USCIS might not notice that he left the country yet. Then is hoping he can enter on that with CBP also not noticing / USCIS not recording his AOS as abandoned yet. This is sketchy at best and fraudulent at worst. The moment he left the US without a valid AP document, his abandoned his AOS application, and he needs a valid travel document to re-enter.

 

Assuming he has not accumulated 180 days or more in unlawful presence while he was in the US, he won't have a bar. As such, he can qualify for another visa (i.e. a CR-1/IR-1 spousal visa) without a waiver.

 

Just now, Dutchster said:

Very confusing story. You have a valid AP based on your K-1 application?

Unexpired AP* (still not valid if the I-485 was closed).

[-Trinity- 513]

3 minutes ago, Ashmine said:

@Beachlover no, unfortunately not. Trying to get some second opinions but every attorney I call is out on vacation this week. Ugh!

I'm so sorry, can imagine you're stressed out.  Hopefully there are other VJ members who have dealt with this and are willing to share their experience.

Edited August 3, 2017 by Beachlover
typo

[Dutchster 1,107]

It shouldn't be valid anymore, especially since he has a new pending one based on a new and pending I-485. If the USCIS notices he left the country, his application is considered abandoned and he cannot re-enter. 

[Ashmine 2]

@zilchfox and @geowrian ty both...this is solid advice and yikes. Not what I was hoping to hear at all. Do not want to wait up to a year to see my husband again waiting for a visa. :'(

[zilchfox 296]

4 minutes ago, Ashmine said:

@zilchfox and @geowrian ty both...this is solid advice and yikes. Not what I was hoping to hear at all. Do not want to wait up to a year to see my husband again waiting for a visa. :'(

Depending on the family emergency, it may have been tough for him not to leave but in most cases it's wise not to, however I also understand there are emergencies where one must risk their status regardless because the emergency is top-priority. Regardless, what's done is done. Since he left without AP, sending in a former AOS abdondonment may be best for the case, and then filing for CR-1/IR-1 to bring him back will be best. 

 

I personally think you need to fire your attorney, his suggestions are kinda shady. 

[Roel 7,193]

Looks like he won't be able to move to US for another year. That's the lengthy if the spouse visa process. 

[Coco8 1,042]

41 minutes ago, geowrian said:

1. I could be wrong, but I think the attorney is hoping that AP will be issued because USCIS might not notice that he left the country yet. Then is hoping he can enter on that with CBP also not noticing / USCIS not recording his AOS as abandoned yet. This is sketchy at best and fraudulent at worst. The moment he left the US without a valid AP document, his abandoned his AOS application, and he needs a valid travel document to re-enter..

Maybe he wants to check whether the AP was produced before he left and it is in the mail? Maybe that way they get lucky? But he has left for a month and no AP in the mail, so I doubt it, most likely the case was abandoned.

 

I guess this is another advantage of doing a IR1/CR1 visa rather than K1.

 

 

Edited August 3, 2017 by Coco8