Withdrawal of I-485 & I-130 before interview.. What options are left?

[Oby. 0]

Hello,

 

Last year I was on OPT and I decided to get married. I did AOS from F1 visa. I got my combo card and traveled with advance parole. 

 

However, I had my interview scheduled two weeks ago and my wife refused to show up. I reschedule the interview but then she sent a request to withdraw her I-130 by mail.

 

Before the letter arrived I went to USCIS in person and requested to withdraw my I-485 in order to avoid having a denial on record but I was planning to do a master program this fall. I want to go back to school and for that I will need to get a new F1 visa. However I am very worry I would get denied because I showed I had intent to immigrate with the previous I-485. Even though immigration officer are supposed to assess your intent to immigrate at the moment of applying. I have always maintain my status and never overstayed any of my visas. I will be divorce 6 months from now because of the required waiting period in California.

 

I have consulted an immigration attorney. He told me that it will be extremely challenging if not impossible to apply for the F1 visa because of my previous immigrant intent..

 

I was wondering what were your thoughts on this and if anyone any similar experience ? I know it's up to the immigration officer to approve the F1 and let me enter the country. I will be able to show the following to prove I no longer have intent to immigrate :

 

- Divorce papers
- I-485 & I-130 withdrawal notice
- Regular travel to home country I-94
- My status has always been maintained
- Never overstayed

 

I have strong ties to my home country (France), all my family is back home and I traveled at least once a year over there for a few weeks. My parents are also old (mother almost 70) and my dad (almost 90) last year when I just started the GC process got very sick. I was able to get an emergency advance parole travel document for 3 months I think that could also be helpful. I don't want to overstay because I want to have the freedom to travel to visit my family. 

 

The attorney I talked to told me the only solution for me would be to get married again but as you can imagine this isn't really what I would like to do and I can't see myself getting married again anytime soon. 

 

Thank you in advance for your help!

Edited May 26, 2019 by Oby.

[Roel 7,192]

4 minutes ago, Oby. said:

I have strong ties to my home country (France), all my family is back home and I traveled at least once a year over there for a few weeks. My parents are also old (mother almost 70) and my dad (almost 90) last year when I just started the GC process got very sick.

I'm sorry but those are not strong ties at all. There is always a chance for a new F1 visa, but with your history (AoS from F1 visa) and weak ties it's going to be pretty hard.

 

[Going through 5,671]

You have an uphill battle to climb:

 

-The withdrawal of the i-130 and subsequent i-485 denial happened only a couple of months ago...applying for another F1 visa in a short turnaround time is going to appear as though you are desperate to remain in the US.

-You really don't know what, if any, evidence accompanied the letter your wife sent to USCIS...for all you know, she also submitted a statement detailing you as a fraud/etc. when she withdrew the i-130.  This info would also be placed in your immigration file and can be used against you depending on what (if anything) she stated/submitted.

-Your elderly parents are not a tie back to your home country.  

-A previous divorce to a USC/divorce papers do not prove no intent to immigrate.

-You previously attempted to adjust status from a previous F1.  Automatic assumption will be that that's your plan again, unless you can overcome that assumption with strong ties abroad.

 

1 hour ago, Oby. said:

Even though immigration officer are supposed to assess your intent to immigrate at the moment of applying.

Immigration officers look at the totality of the situation/application in front of them.   There is nothing saying they cannot look backwards through a person's immigration history to get a full picture of the person applying.

 

 

Edited May 26, 2019 by Going through

[arken 4,197]

2 hours ago, Oby. said:

Hello,

 

Last year I was on OPT and I decided to get married. I did AOS from F1 visa. I got my combo card and traveled with advance parole. 

The moment you entered US on AOS AP, and not on OPT AP, you were no longer in F1 status, you stayed in pending AOS status. That means once the i485 is withdrawn, you have no legal status.

 

While you withdrew the AOS, it is on record that it was done only after your wife withdrew the i130. That proved you always had the immigrant intent.

 

It will be very difficult to get another F1 for sure.

Edited May 26, 2019 by arken

[Just Observing 34]

Simple answer is that it is possible but has a low probability. Do not be discouraged. You always followed immigration rules and the basis for your immigration intent (to live in marital Union with your wife) no longer exists so it is not unreasonable to surmise that your immigration intent died with the marriage.

 

Immigration intent like you pointed out is not a permanent condition. The hurdle you have however is that typically when a spouse fails to how up, there’s rightly or wrongly an assumption of fraud. Hopefully you have evidence to overcome that.

 

 You start accumulating illegal presence immediately the petition  withdrawal is/was approved so you have to act fast and leave before applying for your F1 visa from abroad. Don’t try a change of status from inside the USA. Do a visa application from abroad.

 

Keep your head up and think positive, don’t give up your dream of an American MSc because of this snafu. You have little to lose by applying. If you can take a couple years break and work between degrees before applying too would be great.

Edited May 26, 2019 by Just Observing

[Crazy Cat 41,904]

7 minutes ago, Just Observing said:

so it is not unreasonable to surmise that your immigration intent died with the marriage.

Couples reconcile frequently........but I applaud you for the encouragement. 

[carmel34 3,635]

Don't jeopardize future visits to the US by overstaying.  Go back to France as soon as you can, there are lots of good grad programs there or in other European countries you can travel to freely.  So sorry that your marriage ended but make the best of it and go back home, if your strong ties to France are really as strong as you say they are, you will go home now.  You have no legal status anymore so you are now overstaying.

[Oby. 0]

14 hours ago, Going through said:

You have an uphill battle to climb:

 

-The withdrawal of the i-130 and subsequent i-485 denial happened only a couple of months ago...applying for another F1 visa in a short turnaround time is going to appear as though you are desperate to remain in the US.

-You really don't know what, if any, evidence accompanied the letter your wife sent to USCIS...for all you know, she also submitted a statement detailing you as a fraud/etc. when she withdrew the i-130.  This info would also be placed in your immigration file and can be used against you depending on what (if anything) she stated/submitted.

-Your elderly parents are not a tie back to your home country.  

-A previous divorce to a USC/divorce papers do not prove no intent to immigrate.

-You previously attempted to adjust status from a previous F1.  Automatic assumption will be that that's your plan again, unless you can overcome that assumption with strong ties abroad.

 

Immigration officers look at the totality of the situation/application in front of them.   There is nothing saying they cannot look backwards through a person's immigration history to get a full picture of the person applying.

 

 

It's not a denial. I have request to withdraw in person my I-485 before my wife withdrew her I-130. I asked the officer and he told me it was withdraw and not denied. Also, he told me I still have a legal presence until I would receive the notice of withdrawal from USCIS. It takes a couple of months to receive it. I was planning to leave in august and come back in January under F1. I know it will be super hard if not impossible to come back under F1 but beside getting married again I don't see another solution. 

 

13 hours ago, arken said:

The moment you entered US on AOS AP, and not on OPT AP, you were no longer in F1 status, you stayed in pending AOS status. That means once the i485 is withdrawn, you have no legal status.

 

While you withdrew the AOS, it is on record that it was done only after your wife withdrew the i130. That proved you always had the immigrant intent.

 

It will be very difficult to get another F1 for sure.

 

I withdrew before my wife. 

 

11 hours ago, Just Observing said:

Simple answer is that it is possible but has a low probability. Do not be discouraged. You always followed immigration rules and the basis for your immigration intent (to live in marital Union with your wife) no longer exists so it is not unreasonable to surmise that your immigration intent died with the marriage.

 

Immigration intent like you pointed out is not a permanent condition. The hurdle you have however is that typically when a spouse fails to how up, there’s rightly or wrongly an assumption of fraud. Hopefully you have evidence to overcome that.

 

 You start accumulating illegal presence immediately the petition  withdrawal is/was approved so you have to act fast and leave before applying for your F1 visa from abroad. Don’t try a change of status from inside the USA. Do a visa application from abroad.

 

Keep your head up and think positive, don’t give up your dream of an American MSc because of this snafu. You have little to lose by applying. If you can take a couple years break and work between degrees before applying too would be great.

 

Thank you so much for the encouragements. I know everything seems to be against me and even attorneys are telling me that it will be an uphill battle. It's not officially withdraw yet until I receive the notice of withdrawal from USCIS. This was confirmed by a supervisor when I went to the office before requesting to withdraw. 

 

11 hours ago, missileman said:

Couples reconcile frequently........but I applaud you for the encouragement. 

 

Well if I am officially divorced that's kind of putting an end on the reconcilement

. 

7 hours ago, carmel34 said:

Don't jeopardize future visits to the US by overstaying.  Go back to France as soon as you can, there are lots of good grad programs there or in other European countries you can travel to freely.  So sorry that your marriage ended but make the best of it and go back home, if your strong ties to France are really as strong as you say they are, you will go home now.  You have no legal status anymore so you are now overstaying.

 

I am not overstaying yet. That's why I am looking to see what my options are before being out of status and jeopardizing my future in the U.S. 

 

Thank you all for your responses. I have to think what I am going to do now.

 

Doesn't the CO has to give me a reason to be denied under U.S law? What could it be ?

Edited May 27, 2019 by Oby.

[Just Observing 34]

7 hours ago, Oby. said:

Doesn't the CO has to give me a reason to be denied under U.S law? What could it be ?

They have to give you the reason, and they will. The reason is the petitioner (your ex) has withdrawn her petition. It’s very simple. Without a petitioner, the petition falls by itself. You cannot self petition.

 

Also you’re correct, you don’t start accumulating illegal presence until the date when USCIS makes the formal decision to deny your application. However at this point that’s a formality since your petition is no longer approvable. Also sometimes it takes a while before you get the notice, and the date on the notice is what is binding, not the date you receive it meaning you would be accumulating illegal presence even before receiving it.

 

Right now the chances of being able to adjust status in the USA are slim and none. The important fight right now is to just make sure USCIS does not classify your marriage as a sham marriage. You have to fight back if they attempt to do so.

 

If you’re going to apply for visa in the future, it’s important you keep your immigration history clean and leaving before accumulating significant illegal presence would be in line with maintaining that record.

 

There’s really nothing more to gain from an anonymous online forum. All the best.

Edited May 27, 2019 by Just Observing

[Zoeeeeeee 797]

Only thing I wanted to add to this was re the divorce being completed in 6 months...if you’re lucky, it will be. My fiance’s divorce in California took 21 months to complete...unfortunately, they’re not the quickest state and the process is lengthy, drawn out and difficult often...

[Oby. 0]

14 hours ago, Just Observing said:

They have to give you the reason, and they will. The reason is the petitioner (your ex) has withdrawn her petition. It’s very simple. Without a petitioner, the petition falls by itself. You cannot self petition.

 

Also you’re correct, you don’t start accumulating illegal presence until the date when USCIS makes the formal decision to deny your application. However at this point that’s a formality since your petition is no longer approvable. Also sometimes it takes a while before you get the notice, and the date on the notice is what is binding, not the date you receive it meaning you would be accumulating illegal presence even before receiving it.

 

Right now the chances of being able to adjust status in the USA are slim and none. The important fight right now is to just make sure USCIS does not classify your marriage as a sham marriage. You have to fight back if they attempt to do so.

 

If you’re going to apply for visa in the future, it’s important you keep your immigration history clean and leaving before accumulating significant illegal presence would be in line with maintaining that record.

 

There’s really nothing more to gain from an anonymous online forum. All the best.

Thank you! I do have evidence it was a bona fide marriage in case they attempt to do so. 

 

13 hours ago, Zoeeeeeee said:

Only thing I wanted to add to this was re the divorce being completed in 6 months...if you’re lucky, it will be. My fiance’s divorce in California took 21 months to complete...unfortunately, they’re not the quickest state and the process is lengthy, drawn out and difficult often...

 

I am not doing the regular divorce process which indeed can take much longer especially if one party is fighting it.. I am doing summary of dissolution which is a much easier process. It's only one form (FL-800) and the other form FL-825 is filed out by the court. But I appreciate your input! 

[Oby. 0]

On 5/26/2019 at 2:14 AM, Roel said:

I'm sorry but those are not strong ties at all. There is always a chance for a new F1 visa, but with your history (AoS from F1 visa) and weak ties it's going to be pretty hard.

 

 

On 5/26/2019 at 3:33 AM, Going through said:

You have an uphill battle to climb:

 

-The withdrawal of the i-130 and subsequent i-485 denial happened only a couple of months ago...applying for another F1 visa in a short turnaround time is going to appear as though you are desperate to remain in the US.

-You really don't know what, if any, evidence accompanied the letter your wife sent to USCIS...for all you know, she also submitted a statement detailing you as a fraud/etc. when she withdrew the i-130.  This info would also be placed in your immigration file and can be used against you depending on what (if anything) she stated/submitted.

-Your elderly parents are not a tie back to your home country.  

-A previous divorce to a USC/divorce papers do not prove no intent to immigrate.

-You previously attempted to adjust status from a previous F1.  Automatic assumption will be that that's your plan again, unless you can overcome that assumption with strong ties abroad.

 

Immigration officers look at the totality of the situation/application in front of them.   There is nothing saying they cannot look backwards through a person's immigration history to get a full picture of the person applying.

 

I made some research... just to clarify a few things. My family back home are strong ties to my home country. And yes the CO has to look at the "immigrant intent" at the time of applying. Below quote from the Bureau of Consular Affairs : 

 

Quote

What are considered strong ties to my home country?

Ties are the various aspects of your life that bind you to your home country. Strong ties vary from country to country, city to city, and person to person, but examples include:

• Your job;
• Your home; and/or
• Your relationships with family and friends.

While conducting visa interviews, consular officers look at each application individually and consider the applicant's circumstances, travel plans, financial resources, and ties outside of the United States that will ensure the applicant’s departure after a temporary visit.

 

Source : https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visa-denials.html

 

Quote

Section 214(b) of the Immigration and Nationality Act

 

(b) Every alien (other than a nonimmigrant described in subparagraph  or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15). An alien who is an officer or employee of any foreign government or of any international organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act, or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the United States as an immigrant unless he executes a written waiver in the same form and substance as is prescribed by section 247(b). 

 

Source : https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/waivers.html

 

Edited May 28, 2019 by Oby.

[Going through 5,671]

5 hours ago, Oby. said:

I made some research... just to clarify a few things. My family back home are strong ties to my home country.

Unfortunately, people leave their family back home all the time.  An example would be when the family you are saying is "strong ties" is the same family you left when you chose to stay and apply to adjust status from within the US before.  You mentioned elderly parents---spouse and children are generally a bit stronger ties back home.

 

No one is saying not to try, you're certainly eligible to apply of course.  

 

 

[Oby. 0]

2 minutes ago, Going through said:

Unfortunately, people leave their family back home all the time.  An example would be when the family you are saying is "strong ties" is the same family you left when you chose to stay and apply to adjust status from within the US before.  You mentioned elderly parents---spouse and children are generally a bit stronger ties back home.

 

No one is saying not to try, you're certainly eligible to apply of course.  

 

 

I didn't leave my family. Indeed, when I just filed my case for AOS which was received in June 28th my father became very ill in August. I requested a emergency advance parole travel document for humanitarian reason which was granted. I left the next day and stayed for 3 months. I also visited my family at least one to two months every year since I have been studying in the U.S.

 

I know it's subject to interpretation and I will have to convince the CO since it's up to him pretty much. The more I think about it the more I believe this is the only option I have as I do not want to lose the freedom to travel by overstaying.

 

Anyway thank you for your help. I will post an update regarding what happened in the future. 

[Going through 5,671]

Let us know how it goes, good luck.