Postponing my husband's green card application? Life is currently better abroad.

[J&J9293 0]

Hi All,

I am new to this forum but I am happy I am here. Back in 2016 my husband and I filed for a Green Card (i130 and i485 ) in Houston back in 2016. As I am sure some of you know the Houston USICS is notoriously slow, and it took a while before we heard ANYTHING. In the meantime I furthered my education and was offered a great gig internationally. While on parole my husband and I took the job and have been temporarily living internationally ever since (10 months now) . Recently we were called in for an interview to adjust his i485...but we actually don't live there/ The address in the states is my mothers. We have no current bills or property from the U.S. in our name, just the same address on our visas for our host country. Additionally, given economic climate in the states our prospects of financial upward mobility are higher abroad. While we don't want to abandon the states, or 'give up' our application, it is clear we have no desire to live there at the moment. We would still like ties to the U.S ( I still pay taxes) and perhaps in the distant future live there, but not currently. I am asking 1. Has anyone every 'paused' or with drawn an application? 2. Our interview coming up fast and we still want to go, but we are not quite sure what to say or do. 3. We would still love to visit family during the summer, my husband is South Korean so he can stay Visa free for up to 3 months, but if we withdraw or 'pause' would they barr him from entering even on vacation?

 

Thanks in advance?

[JFH 12,191]

He is not eligible for a green card if he has moved out of the country. The terminology is “Lawful Permanent Resident”. Without residency, there is no green card.  

[HRQX 4,145]

41 minutes ago, kashmirklutz said:

my husband is South Korean so he can stay Visa free for up to 3 months

How did he enter the US before submitting the I-485? If with VWP, one of the ESTA questions is: "Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?" Pending AOS is not an acceptable status for that question.

Edited June 15, 2019 by HRQX

[J&J9293 0]

1 hour ago, JFH said:

He is not eligible for a green card if he has moved out of the country. The terminology is “Lawful Permanent Resident”. Without residency, there is no green card.  

Understood.  Thank you for the reply. As a result, referring back to the original question, has anyone had any experience pausing or withdrawing a green card application? I am not sure if 'pausing' is even an option. Hence, my posting for responses.  We are aware that under the current parameters of our situation, he would not 'qualify' for adjustment of status if we decide to stay abroad for an extended amount of time. Therefore before we have an interview with the officer we would like to know our options. Should we just go and accept denial or withdraw or pause before they can deny?

1 hour ago, HRQX said:

How did he enter the US before submitting the I-485? If with VWP, one of the ESTA questions is: "Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?" Pending AOS is not an acceptable status for that question.

He entered on ESTA but the intention was not to get married. Him entering later or future travel depends on the outcome of the case. 

[HRQX 4,145]

12 minutes ago, kashmirklutz said:

He entered on ESTA but the intention was not to get married. Him entering later or future travel depends on the outcome of the case. 

I disagree. The aforementioned ESTA question is clear. IMO, his ESTA privilege is now gone since the answer to that question has changed in his case.

Edited June 15, 2019 by HRQX

[J&J9293 0]

3 minutes ago, HRQX said:

Future ESTA entry is at the discretion of CBP. IMO, high odds of CBP denying ESTA entry for him.

Understood. To clarify, you are saying that given his history of applying for a green card previously (and he entered previously on ESTA and later got married) then it is possible that he would be denied entry because his intention would be questioned? Like all cases entry is usually at the discretion of the officer. I am assuming his previous history in America would raise more questions? Is that what you are trying to say?

[HRQX 4,145]

1 minute ago, kashmirklutz said:

Understood. To clarify, you are saying that given his history of applying for a green card previously (and he entered previously on ESTA and later got married) then it is possible that he would be denied entry because his intention would be questioned? Like all cases entry is usually at the discretion of the officer. I am assuming his previous history in America would raise more questions? Is that what you are trying to say?

I edited my post

8 minutes ago, HRQX said:

I disagree. The aforementioned ESTA question is clear. IMO, his ESTA privilege is now gone since the answer to that question has changed in his case.

 

1 hour ago, HRQX said:

one of the ESTA questions is: "Have you ever stayed in the United States longer than the admission period granted to you by the U.S. government?"

 

[J&J9293 0]

4 minutes ago, HRQX said:

I edited my post

 

 

Understood. From the sounds of it, it seem you are affirming that if we either relinquish our application or get denied (two very difference scenarios) his ESTA would be denied to to the ESTA question of overstaying a visa. Interesting. I appreciate your response. I look forward to additional input and will continue my research.

[HRQX 4,145]

2 hours ago, kashmirklutz said:

( I still pay taxes)

There is a requirement to file depending on worldwide income. Even US citizens with 0 ties to the US must file. From the last page of your passport:

When ready start the IR-1 process: https://www.visajourney.com/content/i130guide1/ It is straightforward since he won't need an I-212 waiver: https://fam.state.gov/fam/09FAM/09FAM030211.html#M302_11_3

Quote

b. (U) Period of Authorized Stay In General: For purposes of INA 212(a)(9)(B), unlawful presence will not accrue during a "period of authorized stay," which includes:

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(6) (U) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after removal proceedings had already been initiated);

The Department of State follows the above when determining if an I-212 waiver is required. The above is not binding for CBP. IMO, the above does not cover future ESTA travel.

Edited June 15, 2019 by HRQX

[J&J9293 0]

32 minutes ago, HRQX said:

There is a requirement to file depending on worldwide income. Even US citizens with 0 ties to the US must file. From the last page of your passport:

When ready start the IR-1 process: https://www.visajourney.com/content/i130guide1/ It is straightforward since he won't need an I-212 waiver: https://fam.state.gov/fam/09FAM/09FAM030211.html#M302_11_3

The Department of State follows the above when determining if an I-212 waiver is required. The above is not binding for CBP. IMO, the above does not cover future ESTA travel.

Yes. I am aware that I must continue to pay taxes. But to further answer, should we withdraw our application? And Re-file once we are ready to live in the country? Or take our chances in the interview and look to get the i130 approved and accepts the i485 being denied?

[HRQX 4,145]

24 minutes ago, kashmirklutz said:

Or take our chances in the interview and look to get the i130 approved and accepts the i485 being denied?

The safe route is to go to the interview in order to withdraw the I-485 and request the I-130 to be sent to NVC after approval. If the approved I-130 is sent to NVC, then call NVC about every 12 months to avoid them sending it back to USCIS.

 

[J&J9293 0]

6 minutes ago, HRQX said:

The safe route is to go to the interview in order to withdraw the I-485 and request the I-130 to be sent to NVC after approval. If the approved I-130 is sent to NVC, then call NVC about every 12 months to avoid them sending it back to USCIS.

 

Oh that is good to know. Then we will go to the interview and prove the bonafide marriage. Then formally ask that our i485 be withdrawn. I know that I can mail a letter in to the USICS office, but perhaps I can just hand the formal statement over to the officer? Or should I send in in the withdraw letter as soon as possible. Albeit given the interview is next week, I believe the timelines would merely overlap. Again thank you for your response on this thread. It is appreciated. I will be sure to check with my lawyer as well. 

[carmel34 3,657]

As others have said, just go to your interview and focus on getting the I-130 approved, then at some future date when or if you decide to move back to the US together it will save time in the immigration process as the approved I-130 will still be on file and you won't have to start all over again.

[JFH 12,191]

Pausing the AOS is not an option, as you correctly guessed. But the I-130 can and will remain on file for a future date, if needed. If you do decide to return to live here, you’re half-way through the CR-1 process with an approved I-130. You would then need to have it retrieved and continue with consular visa processing by sending the required documents to the NVC.

 

In terms of visiting again, the ESTA/VWP ship has sailed for him now. Since the AOS was abandoned, he must declare on future applications to enter the country that he previously overstayed. Even an hour’s overstay makes one ineligible for the VWP indefinitely. So to visit he will need to apply for a B-2 visa. He may or may not be approved. Depends if the CO at the embassy interview trusts him to not overstay again. 

Edited June 15, 2019 by JFH

[JFH 12,191]

*~*~*moved from “US citizenship discussion” to “AOS from work/study/tourist visas”*~*~*