Abandoned my I130 to go to AOS... regretting it now?

[INF 96]

I abandoned my I130 that was at DQd for Montreal office for end of May. Is there a way I can go back to it? The adjustment of status process is so long and not moving at all! I still have not received my biometrics and I’m totally regretting switching. I was one of those people that was quarantined in the US when the border closed and it felt like the world was ending. The Montreal embassy is moving faster and should be on May interviews in 2-3 months.

Thanks

[HRQX 4,145]

1 hour ago, INF said:

I’m totally regretting switching.

At least while I-485 is pending you don't accrue "unlawful presence": https://fam.state.gov/fam/09FAM/09FAM030211.html

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b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

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(5) (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 deportation proceedings had already been initiated);

But at Montreal you would interview under DOS rules (e.g. 90-day rule if applicable): https://fam.state.gov/fam/09FAM/09FAM030209.html

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(b)  (U) Inconsistent Conduct:  For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:

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(iii)    (U) A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States. (Note: to establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, post may take into account whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States);

 

1 hour ago, INF said:

I abandoned my I130

Did you file a new I-130 for Adjustment of Status? If not, do you know where the original I-130 currently is? For example, if it was sent back to USCIS, USCIS may request that you file Form I-824 (Application for Action on an Approved Application or Petition) with $465 fee.

Edited November 29, 2020 by HRQX

[INF 96]

3 hours ago, HRQX said:

At least while I-485 is pending you don't accrue "unlawful presence": https://fam.state.gov/fam/09FAM/09FAM030211.html

But at Montreal you would interview under DOS rules (e.g. 90-day rule if applicable): https://fam.state.gov/fam/09FAM/09FAM030209.html

 

Did you file a new I-130 for Adjustment of Status? If not, do you know where the original I-130 currently is? For example, if it was sent back to USCIS, USCIS may request that you file Form I-824 (Application for Action on an Approved Application or Petition) with $465 fee.

No no my I130 is approved and DQd late May. I filed my I485 afterwards in August. Is there a way I can go back to Canada and attend my interview instead? 

[HRQX 4,145]

45 minutes ago, INF said:

No no my I130 is approved and DQd late May. I filed my I485 afterwards in August.

Can you verify with NVC if they still have the approved I-130 petition? Because if they sent it back to USCIS after I-485 was filed it may mean additional steps.

[betzzymathew 20]

Can feel you. In the same state, currently in US , waiting for an interview in Montreal. Debated between AOS or wait it out. 

Anyways I doubt anyone can give you a solid answer, as the above replier mentioned, if your I-130 approved petition has been pulled from NVC, you have no recourse but to file an Form I-824 to send your file back to NVC. Thats another 8-10 month delay (pre - covid) and I dont even know how the DQ date gets refreshed. 

 

I am not even sure, if an NVC rep or anyone can confirm if your file has been pulled. 

 

Its quite likely and very possible, that NVC will continue to schedule interview and will give you an interview soon (This has happened in the past where people moved to AOS and still got interview dates - They informed the consulate of their intent to Adjust status after receiving interview data). You could decide to attend the interview and get approved, but I have no idea what effect it will have on your AOS application.

Logically thinking missing your AOS interview only means you have to voluntarily leave or involuntarily removed from the country, but if you decide to attend the consular interview, you would have voluntarily abandoned the application much before, so ideally shouldn't have any effect. 

 

I would ask what is your intent ? Is your end goal getting Permanent Residency as soon as possible or would you be happy with the ability to work (EAD). If its EAD, I would suggest not to mess up the AOS part since you are close and worst case scenario you will get in a couple of months. If its Permanent Residency, risking it with Consular interview is far better alternative. 

[INF 96]

15 hours ago, betzzymathew said:

Can feel you. In the same state, currently in US , waiting for an interview in Montreal. Debated between AOS or wait it out. 

Anyways I doubt anyone can give you a solid answer, as the above replier mentioned, if your I-130 approved petition has been pulled from NVC, you have no recourse but to file an Form I-824 to send your file back to NVC. Thats another 8-10 month delay (pre - covid) and I dont even know how the DQ date gets refreshed. 

 

I am not even sure, if an NVC rep or anyone can confirm if your file has been pulled. 

 

Its quite likely and very possible, that NVC will continue to schedule interview and will give you an interview soon (This has happened in the past where people moved to AOS and still got interview dates - They informed the consulate of their intent to Adjust status after receiving interview data). You could decide to attend the interview and get approved, but I have no idea what effect it will have on your AOS application.

Logically thinking missing your AOS interview only means you have to voluntarily leave or involuntarily removed from the country, but if you decide to attend the consular interview, you would have voluntarily abandoned the application much before, so ideally shouldn't have any effect. 

 

I would ask what is your intent ? Is your end goal getting Permanent Residency as soon as possible or would you be happy with the ability to work (EAD). If its EAD, I would suggest not to mess up the AOS part since you are close and worst case scenario you will get in a couple of months. If its Permanent Residency, risking it with Consular interview is far better alternative. 

Wow thank you so much! I think it is better now not to go back and forth. I will stick it out with my AOS now.