Left country without advanced parole, now trying to return on emergency tourist visa

[tyoty 2]

Hi @tkyang99 Any updates on your situation? Did your wife try to enter with the AP? Did they consider the AP and/or AOS abandoned?

[tkyang99 7]

7 hours ago, tyoty said:

Hi @tkyang99 Any updates on your situation? Did your wife try to enter with the AP? Did they consider the AP and/or AOS abandoned?

Hi yes, so wow it's been a while, but yes my wife did eventually get her AP after about 11 months, I mailed her the AP and she used it to come back, there were no issues and no questions at the port of entry (SFO).

 

So afterwards, we double checked with our lawyer, and her recommendation was that we re-file our AOS, because technically, the original AOS is considered abandoned. On the safe side, we filed a new AOS so we had 2 AOS applications active at the same time.

 

When the time came for the interview (this was about 4 months ago), our lawyer recommended to be completely truthful and tell them exactly what happened. So we told them about her leaving the country without the AP, and explained why we had 2 active applications, etc.

 

So the interviewer agreed that the original AOS should be considered abandoned, but he said he can still do the interview for us (so the interview would actually apply to the 2nd AOS, even though that one is still going through the process). He said once the 2nd AOS reaches the local USCIS office, hopefully he can just apply the interview to that one, and not have to do a 2nd interview.

 

So that's where we are now, just waiting for the results of the interview. Bottom line is it became quite messy, but I think in the end we did the right thing and tried to be honest and transparent to USCIS throughout the whole process. 

 

[Family 4,065]

6 minutes ago, tkyang99 said:

So that's where we are now, just waiting for the results of the interview. Bottom line is it became quite messy, but I think in the end we did the right thing and tried to be honest and transparent to USCIS throughout the whole process. 

 

You have a brilliant strategic attorney….up to the last decision to put the first abandoned I-485 in USCIS lap instead of just withdrawing once she got back safely. Thank you for posting.

[tyoty 2]

@tkyang99 Thx for the detailed updates! It seems that the AP I-131 never got abandoned then.

 

As for the I-485:

1) did your lawyer check first whether it was abandoned before re-filing? I guess not.

2) do you think that if you didn't bring up the issue that the officer would have been fine to proceed with the first AOS? did you bring it up right away or was he asking questions whether she's ever left the country without AP?

3) was the 2nd AOS filed using the paroled entry from the time your wife arrived with the AP? just curious about filing a 2nd one while the 1st one was pending.

 

Keep us posted on the progress. Would have been nice for the officer to adjudicate the 2nd AOS. 

[tyoty 2]

6 hours ago, Family said:

You have a brilliant strategic attorney….up to the last decision to put the first abandoned I-485 in USCIS lap instead of just withdrawing once she got back safely. Thank you for posting.

@Family Do you believe that it would have been better to either withdraw the first AOS then refile? In that case, the AP and EAD provided with 1st AOS would also be cancelled I presume. Would have it been better to not do anything and see how the 1st AOS interview goes?

 

[Family 4,065]

3 hours ago, tyoty said:

Would have it been better to not do anything and see how the 1st AOS interview goes?

 

No at all. You had to file the 2nd AOS. In your own thread, there is a link from a 2014 VJ member that went through a somewhat similar experience , that was cured  w filing a 2nd AOS.  I thought YOU may have given your attorney the idea. Just sit tight . 
 

[arken 4,197]

4 hours ago, tyoty said:

did your lawyer check first whether it was abandoned before re-filing?

 

4 hours ago, tyoty said:

Would have it been better to not do anything and see how the 1st AOS interview goes?

 

It won't be abandoned or denied automatically because there is no automated system to do so. It is considered abandoned per uscis policy and when uscis determines that when it gets the travel record during different immigration phases, that could be an issue.

 

Remember uscis relies on people self reporting of correct info rather than uscis investigating it.
 

There was a chance CBP could have denied OP's wife entry if they checked everthing. But the moment they admitted her she was good to go. She made a very good decision on filing another AOS and making it clear during the interview. 
 

There is a chance for GC to be issued from first AOS because they don't usually ask for travel records during AOS interview. But when they discover it during naturalization (at which time they check everything in detail) they could potentially issue NTA if it had been less than 5 years. If it had been more than 5 years, uscis generally doesn't revoke GC but won't provide citizenship either due to GC being not obtained lawfully. So one gets stuck with renewing GC all the time.

 

 

[SalishSea 17,970]

1 hour ago, arken said:

There is a chance for GC to be issued from first AOS because they don't usually ask for travel records during AOS interview

In our experience, they do.  They wanted a current I-94, which we did not have, but they accepted my husband's passport in lieu of that, and made copies.

[Family 4,065]

1 hour ago, arken said:

But the moment they admitted her she was good to go. She made a very good decision on filing another AOS and making it clear during the interview. 

A few years ago ( 4 or 5 ) when AP s filed for AOS began to come in like water , a few brave souls ( spearheaded by both creative Notarios and Attorneys) obtained AP on 1st AOS , for IR s ( spouse of USC ) that were EWI , entry without admission, specifically Mexico) and filed a 2nd AOS before first one adjudicated….a lot of $ just to end up NTA d

 

OP , your $ was well spent and your wife has a True Champion for Life! 
 

 

 

[arken 4,197]

2 hours ago, Jorgedig said:

In our experience, they do.  They wanted a current I-94, which we did not have, but they accepted my husband's passport in lieu of that, and made copies.

Yeah they want the last entry date but usually don't go into travel history at that point to catch everything. While in N400 they look at everything.

[RamonGomez 272]

On 2/27/2021 at 4:04 PM, Letspaintcookies said:

But a tourist visa even if it was issued emergency wise for whatever reason does not allow her to stay and adjust status. You have to start over with a spousal visa and do the consular processing in her home country.

LOL if @tkyang99  listened to this very-highly rated post (and the other 20 posts parroting this nonsense) it would've cost him an extra 2 years of separation with his wife/kids.

 

Congrats man - glad it all worked out for you. Everything is much easier to do stateside where you can have a lawyer on your side and stay together as a family. 

[tyoty 2]

2 hours ago, RamonGomez said:

LOL if @tkyang99  listened to this very-highly rated post (and the other 20 posts parroting this nonsense) it would've cost him an extra 2 years of separation with his wife/kids.

 

Congrats man - glad it all worked out for you. Everything is much easier to do stateside where you can have a lawyer on your side and stay together as a family. 

Sometimes the forums are stricter than the USCIS  

[tyoty 2]

On 7/16/2022 at 5:44 AM, tkyang99 said:

Hi yes, so wow it's been a while, but yes my wife did eventually get her AP after about 11 months, I mailed her the AP and she used it to come back, there were no issues and no questions at the port of entry (SFO).

 

So afterwards, we double checked with our lawyer, and her recommendation was that we re-file our AOS, because technically, the original AOS is considered abandoned. On the safe side, we filed a new AOS so we had 2 AOS applications active at the same time.

 

When the time came for the interview (this was about 4 months ago), our lawyer recommended to be completely truthful and tell them exactly what happened. So we told them about her leaving the country without the AP, and explained why we had 2 active applications, etc.

 

So the interviewer agreed that the original AOS should be considered abandoned, but he said he can still do the interview for us (so the interview would actually apply to the 2nd AOS, even though that one is still going through the process). He said once the 2nd AOS reaches the local USCIS office, hopefully he can just apply the interview to that one, and not have to do a 2nd interview.

 

So that's where we are now, just waiting for the results of the interview. Bottom line is it became quite messy, but I think in the end we did the right thing and tried to be honest and transparent to USCIS throughout the whole process. 

 

Btw @tkyang99: Did you call USCIS during that 10 month wait from approval to card inquire on why it was taking so long or you just waited? 10m seems like awfully long for a card.

 

Keep us posted on how the 2nd interview and/or approval goes!

[tkyang99 7]

On 7/15/2022 at 8:54 PM, Family said:

You have a brilliant strategic attorney….up to the last decision to put the first abandoned I-485 in USCIS lap instead of just withdrawing once she got back safely. Thank you for posting.

I don't want to give my attorney that much credit lol, she actually recommended from the start that we re-apply for the I-131 when she found out what happened...then later on when my wife successfully returned, she said we should cancel the first AOS and refile a new one, but I just told my attorney, don't do anything, and I filed a new AOS myself. But I can't really blame her too much, since she is SUPPOSED to follow the law to the letter. 

12 hours ago, tyoty said:

Btw @tkyang99: Did you call USCIS during that 10 month wait from approval to card inquire on why it was taking so long or you just waited? 10m seems like awfully long for a card.

 

Keep us posted on how the 2nd interview and/or approval goes!

Yeah numerous phone calls, online requests, even contacted my Ombudsman...but I think none of that made any difference, it was winter 2020 the height of Covid and there was an enormous backlog at the time.

[tkyang99 7]

On 7/16/2022 at 3:24 AM, tyoty said:

@tkyang99 Thx for the detailed updates! It seems that the AP I-131 never got abandoned then.

 

As for the I-485:

1) did your lawyer check first whether it was abandoned before re-filing? I guess not.

2) do you think that if you didn't bring up the issue that the officer would have been fine to proceed with the first AOS? did you bring it up right away or was he asking questions whether she's ever left the country without AP?

3) was the 2nd AOS filed using the paroled entry from the time your wife arrived with the AP? just curious about filing a 2nd one while the 1st one was pending.

 

Keep us posted on the progress. Would have been nice for the officer to adjudicate the 2nd AOS. 

It's possible that if we didn't say anything we would have gotten approved on the spot. But like others have mentioned, and also our attorney warned us, we are taking a risk which can affect things down the road. We just wanted to play things as safe as possible. We're not in a gigantic hurry to get the GC, as long as we can get it.