Changed mind from AOS to Consular Processing

[chancecody 125]

Long story short, we chose the AOS route because our lawyer told us that we will not be able to see each other for 1-2 years. The VJ Community shows that you can actually travel on B2 while on I-130 so I wish I joined sooner. I read somewhere that it is not advisable to change from AOS to CP because it would take 1 year to make the switch. I am weighing my options and thinking of just abandoning my I485/I131/I765 by leaving the US without AP. What happens to my approved I130? It clearly stated in our I130 that the beneficiary (me) would not go through Consular Processing but through AOS in Reno. Do we start over by applying a new I130? I just want to be able to travel back and forth and the latest estimate of my AP/EAD is March 2022. There is not a lot of information about changing from AOS to CP. Does anybody have experience or knowledge on this? Thanks!

 

More about me to help answer my case:

I485/131/765 concurrently filed and receipt notice July 16, 2021; Field Office Reno, Biometrics Sept 17, 2021

I130 approved this summer

Canadian citizen married to a USC less than 2 years

Canadians do not apply for a visa in an embassy but automatically get B2 for 6 months when admitted by CBP; would travel back and forth while USC spouse lives in the US while I live in Canada while waiting

 

Edited August 25, 2021 by chancecody

[Crazy Cat 42,296]

I would do a lot of thinking before abandoning adjustment of status.  The I-130 does not expire as long as the relationship still exists.  Keep the approval notice.   You might want to take a look at the I-824 .  I think you would have to submit it to move the I-130 to DOS.   I have read it could take a year to transfer the I-130 to DOS. 

https://www.murthy.com/2018/07/12/changing-from-adjustment-of-status-to-consular-processing/

 

[Crazy Cat 42,296]

One more thing.  There is no guarantee that you will be able to re-enter the US regularly.  There have been a few cases, here on VJ, when Canadian spouses were denied entry. 

[arken 4,197]

Seconding to above, you have to consider that there is a possibility that you may not be able to visit your spouse in the US for another 1-2 years till you get the immigrant visa. I824 processing is 3-27 months and there are huge backlogs at the embassy for visas. My suggestion is to stay in the US and let the AOS proceed. You could get lucky and get GC much sooner than the shown estimate.

[chancecody 125]

1 hour ago, Crazy Cat said:

I would do a lot of thinking before abandoning adjustment of status.  The I-130 does not expire as long as the relationship still exists.  Keep the approval notice.   You might want to take a look at the I-824 .  I think you would have to submit it to move the I-130 to DOS.   I have read it could take a year to transfer the I-130 to DOS. 

https://www.murthy.com/2018/07/12/changing-from-adjustment-of-status-to-consular-processing/

 

Thank you Crazy Cat and Arken for the help. To avoid I-824, is it ever an option to “abandon I-130”? My spouse is thinking of re-filing I-130 and filling out Part 4, Items 62a to 62c to signal consular processing. Our thought is I-130 gets approve faster (less than 2 months for us) compared to waiting up to 27 months to process I-824.

[Crazy Cat 42,296]

42 minutes ago, chancecody said:

Thank you Crazy Cat and Arken for the help. To avoid I-824, is it ever an option to “abandon I-130”? My spouse is thinking of re-filing I-130 and filling out Part 4, Items 62a to 62c to signal consular processing. Our thought is I-130 gets approve faster (less than 2 months for us) compared to waiting up to 27 months to process I-824.

Yes.  An I-130 can be withdrawn by the petitioner.......and a new I-130 can be submitted from scratch.

Edited August 25, 2021 by Crazy Cat

[Timona 4,208]

4 hours ago, chancecody said:

Thank you Crazy Cat and Arken for the help. To avoid I-824, is it ever an option to “abandon I-130”? My spouse is thinking of re-filing I-130 and filling out Part 4, Items 62a to 62c to signal consular processing. Our thought is I-130 gets approve faster (less than 2 months for us) compared to waiting up to 27 months to process I-824.

 

1. You will not get another B-2 as you have shown immigration intent. So instead of being stuck in the US, you will be stuck in Canada.
2. The earliest you can to the US with approved CR-1 will be 2022 December. 
3. Based on 2 above, would it not be smart to just wait and get your AP, which should come earlier than 2022? You should have it buy December of January 2022, latest. It is currently taking 6 - 8 months to approve it, with 8 months being at COVID's peak. Timeframes are now improving. 
4. And with you abandoning AOS, you will be throwing away $1760. 
5. You can go to the FO and wait for when traffic is slow and request early biometrics rather than waiting till Sept 17th. That should cut you 3 weeks. However, you can only do this when foot traffic at the FO has reduced. 

My advise....keep yourself preoccupied. There are many places you can visit in the US. You have many cons leaving US than waiting for AP. 

[Just Paul 4,595]

Have you asked to have the I-131 expedited?

[Kai G. Llewellyn 838]

As someone who just went through Consular Processing in Canada the backlog at the Montreal consulate is real. Once you get DQ'ed by the NVC you are then looking at a minimum 11 month wait until you can be interviewed by the Consulate.

 

You have absolutely no guarantee of being able to re-enter the US after abandoning AoS, and I would wager that the previous AoS would be a mark against you regarding trying to prove non-immigrant intent for B2 status.

 

Right now the US land border is closed to non-essential travel to Canadians, so your only option would be to fly right now. There are no exemptions for family unification. Your US spouse could visit you in Canada per Canada's requirements for entry for vaccinated US Citizens.

 

My advice would be, wait for the I-131 to be approved and see if there are any grounds for an expedite...which there may well be if you are needing to leave the US so bad that you're willing to abandon AoS.

Edited August 25, 2021 by Kai G. Llewellyn

[chancecody 125]

1 hour ago, Paul & Mary said:

Have you asked to have the I-131 expedited?

Hi there,

 

I have not because my situation is I work remotely for a Canadian company that I love. My spouse is a student and not working so I could expedite using the “severe financial loss” because I am required to at least attend one meetings in person a month as things are opening up again in Canada….I could reason that I would lose my job if I cannot travel out of the US. However, Congress has not really fully defined whether remote work is legal or not. There are many opinions about this but ultimately, as an Immediate Relative of a USC, bars to adjustment does not apply for unauthorized employment (personally based on the wording of the law and my research, remote work is not illegal but that is a discussion for another day as whether it is legal or not, this unauthorized work bar to adjustment does not apply to me). I cannot really ask to expedite my case because I need to travel for remote work. 

Edited August 25, 2021 by chancecody

[chancecody 125]

Thanks everyone for the sound advice! I love this community willing to help one another ❤️. 

 

My spouse and I will discuss our next steps considering the pros and cons. If anyone else have any other experience or perspectives to add, please feel free.

[Kai G. Llewellyn 838]

19 minutes ago, chancecody said:

Hi there,

 

I have not because my situation is I work remotely for a Canadian company that I love. My spouse is a student and not working so I could expedite using the “severe financial loss” because I am required to at least attend one meetings in person a month as things are opening up again in Canada….I could reason that I would lose my job if I cannot travel out of the US. However, Congress has not really fully defined whether remote work is legal or not. There are many opinions about this but ultimately, as an Immediate Relative of a USC, bars to adjustment does not apply for unauthorized employment (personally based on the wording of the law and my research, remote work is not illegal but that is a discussion for another day as whether it is legal or not, bars to adjustment does not apply to me). I cannot really ask to expedite my case because I need to travel for remote work. 

I suppose it comes down to what's more important to you, either a. significantly delaying your immigration process but keeping your job, or b. keeping your immigration process on track but giving up your Canadian job. I can't see an expedite being granted for this, but hey, I could be wrong. I should add, delta has kinda nixed the 'opening up' you describe. We've just gone back to a mask mandate in BC and full office reopening in September has been delayed.

 

Is your employer aware that you're working from within the US? Additionally, are you planning to keep your Canadian job after you obtain your GC? Generally it's ill-advised to conceal the fact that you're working remote from outside of Canada from your employer as it could cause some HR/Payroll headaches that could eventually come to bite you.

Edited August 25, 2021 by Kai G. Llewellyn

[chancecody 125]

1 minute ago, Kai G. Llewellyn said:

I suppose it comes down to what's more important to you, either a. significantly delaying your immigration process but keeping your job, or b. keeping your immigration process on track but giving up your Canadian job. I can't see an expedite being granted for this, but hey, I could be wrong.

 

Is your employer aware that you're working from within the US? Additionally, are you planning to keep your Canadian job after you obtain your GC? Generally it's ill-advised to conceal the fact that you're working remote from outside of Canada from your employer as it could cause some HR/Payroll headaches that could eventually come to bite you.

Thanks. Yes, they are aware. They want to keep me and I plan to stay even after AOS approval. The terms of my job just requires me to travel once a month and travel arrangements are covered (important meetings). I did not realize that the timing on CR1 is very long. I thought it was 6 months max.

 

If I were to give myself an advice if I go through a time machine back in April, I would tell myself that it is easier to signal consular processing first because even if I changed my mind after, the process is easier and less painful to move from CR1 to AOS than AOS to CR1 😄

[Kai G. Llewellyn 838]

1 minute ago, chancecody said:

Thanks. Yes, they are aware. They want to keep me and I plan to stay even after AOS approval. The terms of my job just requires me to travel once a month and travel arrangements are covered (important meetings). I did not realize that the timing on CR1 is very long. I thought it was 6 months max.

 

If I were to give myself an advice if I go through a time machine back in April, I would tell myself that it is easier to signal consular processing first because even if I changed my mind after, the process is easier and less painful to move from CR1 to AOS than AOS to CR1 😄

Hindsight is 20/20 right? xD This is precisely why I went through Consular Processing as I'm a Systems Admin and I'd be in a pickle if I couldn't make it to the office to put out server fires. Best of luck whichever you choose to go with.

[Chancy 6,243]

13 minutes ago, chancecody said:

If anyone else have any other experience or perspectives to add, please feel free.

 

I encourage you to check out the Canada DQ thread to read about the experiences of those who have gone through, are going through, or have given up on the spouse visa process at Montreal --