Implications of Withdrawing AOS

[jgfacw 0]

Hi all. My USC wife and I are thinking of withdrawing our 3-month-old AOS application and switching to consular processing and file for a CR1 in my home country, due to the length of time it is taking and the pressures that it putting on us as a couple. We were thinking of moving back there together and living together there until the I-130 is processed.

 

Could anyone please advise if:

• Would we be able to withdraw the AOS I-485 and have the currently unapproved I-130 switched to Consular Processing for a CR1 visa? If so, are there any implications for this? 
• Would there be any implications on me for withdrawing AOS as, at present, I am technically out of status? Does AOS provide this protection? Obviously if we chose to do this, I would leave the US immediately. Would I be subject to any bans/bars given I was in status when we filed AOS, but now out of status? I would need to return to the US to help her move belongings to be with me, and want to make sure this is possible.
• If not, is it possible for us to move away from the US but file a withdraw AOS AND file a new I-130 before we go such that the process can continue whilst we are there, and if and when the CR1 is approved, we return to the US? 
• As my wife would be in out of the US with me, once we get to the embassy stage, is her intent to return to the US with me sufficient along with a sole joint affidavit sponsor (her family), or does she need to be in the US?

 

I guess we aren't the first this has happened to, and I suppose this would be a similar situation to a US citizen who has lived abroad for a long time who wishes to return with her spouse; we just don't want to be apart for a protracted period of time. Any similar stories or guidance would be appreciated, thanks.

 

[Boiler 45,553]

Where is there?

 

Can not see a timeline and a lot depends on that.

 

Switching to Consular processing should not be an issue.

 

Visiting? certainly could.

Edited November 18, 2021 by Boiler

[jgfacw 0]

1 hour ago, Boiler said:

Where is there?

 

Can not see a timeline and a lot depends on that.

 

Switching to Consular processing should not be an issue.

 

Visiting? certainly could.

The UK. 

 

Submitted AOS paperwork 3 months ago, been told it will likely be another 6 for EAD based on an attorney stated they are seeing amongst their other clients.

 

Is this just the case of a written letter to USCIS, or a specific form? Don't think I can use form I824 as I130 not yet approved.

 

Would need to get my wife a UK spouse visa for the length of time we are likely going to need to be in the UK. Shouldnt be a problem

Edited November 18, 2021 by jgfacw

[Boiler 45,553]

EAD/AP has been taking 8 months or so with individual variances, and has been that sort of timeline for sometime. The future well who knows but all we have is the past to go by.

 

Presumably you entered on the VWP.

 

Are you aware of the UK Immigration requirements? The main issue seems to be sponsorship, UK does not allow joint sponsors.

[Boiler 45,553]

I have only seen, and helped a friend switch from Consulate processing to adjusting, I assume it is the reverse withdraw your I 485 but am going to leave others to confirm. Does not seem very common.

[jgfacw 0]

5 minutes ago, Boiler said:

EAD/AP has been taking 8 months or so with individual variances, and has been that sort of timeline for sometime. The future well who knows but all we have is the past to go by.

 

Presumably you entered on the VWP.

 

Are you aware of the UK Immigration requirements? The main issue seems to be sponsorship, UK does not allow joint sponsors.

Yeah another 6 months isn’t going to work. Something I should have known in hindsight so my mistake.

 

Yes VWP

 

I’d plan on securing a job in the UK before I withdraw the AOS so I can apply for the spouse visa and she can join me asap. Will exceed salary threshold ok to be sole person. More concerned about withdrawal implications on CR1 and return visit to US to come back to UK with her.

[Boiler 45,553]

Do check the UK requirements, now the Uk is much quicker but not immediate and I am certainly no expert on UK immigration but thought they require you to show 6 months of relevant income.

 

Switching I doubt will be an issue, but not seen how it was done or if I have I have forgotten. I assume a letter to NVC.

 

Visiting the US is another issue, I would anticipate as far as they system is concerned it will look like you overstayed your VWP and would need a B, with the current backlog in applying and the other aspects getting a B could be a bit of an ask.

[HRQX 4,145]

2 hours ago, jgfacw said:

Yes VWP

Ok, so after you leave the US withdraw the I-485: https://fam.state.gov/fam/09FAM/09FAM030211.html

Quote

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

(1)  (U) For individuals inspected and admitted or paroled until a date specified on the Form I-94 or any extension, any period of presence in the United States up until either:

(a)  (U) the expiration of the Form I-94 (or any extension); or

(b)  (U) a formal finding of a status violation made by DHS, an IJ, or the BIA in the context of an application for any immigration benefit or in removal proceedings, whichever comes first.

(2)  (U) For individuals inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue the day after the formal finding is made;

(3)  (U) For individuals granted "voluntary departure" (VD), pursuant to INA 240B, the period between the granting of VD and the date of their departure, if the individual departs according to the terms of the grant of VD;

(4)  (U) For individuals who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:

(a) (U) the individual does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and

(b)  (U) the individual did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:

(i)     (U) that the application was subsequently approved; or

(ii)    (U) if the application was denied or the individual departed while the application was still pending, that the application was timely filed and nonfrivolous.

(5) (U) For individuals who have properly filed an application for adjustment of status to LPR, the entire processing period of the application, even if the application is subsequently denied or abandoned, provided the individual (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after deportation proceedings had already been initiated);  

(6)  (U) For individuals covered by Temporary Protected Status (TPS), the period after TPS went into effect and prior to its expiration; and

(7)  (U) For individuals granted deferred action, the period during which deferred action is authorized.

 

Also your USC wife should call USCIS and ask for a Tier 2 so that the I-130 can be switched to consular processing.

Edited November 18, 2021 by HRQX

[Redro 4,611]

 

On 11/19/2021 at 2:19 AM, Boiler said:

Do check the UK requirements, now the Uk is much quicker but not immediate and I am certainly no expert on UK immigration but thought they require you to show 6 months of relevant income.

 

Switching I doubt will be an issue, but not seen how it was done or if I have I have forgotten. I assume a letter to NVC.

 

Visiting the US is another issue, I would anticipate as far as they system is concerned it will look like you overstayed your VWP and would need a B, with the current backlog in applying and the other aspects getting a B could be a bit of an ask.

The rules for the U.K are fairly complicated (or at least it is to me) when it comes to financial sponsorship... 

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/996814/appendix-fm-1-7-financial-requirement-v7.0-ext.pdf

 

You'll want to look at PG 11-19, PG 19-26 and perhaps PG 44-51. 

 

 

[jgfacw 0]

On 11/18/2021 at 11:11 AM, HRQX said:

Ok, so after you leave the US withdraw the I-485: https://fam.state.gov/fam/09FAM/09FAM030211.html

 

Also your USC wife should call USCIS and ask for a Tier 2 so that the I-130 can be switched to consular processing.

Thank you for this; does that mean I won't be considered an overstay?

[jgfacw 0]

On 11/18/2021 at 9:05 AM, Boiler said:

I have only seen, and helped a friend switch from Consulate processing to adjusting, I assume it is the reverse withdraw your I 485 but am going to leave others to confirm. Does not seem very common.

Thanks, do you know when this should be done; ie before or after leaving the US? Are there any other files that have to be submitted for Consulate Processing? Ie we have submitted I485, I765, I130, I864, Adv Parole, G28; we just wish to retain the I130 as CP, withdraw the other EAD/AP, but are there any forms we have to complete? Can we continue to use our same I864's/G28 for example?

[Boiler 45,553]

I assume you will need a medical.

[jgfacw 0]

1 hour ago, Boiler said:

I assume you will need a medical.

So I did one after filing I485, but I'm assuming this will no longer be valid if we make this switch?

Edited November 24, 2021 by jgfacw

[Boiler 45,553]

2 minutes ago, jgfacw said:

So I did one after filing I485, but I'm assuming this will no longer be valid if we make this switch?

That is my understanding.