I-129F Fiancee Petition withdrawn during AOS - RFE

[tltypes 1]

Hi all,

 

We have somewhat of a difficult case before us. 

 

I submitted I-129F for my fiancee and everything was approved, they came into the country through a POE, and we were married within the 90 day window. We went through some rough times in the beginning which involved myself submitting a request to withdraw my already approved I-129F petition. We have since then reconciled and our relationship has since then improved, and we submitted for AOS before the I-129F withdrawal went through. We also completed biometrics for AOS. 

 

Recently, we received an RFE regarding the withdrawn I-129F, asking which underlying petition we are filing AOS based on. What is the best course of action here? Should we try to reason with USCIS (in RFE response) that the withdrawal of the approved I-129F was a mistake and ask them to proceed with the AOS? Should we wait for NOID and try to appeal to an immigration judge? 

 

Any input is appreciated.

[Crazy Cat 41,112]

I am not an expert, but i would file an I-130...ASAP...TODAY!!!!  You will need to withdraw the current I-485, then refile a new I-485 based on the I-130, imo.

Edited August 15, 2022 by Crazy Cat

[SteveInBostonI130 3,349]

This is smth I have not seen before.

 

I thought the I-129F was moot once it was approved and the K-1 visa was issued and used to enter the US.

 

I did not know AOS for K-1s can be prevented by filing to withdraw the approved I-129F.

 

I have seen several posts of the reverse - that the fiance spouse cheated/scammed the USC and the USC is trying to see if there is a way to prevent the fiance spouse from AOS.

 

The above is just a comment. 

[Crazy Cat 41,112]

1 hour ago, SteveInBostonI130 said:

This is smth I have not seen before.

 

I thought the I-129F was moot once it was approved and the K-1 visa was issued and used to enter the US.

 

I did not know AOS for K-1s can be prevented by filing to withdraw the approved I-129F.

 

I have seen several posts of the reverse - that the fiance spouse cheated/scammed the USC and the USC is trying to see if there is a way to prevent the fiance spouse from AOS.

 

The above is just a comment. 

Agree....., but it certainly looks like USCIS voided that I-129f.  That leaves no basis for an I-485.  Seems to me that withdrawing the I-485, then filing an I-130 and new I-485 is the only remedy.  I think any other course of action is going to be just as expensive.

Edited August 15, 2022 by Crazy Cat

[Crazy Cat 41,112]

17 minutes ago, SteveInBostonI130 said:

I did not know AOS for K-1s can be prevented by filing to withdraw the approved I-129F.

An I-130 can be withdrawn.  I guess an I-129f can, too.  This one was withdrawn before the I-485 was approved, voiding the basis for adjustment, it seems.

Edited August 15, 2022 by Crazy Cat

[Crazy Cat 41,112]

1 hour ago, tltypes said:

and we submitted for AOS before the I-129F withdrawal went through.

The I-129f withdrawal was effective the day you sent it (or the day they received it).  It was effective before approval of the I-485.

Edited August 15, 2022 by Crazy Cat

[Chancy 6,239]

12 minutes ago, Crazy Cat said:

Agree....., but it certainly looks like USCIS voided that I-129f.  That leaves no basis for an I-485.  Seems to me that withdrawing the I-485, then an I-130 and new I-485 is the only remedy.

 

That's my interpretation as well.  Withdrawn I-129F means the I-485 has no basis to be approved, so need a new I-485 with concurrently filed I-130.  Also need a letter that they worked out whatever issues they had that led to the withdrawal of the I-129F.

 

1 hour ago, tltypes said:

Should we try to reason with USCIS (in RFE response) that the withdrawal of the approved I-129F was a mistake and ask them to proceed with the AOS?

 

You can't take back the withdrawal of the I-129F, according to USCIS regulations.  From https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-103#p-103.2(b)(6) -- "Withdrawal.  An applicant or petitioner may withdraw a benefit request at any time until a decision is issued by USCIS or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted."

 

[Crazy Cat 41,112]

By the way, a new I-765 and I-131 will have to be filed, too, imo. 

[Family 3,821]

1 hour ago, tltypes said:

 

Recently, we received an RFE regarding the withdrawn I-129F, asking which underlying petition we are filing AOS based on. What is the best course of action here? Should we try to reason with USCIS (in RFE response) that the withdrawal of the approved I-129F was a mistake and ask them to proceed with the AOS? Should we wait for NOID and try to appeal to an immigration judge? 

1. File I-130 online today and print out receipt notice 

 

2. Do new I-485/I-765/I-864/I-131 plus copy of I-130 online and send out asap

 You can use copy of old forms , just update/ correct   forms where needed , put current date and sign .

 

3. Respond to RFE by stating “ Please be advised an I-130 has been filed, case #xyz concurrent with new I-485 case # pending . I request this I-485 case #abc be withdrawn as per instructions in this RFE . Withdrawal of the I-129 F was a momentary hiccup in our very passionate and loving marriage..anything else you want to say”

 

You will be fine

[Crazy Cat 41,112]

Just now, Family said:

1. File I-130 online today and print out receipt notice 

 

2. Do new I-485/I-765/I-864/I-131 plus copy of I-130 online and send out asap

 You can use copy of old forms , just update/ correct   forms where needed , put current date and sign .

 

3. Respond to RFE by stating “ Please be advised an I-130 has been filed, case #xyz concurrent with new I-485 case # pending . I request this I-485 case #abc be withdrawn as per instructions in this RFE . Withdrawal of the I-129 F was a momentary hiccup in our very passionate and loving marriage..anything else you want to say”

 

You will be fine

Agree.  I would submit that I-130 online.....today!!!  

[Letspaintcookies 2,290]

1 hour ago, Family said:

 

You will be fine

I would expect quite some scrutiny come interview.

[Crazy Cat 41,112]

2 minutes ago, Letspaintcookies said:

I would expect quite some scrutiny come interview.

Maybe.  But it can be explained.  First priority should be to wipe the slate clean by withdrawing the first I-485, then filing an I-130 and a new I-485. 

[SalishSea 17,433]

Expensive choice.

[tltypes 1]

Thank you everyone for your input.

 

We are thinking that an I-130/new I-485 is the next thing to do. However, what are the requirements to be eligible to do the concurrent I130/I485 filing? Our RFE currently states "am immigrant visa number is not immediately available to you", which is likely because the I-129F was withdrawn, which voided the K-1 visa number in the passport that was used to enter the country. I thought I read a guide here on VJ that a visa number must be immediately available to the petitioner in order to concurrently file a I130/I485. Am I misunderstanding something here? 

[Family 3,821]

Eligible just as per prior filing, through marriage to USC thus an IR