AOS

[David Mpoyi 8]

Hello guys,

I just received an EAD and advance Parole for my wife who left without one. She left in January of 2022 when I was doing the AOS paperwork. USCIS sent me a letter in december 2022 to prove that we are still together. I cannot do that because she left me. I am in the process of reconciling with her. Does that mean she can be allowed in the country if I send her the EAD card through the mail or is that process completely dead and I should think of starting a spousal process. Any information would be appreciated.

[OldUser 6,633]

Technically, she abandoned her AOS by leaving before receiving Advance Parole. In the past the trick of mailing AP would have worked, but it may not work nowadays. My intuition tells me she can try come on AP. However, I'd wait for more input from experienced members of the forum.

 

Was she in status when she left? If she overstayed, she may have accrued bar from entering. 

 

Edited January 10, 2023 by OldUser

[Crazy Cat 41,836]

 Even if she is, somehow, paroled back into the US, her Adjustment of Status was abandoned.  It will be denied at the interview or later.  

Edited January 10, 2023 by Crazy Cat

[David Mpoyi 8]

She was in status when she left. My main question was whether she can be allowed back in the US since she was approved for an EAD. I am not sure of whether to just start with the spousal route rather than have her get in just to be denied at the interview. Thank you everyone

[Crazy Cat 41,836]

2 minutes ago, David Mpoyi said:

She was in status when she left. My main question was whether she can be allowed back in the US since she was approved for an EAD. I am not sure of whether to just start with the spousal route rather than have her get in just to be denied at the interview. Thank you everyone

That EAD and AP were based on her Adjustment of Status which was abandoned.  Technically, they are now invalid.

Edited January 10, 2023 by Crazy Cat

[Crazy Cat 41,836]

 

37 minutes ago, David Mpoyi said:

She left in January of 2022 when I was doing the AOS paperwork.

Actually, the I-485 was not even properly submitted since she had already left the US before it was sent to USCIS.  That is a big, big no-no.  There was never a legal basis for the EAD or AP. 

@OldUser  @Mike E

Edited January 10, 2023 by Crazy Cat

[OldUser 6,633]

@David Mpoyi By the looks of it (not a legal advice), the best course of action is withdrawing I-485. Not sure if I-130 can be redirected to go through consular processing or it also needs to be withdrawn. 

 

@Mike E and others can suggest the next steps. 

Edited January 10, 2023 by OldUser

[Boiler 45,467]

Yes she abandoned everything so a K1 or marry and CR1 are your options 

[Mike E 11,739]

21 minutes ago, Crazy Cat said:

 

Actually, the I-485 was not properly submitted since she had left the US before it was submitted.  That could be seen as misrepresentation.  

@OldUser  @Mike E

 

 

@Family get in here before the lock.

 

The prime directive is to avoid misrepresentation. That's a life time ban. The second directive is to avoid removal: a 5 year ban.

 

To the latter this  is where CBP pre clearance is your friend.

 

If she attempts to come to the USA,  she should attempt to enter at a CBP pre clearance airport and inform CBP that she had a pending I-485, she left before AP was approved, and now is seeking to join her spouse.

 

If CBP doesn't admit her, no harm no foul: she won't be on U.S. soil so she doesn't risk a removal which carries a ban.

 

If CBP admits her, then I would get a one hour consult with a lawyer to get an opinion as to whether the I-485 is alive or dead.

 

* If alive, great,  I would hire the lawyer for rest of the process (all the way to N-400) and ask the lawyer to send a letter advising USCIS as to what happened with the beneficiary leaving the U.S.

 

* If dead, then ask the lawyer  whether she can file I-485 or not. The question is does entering on an AP / "pending" I-485 that you think you might have abandoned, constitute immigration intent? One can argue it either way. If the lawyer says file a new I-485 then hire the lawyer to do so, making sure to note that there was a previous I-485 and why a new one is being filed.

 

* If the current I-485 is dead and the lawyer thinks a new I-485 is a waste of time, then file I-130, and leave immediately.

 

I actually know of a case like this, and CBP admitted the AP holder. I don't know what happened after that.

Edited January 10, 2023 by Mike E

[Crazy Cat 41,836]

3 minutes ago, Mike E said:

and inform CBP that she had a pending I-485, she left before AP was approved, and now is seeking to join her spouse.

She left before the I-485 was even submitted.  I don't see how it can be alive. 

Edited January 10, 2023 by Crazy Cat

[Boiler 45,467]

Oops they must have married and not divorced so carry on with the I 130 but redirect to Consulate 

[Mike E 11,739]

22 minutes ago, Crazy Cat said:

She left before the I-485 was even submitted.  I don't see how it can be alive. 

Huh? Reviewing the OP I see. I missed that.

 

I-485 is signed by the beneficiary of the  I-129F.

 

 

1 hour ago, David Mpoyi said:

She left in January of 2022 when I was doing the AOS paperwork.

Who signed the I-485 after she left?

 

[jan22 3,052]

49 minutes ago, Boiler said:

Oops they must have married and not divorced so carry on with the I 130 but redirect to Consulate 

If, as the profile indicates, she entered on a K-1 and the AOS was based on that.  Therefore, there is no I-130 to redirect.  The OP would need to start a CR-130 petition from scratch by filing the I-130.

 

Also, just to note -- per the timeline, the AOS was filed in November 2021, not after she left in January 2022.

Edited January 10, 2023 by jan22

[Family 3,988]

1 hour ago, David Mpoyi said:

Hello guys,

I just received an EAD and advance Parole for my wife who left without one. She left in January of 2022 when I was doing the AOS paperwork. USCIS sent me a letter in december 2022 to prove that we are still together. I cannot do that because she left me. I am in the process of reconciling with her. Does that mean she can be allowed in the country if I send her the EAD card through the mail or is that process completely dead and I should think of starting a spousal process. Any information would be appreciated

Take a flight to your wife , carry the AP with you and try coming back together. If she is paroled in, immediately file another I-485 and I-130 . DO NOT withdraw the previous I-485, it will be dealt with at interview for the 2nd I-485. …Of course that means you do ALL of this BEFORE the RFE deadline. 
 

She should tell the truth ( not the romance gone wrong long story) at all interaction w CBP..I have an I-485 and AP pending, left on xyz date. ..

 

Are you sure you don’t want to take a breather and see if the reconciliation sticks?  Your statement of “in the process “ of getting back together after “ she left me” makes me very very skeptical 
 

Edited January 10, 2023 by Family

[David Mpoyi 8]

5 minutes ago, Family said:

Take a flight to your wife , carry the AP with you and try coming back together. If she is paroled in, immediately file another I-485 and I-130 . DO NOT withdraw the previous I-485, it will be dealt with at interview for the 2nd I-485. …Of course that means you do ALL of this BEFORE the RFE deadline. 
 

She should tell the truth ( not the romance gone wrong long story) at all interaction w CBP..I have an I-485 and AP pending, left on xyz date. ..

 

Are you sure you don’t want to take a breather and see if the reconciliation sticks?  Your statement of “in the process “ of getting back together after “ she left me” makes me very very skeptical 
 

Honestly that is a valid question to ask. But we have in contact and what makes this process  difficult is that there is a child involved. She left when she was pregnant.