Mother went back to India and entered on B2 visa while 485 was pending without AP

[Ritzrulz 6]

Hi,
We applied for 485 for my mother while she was in US but since things were not moving and she was near her 6 month stay limit she went back. During her previous visit she overstayed due to covid and she was questioned at entry even after we had applied for her overstay request. So this time we were sacred and  unknowingly sent her back without AP and she came back on Nov 22 on b2 and was not questioned. 

Now while talking to a lawyer and looking up online we figured that she might have done wrong and her AOS will be denied. the lawyer advised we call USCIS and tell them to reject our 485 and then we apply again. 

Will this have an in impact on GC decision since we were not aware and can it nullify her B2 visa also. we are planning to consult another lawyer too to have a second opinion

[powerpuff 6,682]

So is she in the US right now? 

[Ritzrulz 6]

Yes. And we were following up her on here pending GC application and  received an RFE for medicals. While researching on medical and talking to a few folks we realized that she cannot leave the country (which she did). the lawyer whom we spoke to was surprised that how was she allowed to re-enter on B2

Edited March 2, 2023 by Ritzrulz
typo

[Mike E 11,739]

Surprised the lawyer said she can file I-485 again since she clearly entered the USA with immigration intent. 
 

Did she talked to a CBP officer at the port of entry?

[Ritzrulz 6]

Not sure if I understood your question. the lawyer mentioned I need to inform USCIS and get the 485 denied for abandonment and then file again.

 

CBP just checked her B2 Visa

[powerpuff 6,682]

This is a very messy situation. Entering on a non-immigration visa with an intent to adjust status is immigration fraud. This is clearly what happened, she came back with the intention to stay and adjust status. This is beyond a DIY situation. I would also look for a different attorney. 
 

In life I go with “better safe than sorry” mindset. If this was my mother I’d have her go back to India and apply for a proper immigrant petition so she can get an IR5 visa at a US consulate in order to avoid the possibility of her receiving a ban for misrepresentation.

Edited March 2, 2023 by powerpuff

[Mike E 11,739]

40 minutes ago, Ritzrulz said:

then file again.

right. I am surprised. 

40 minutes ago, Ritzrulz said:

 

CBP just checked her B2 Visa

So the officer didn’t ask her:

 

”how long do you plan to stay?”

 

? 
 

Did she  have a return ticket (from the USA) booked when she traveled back to the USA?

[Ritzrulz 6]

Yes she had a return ticket for may 2023.

 

Frankly speaking it was a big miss on our side to let her travel back. We were scared because During her 2021 visit we had to extend her stay after filing an extension request for which the approval never came due to COVID backlogs. When she came back in early 2022 she was asked why did she overstay by CBP and they let her in. So w  promptly send her back in May 2022 before her 6 months so that she was not violating overstay and have an impact on her GC application

 

We should have let her stay and not travel back.

[Mike E 11,739]

17 minutes ago, Mike E said:

So the officer didn’t ask her:

 

”how long do you plan to stay?”

 

? 

 

[Boiler 45,445]

USCIS may or may not know at the moment she abandoned her adjustment, but she did.

 

I am wondering if Consulate processing would be quicker.

[Mike E 11,739]

2 minutes ago, Boiler said:

 .

 

I am wondering if Consulate processing would be quicker.

With the I-824 needing to be filed after the I-130 is approved I would say so. However,  I don’t know if consular processing can be requested before I-130 is approved. 

[Ritzrulz 6]

22 minutes ago, Mike E said:

 

She showed her ticket when she was asked when is she returning back. So by May 2023

 

 

[Ritzrulz 6]

10 minutes ago, Mike E said:

With the I-824 needing to be filed after the I-130 is approved I would say so. However,  I don’t know if consular processing can be requested before I-130 is approved. 

I was told by the lawyer that the USCIS will know that she has traveled outside. Even if she for some magical reason sails through the consular process she may face problems later or during her citizenship. Does CP provide any benefit or allow her to explain that she left as a mistake unknowingly. (I know it sounds foolish but honestly we missed it and that’s it we don’t want to make stories around it)

[Boiler 45,445]

1 minute ago, Ritzrulz said:

I was told by the lawyer that the USCIS will know that she has traveled outside. Even if she for some magical reason sails through the consular process she may face problems later or during her citizenship. Does CP provide any benefit or allow her to explain that she left as a mistake unknowingly. (I know it sounds foolish but honestly we missed it and that’s it we don’t want to make stories around it)

Why would she have issues with the Consulate? Or later?

[Ritzrulz 6]

1 minute ago, Boiler said:

Why would she have issues with the Consulate? Or later?

By consular processing you mean she goes back to India and requests at a US embassy in India for her I-130