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

[Rocio0010 5,579]

16 minutes ago, davidvs said:

Maybe not if she leaves in May on her return ticket?

Yeah, maybe. But that was never her intention and she misrepresented herself with CBP....

[Mike E 11,739]

14 hours ago, Ritzrulz said:

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

 

 

Your  mother lied to a federal officer at the port of entry. This is misrepresentation.  A lifetime ban. 
 

Thus I disagree with your lawyer and those whose agree with you lawyer.  
 

it isn’t too  late to recover. 
Withdraw the I-130. File a new I-130 specifying consular processing and only consular processing.  Put mom on that flight on time. Or before. Once mom returns, the misrepresentation doesn’t exist. 
 

14 hours ago, Ritzrulz said:

. But now she is back in US since Nov 22 and she entered on B2 visa where CBP didn’t question her. 

But she was questioned as per your other comment.  You not  telling the truth doesn’t help us help you to help her.  

 

I am out.  
 

5 hours ago, Daphne . said:

This could be considered misrepresentation because she never intended to go back when she was admitted..

Thanks for the catch.  I’d asked my question several times and didn’t notice it was answered.  
 

 

Edited March 3, 2023 by Mike E

[Ritzrulz 6]

 

9 hours ago, Jorgedig said:

Most definitely fraud.   The plans didn’t “change” once inside the US.   It was always the plan to adjust.   Such a disservice to those who are waiting their turns in that long Mumbai queue…

I appreciate the advice not the insinuation.She did not plan to adjust. And she is not doing any disservice to any people. She has been coming to US for 5 months a year every year for the past 13 years and has always gone back. During one of the visits due to Covid she had overstayed, but for that also we had filed an extension request, for which the response never came and she left with the receipt in hand within 2 months as soon as the flights opened up.

 

We applied for her GC since its was becoming difficult for her to travel so often and she stays alone in India and I am her only kid. As mentioned we were scared when she was asked why did she overstay and we thought we should send her back at 6 months and not jeopardize her GC process (which we unintentionally ended up doing)

 

For close to 13 months there was no movement on her GC application so we thought it might be stuck and we will reapply once we get a rejection and let her visit on B2 this year.

 

Again we know we have done a mistake for which we are willing to face consequences and are not blaming anyone but just seeing if there is way to correct the mistake. If not fine, so be it.  

 

[Ritzrulz 6]

3 minutes ago, Mike E said:

Your  mother lied to a federal officer at the port of entry. This is misrepresentation.  A lifetime ban. 
 

Thus I disagree with your lawyer and those whose agree with you lawyer.  
 

it isn’t too  late to recover. 
Withdraw the I-130. File a new I-130 specifying consular processing and only consular processing.  Put mom on that flight on time. Or before. Once mom returns, the misrepresentation doesn’t exist. 
 

But she was questioned as per your other comment.  You not  telling the truth doesn’t help us help you to help her.  

 

I am out.  
 

Thanks for the catch.  I’d asked my question several times and didn’t notice it was answered.  
 

 

what I meant was CBP didn't question her why she was traveling when her AOS was pending.She could have been denied entry and we would be perfectly fine after learning the rules. the CBP asked her for how long she was staying and she has that marked on her passport that she returning on May 4th as she already has her tickets and she did plan to return. 

[Family 3,988]

34 minutes ago, Ritzrulz said:

Again we know we have done a mistake for which we are willing to face consequences and are not blaming anyone but just seeing if there is way to correct the mistake. If not fine, so be it.

Do not compound the mistake by having your mom leave the US . It’s difficult and even impossible to challenge a consulate denial .  
 

The  topic of leaving without AP comes up pretty regularly, hope this helps, although this entry was a bit different . 

 

Edited March 3, 2023 by Family

[Rocio0010 5,579]

17 hours ago, Ritzrulz said:

she came back on Nov 22 on b2 and was not questioned. 

You said she wasn't planning to adjust, and I think you're misunderstanding. That's actually what led you to make that mistake. 

She had a B1- B2 which she used to enter. She also had a pending AOS. That's the misrep: you're not supposed to knowingly enter on a B1 B2 and intent to adjust!

[SalishSea 17,745]

57 minutes ago, Ritzrulz said:

 

I appreciate the advice not the insinuation.She did not plan to adjust. And she is not doing any disservice to any people. She has been coming to US for 5 months a year every year for the past 13 years and has always gone back. During one of the visits due to Covid she had overstayed, but for that also we had filed an extension request, for which the response never came and she left with the receipt in hand within 2 months as soon as the flights opened up.

 

We applied for her GC since its was becoming difficult for her to travel so often and she stays alone in India and I am her only kid. As mentioned we were scared when she was asked why did she overstay and we thought we should send her back at 6 months and not jeopardize her GC process (which we unintentionally ended up doing)

 

For close to 13 months there was no movement on her GC application so we thought it might be stuck and we will reapply once we get a rejection and let her visit on B2 this year.

 

Again we know we have done a mistake for which we are willing to face consequences and are not blaming anyone but just seeing if there is way to correct the mistake. If not fine, so be it.  

 

You can frame it however it suits, but I stand by what I said.  She has a pending AOS, and therefore her intention with her last entry was not "tourism," but immigration.  

 

The fact that she did not get "caught" doesn't change the intention.

 

Like Mike, I'm out.

 

[Ritzrulz 6]

28 minutes ago, Family said:

Do not compound the mistake by having your mom leave the US . It’s difficult and even impossible to challenge a consulate denial .  
 

The  topic of leaving without AP comes up pretty regularly, hope this helps, although this entry was a bit different . 

 

thanks. this is helpful . we will consult a couple of lawyers and take the most honest approach. If it still is denied we have only ourselves to blame.

[Cathi 5,740]

11 hours ago, Jorgedig said:

you may well have added several years to the process.

And several thousand dollars.

[Cathi 5,740]

8 minutes ago, Ritzrulz said:

thanks. this is helpful . we will consult a couple of lawyers and take the most honest approach. If it still is denied we have only ourselves to blame.

Honesty is your only option, ever, with U.S immigration. Misrepresentation can and sometimes does come with a lifetime ban.

[Dashinka 24,372]

6 minutes ago, Jorgedig said:

You can frame it however it suits, but I stand by what I said.  She has a pending AOS, and therefore her intention with her last entry was not "tourism," but immigration.  

 

The fact that she did not get "caught" doesn't change the intention.

 

Like Mike, I'm out.

 

In a way, leaving the US with the I485 pending and no AP shows the opposite of immigration intent, it shows they were willing to abandon their AOS similar to someone signing an I407 or renouncing their citizenship.

 

To the OP, your item is very nuanced, I tend to agree with @Mike E regarding just proceeding with consular processing, but that is up to you.  The one thing I would like to suggest is revisiting what works best for your mother.  If she has a need to keep going back and forth, don't bother with AOS, let her use her B2.  If she is unsure about being an LPR, don't waste your money.  I have some friends that brought parents over with GCs, and the parent decided they did not want to live permanently in the US.

[SalishSea 17,745]

11 minutes ago, Dashinka said:

In a way, leaving the US with the I485 pending and no AP shows the opposite of immigration intent

Right.  I wasn't referring to leaving without AP. 

 

The OP's mom entered the US on a B (non-immigrant) visa with a pending AOS.  The round-trip ticket and use of the B2 when the adjustment of status process was in place prior to that entry could be a material misrep.

[Dashinka 24,372]

1 minute ago, Jorgedig said:

Right.  I wasn't referring to leaving without AP. 

 

The OP's mom entered the US on a B (non-immigrant) visa with a pending AOS.  The round-trip ticket and use of the B2 when the adjustment of status process was in place prior to that entry could be a material misrep.

I guess I am not completely judging since we really are not sure what the mother wants.

[beloved_dingo 1,976]

I'd like to ask some clarifying questions. 

 

1. You said your mom returned to the U.S. in Nov. 22. When did you all learn that her leaving the country abandoned AOS?

2. Did your mom know, when she returned in Nov. 22, that her AOS was abandoned, or did she believe everything was fine with the I-485 at that point?

3. Did your mom actually plan to return to her home country in May when she arrived back in the U.S.? Or did she know she would likely be staying indefinitely?

 

Regardless of the answers to the above questions, there is a Catch-22 created by this sitation which is why people are cautioning that this could be misrepresentation.

 

To further explain:

 

1. If your mom thought her AOS was still valid and processing normally when she returned in Nov. 22, then she also knew she wasn't just visiting. Adjusting status is not "tourism". 

2. If your mom thought her AOS was abandoned when she returned in Nov. 22, then she likely  either a) thought she should no longer AOS and planned to just visit or b) she knew that she would try AOS again. If a) is true she could be fine refiling but if b) is true there could be misrep. 

3. If your mom did not understand that she could not leave and return to visit as she pleased, then she could possibly have planned to just visit AND also believed her AOS application would still process as normal. This wouldn't be misrep imo BUT the burden is on her to know the rules, and this could still cause issues because USCIS may not believe it was all through pure ignorance.

 

It is often said here that CBP and USCIS presume immigrant intent by default, and the burden is on the immigrant to demonstrate otherwise. This is the hurdle you are facing.

 

So, imo yes there is a chance that filing another I-485 would work out in the end with no major issues if the more favorable scenarios above apply to her and USCIS believes it. However, there is also a chance that USCIS determines she misrepresented herself. If that happens she could get a lifetime ban. 

 

Consular processing could be safer, but obviously she would have to leave and visiting on a B2 in the meantime is always at the discretion of CBP. 

[Ritzrulz 6]

1 hour ago, beloved_dingo said:

I'd like to ask some clarifying questions. 

 

1. You said your mom returned to the U.S. in Nov. 22. When did you all learn that her leaving the country abandoned AOS?

2. Did your mom know, when she returned in Nov. 22, that her AOS was abandoned, or did she believe everything was fine with the I-485 at that point?

3. Did your mom actually plan to return to her home country in May when she arrived back in the U.S.? Or did she know she would likely be staying indefinitely?

 

Regardless of the answers to the above questions, there is a Catch-22 created by this sitation which is why people are cautioning that this could be misrepresentation.

 

To further explain:

 

1. If your mom thought her AOS was still valid and processing normally when she returned in Nov. 22, then she also knew she wasn't just visiting. Adjusting status is not "tourism". 

2. If your mom thought her AOS was abandoned when she returned in Nov. 22, then she likely  either a) thought she should no longer AOS and planned to just visit or b) she knew that she would try AOS again. If a) is true she could be fine refiling but if b) is true there could be misrep. 

3. If your mom did not understand that she could not leave and return to visit as she pleased, then she could possibly have planned to just visit AND also believed her AOS application would still process as normal. This wouldn't be misrep imo BUT the burden is on her to know the rules, and this could still cause issues because USCIS may not believe it was all through pure ignorance.

 

It is often said here that CBP and USCIS presume immigrant intent by default, and the burden is on the immigrant to demonstrate otherwise. This is the hurdle you are facing.

 

So, imo yes there is a chance that filing another I-485 would work out in the end with no major issues if the more favorable scenarios above apply to her and USCIS believes it. However, there is also a chance that USCIS determines she misrepresented herself. If that happens she could get a lifetime ban. 

 

Consular processing could be safer, but obviously she would have to leave and visiting on a B2 in the meantime is always at the discretion of CBP. 

thanks for asking these questions 

 

We learnt about her leaving country would abandon AOS last week when we suddenly received an RFE for medicals and then when we were talking to a few folks they highlighted that she should not have left the country. 

 

She had actually no clue what was going on as we had no communication form USCIS for after filing almost a year back

 

And yes she actually planned to return back as she had some trips planned back in India and she also brings medications for only her planned visit. Now I have tried justifying on this thread multiple times that she did not willfully misrep, but some users are hellbent on proving that she has been doing a fraud and I don't seem to understand the continuous pestering on other threads too. 

 

At this point we are just trying to figure out options and looking for people to share their experiences with USCIS if they have been in somewhat remotely similar situation 

Edited March 3, 2023 by Ritzrulz
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