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

[retheem 564]

Withdraw the I-485 and re-apply. Problem solved. And do not let your mum leave until she has the green card.

[Boiler 45,449]

21 minutes ago, Ritzrulz said:

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 

Let us go back to basics, she applied to adjust status but seems this was a mistake as it interferes with her plans. She now just has the I 130 rolling so why not just go Consulate?

[Rocio0010 5,579]

46 minutes ago, Ritzrulz said:

she did not willfully misrep

It is not so much whether the misrepresentation was willful. It's more whether it was a material misrep, which it was. Had she said she was planning on adjusting status, she would have been denied entry. Hope that makes sense.

 

The other thread someone linked here is nowhere close to your situation, because OPs wife entered on an AP which was mailed to her. She did not enter on a tourist visa.

41 minutes ago, retheem said:

Withdraw the I-485 and re-apply. Problem solved. And do not let your mum leave until she has the green card.

Hopefully you read the whole thread and analyzed it carefully before giving such advice...

[beloved_dingo 1,976]

48 minutes ago, Rocio0010 said:

It is not so much whether the misrepresentation was willful. It's more whether it was a material misrep, which it was. Had she said she was planning on adjusting status, she would have been denied entry. Hope that makes sense.

 

The other thread someone linked here is nowhere close to your situation, because OPs wife entered on an AP which was mailed to her. She did not enter on a tourist visa.

Hopefully you read the whole thread and analyzed it carefully before giving such advice...

This is the crux of the issue. But CBP also believed she intended to return home in May, and she apparently really did intend to return home since she didn't understand the situation at hand. Does her intent matter more or less than her misunderstanding of AOS rules? Not sure.

[Rocio0010 5,579]

33 minutes ago, beloved_dingo said:

This is the crux of the issue. But CBP also believed she intended to return home in May, and she apparently really did intend to return home since she didn't understand the situation at hand. Does her intent matter more or less than her misunderstanding of AOS rules? Not sure.

I fully understand and even agree with what you’re saying. However, the law should be the law because then anybody any day can lie and say “oh I did not understand the rules, sorry, too bad, but I’m adjusting status”. Not saying OPs mom did that, but as we say in Spanish “sienta un precedente”, meaning it can lead other people to do the same if USCIS doesn’t apply the law

[Marieke H 2,496]

Does she even want to live in the US permanently? It sounds like she has lots of things to do back in India, so making her go through the AOS process without the possibility to travel back and forth does not seem like the best option for her. AOS can be a LONG process, and she can not leave the country without AP or a greencard.

[Lemonslice 4,831]

34 minutes ago, Rocio0010 said:

I fully understand and even agree with what you’re saying. However, the law should be the law because then anybody any day can lie and say “oh I did not understand the rules, sorry, too bad, but I’m adjusting status”. Not saying OPs mom did that, but as we say in Spanish “sienta un precedente”, meaning it can lead other people to do the same if USCIS doesn’t apply the law

The law is clear though, intent is determined at entry, and CBP had no problem with his mom's arrival (otherwise, she would have been on the next flight back to India).  

[Family 3,988]

On 3/3/2023 at 10:21 AM, Ritzrulz said:

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

Hopefully you have realized the value of VJ search button, in your quest for shared experiences, there have been others facing same circumstances as mom. 
Your attorney’s advice was correct , just reapply as soon as possible. 

[Chancy 6,241]

*** Moved from Bringing Family of USC forum to AOS from Work/Student/Tourist Visas forum -- topic is about AOS of parent ***