Interview Letter from Consulate after AOS submitted. Help???

[AP_since_May2023 37]

HELP PLEASE. 

I applied for AOS 1 week after being told that there was “heavy backlog” by the Consulate and they are unable to expedite my case despite very valid reasons. 

3 weeks after submitting my AOS/EAD/AP application, I received IL from the Consulate with interview scheduled for May 2023. 

Am I still allowed to do Consular Processing? 

I’m really lost… Help? 

I’m on an O1 visa, and spouse is on a TN visa. Approved I-140. Cheques for I-485 have been cashed. 

[Allaboutwaiting 2,503]

I think you can go to the interview. Not sure what exactly would prevent you from attending.

 

Whether AOS from O1 or EB2, the goal is the same: becoming an LPR. You'll get there quicker if approved in May at the embassy/ consulate. 

 

It is very similar to what some applicants have been doing lately, filing an IR1 and K3 at the same time. 

Edited April 1, 2023 by Allaboutwaiting

[AP_since_May2023 37]

16 minutes ago, Allaboutwaiting said:

I think you can go to the interview. Not sure what exactly would prevent you from attending.

 

Whether AOS from O1 or EB2, the goal is the same: becoming an LPR. You'll get there quicker if approved in May at the embassy/ consulate. 

 

It is very similar to what some applicants have been doing lately, filing an IR1 and K3 at the same time. 

2 main things preventing us from attending the interview:

1) Interview Letter / DS-260 will be voided/invalid. USCIS has yet to recall the approved I-140 petition from NVC/Embassy given my AOS was filed recently. But by the time my interview comes around, the I-140 petition may have been recalled back to USA.

2) My wife is on a TN visa. Given that we have applied for AOS, I know that she cannot reapply for another TN visa. However, we are not sure if her existing TN visa will be invalid if we leave the country.

[Allaboutwaiting 2,503]

21 minutes ago, SGtoMurica said:

2 main things preventing us from attending the interview:

1) Interview Letter / DS-260 will be voided/invalid. USCIS has yet to recall the approved I-140 petition from NVC/Embassy given my AOS was filed recently. But by the time my interview comes around, the I-140 petition may have been recalled back to USA.

2) My wife is on a TN visa. Given that we have applied for AOS, I know that she cannot reapply for another TN visa. However, we are not sure if her existing TN visa will be invalid if we leave the country.

Well, that is the risk I guess: if you attend the interview, the AOS process would be considered as abandoned and it depends on the consular officer if any visa the applicant has is canceled or not; so if the EB is not approved or it is delayed, you'd be unable to return to the US.

 

And not sure why the USCIS should recall the approved I-140. It is my understanding that processes can run concurrently. 

[AP_since_May2023 37]

3 hours ago, Allaboutwaiting said:

Well, that is the risk I guess: if you attend the interview, the AOS process would be considered as abandoned and it depends on the consular officer if any visa the applicant has is canceled or not; so if the EB is not approved or it is delayed, you'd be unable to return to the US.

 

And not sure why the USCIS should recall the approved I-140. It is my understanding that processes can run concurrently. 

Have you seen instances where someone was in a similar situation as us? 

[Allaboutwaiting 2,503]

2 hours ago, SGtoMurica said:

Have you seen instances where someone was in a similar situation as us? 

This is one of many articles you will find when searching I-140 and I-485 concurrent filing: 

https://www.greencardlawyers.com/greencards/adjustment/ConcurrentFiling.html

[jan22 3,053]

7 hours ago, Allaboutwaiting said:

....

And not sure why the USCIS should recall the approved I-140. It is my understanding that processes can run concurrently. 

The I-140 and I-485 can be filed concurrently.  When that is done, both forms are, of course, with USCIS.  You can also file the I-145 after the I-140 before it (the I-140) is approved.  Again, both forms will then be with USCIS.   You can have two different categories of petitions and choose different processing streams for each.  However, consular processing and AOS cannot run concurrently when there is only one petition. 

 

The petition needs to be with the officer who is adjudicating the case -- whether it is a visa case at the Embassy or an AOS case with USCIS.  USCIS cannot adjudicate the I-485 without having the approved petition on which it is based.  The petition is no longer in the hands of USCIS; it is at the the Embassy. So, they will need to get the petition back from the Embassy (i.e., "recall it") before the AOS adjudication can occur.

 

OP:  Since it's only been 3 weeks, you may be able to cancel the AOS request and ask that USCIS not request the return If the petition from the Embassy, as your plans have changed and you now want to continue with consular processing.  if you decide to do this, I would also send an email to the Embassy telling them the same information -- that you had applied for AOS but have cancelled it and now want to continue consular processing. They might then at least check with USCIS before returning the petition to them if the return request has already gone through. 

[Allaboutwaiting 2,503]

7 minutes ago, jan22 said:

The I-140 and I-485 can be filed concurrently.  When that is done, both forms are, of course, with USCIS.  You can also file the I-145 after the I-140 before it (the I-140) is approved.  Again, both forms will then be with USCIS.   You can have two different categories of petitions and choose different processing streams for each.  However, consular processing and AOS cannot run concurrently when there is only one petition. 

 

The petition needs to be with the officer who is adjudicating the case -- whether it is a visa case at the Embassy or an AOS case with USCIS.  USCIS cannot adjudicate the I-485 without having the approved petition on which it is based.  The petition is no longer in the hands of USCIS; it is at the the Embassy. So, they will need to get the petition back from the Embassy (i.e., "recall it") before the AOS adjudication can occur.

 

OP:  Since it's only been 3 weeks, you may be able to cancel the AOS request and ask that USCIS not request the return If the petition from the Embassy, as your plans have changed and you now want to continue with consular processing.  if you decide to do this, I would also send an email to the Embassy telling them the same information -- that you had applied for AOS but have cancelled it and now want to continue consular processing. They might then at least check with USCIS before returning the petition to them if the return request has already gone through. 

The I-485 is necessary anyway when an I-140 is filed.

Even though OP filed the I-485 NOT based on the I-140, they would still need one. 

 

The I-485 has not being processed yet, so there should be a possibility of USCIS taking that form as part of the I-140 and not as an AOS from the O1.

[jan22 3,053]

28 minutes ago, Allaboutwaiting said:

The I-485 is necessary anyway when an I-140 is filed.

Even though OP filed the I-485 NOT based on the I-140, they would still need one. 

 

The I-485 has not being processed yet, so there should be a possibility of USCIS taking that form as part of the I-140 and not as an AOS from the O1.

???  I'm confused, especially by your last sentence. 

 

An I-485 is not required when filing an I-140 if the applicant plans to pursue consular processeeing.  The I-140 in this case is already approved and is at the Embassy, so I assume that is what the petitioner chose to do.

 

Concerning your last sentence -- if I understood it -- you are saying that USCIS should count that approved I-140 as the underlying basis for the AOS that was just filed.  If that is what you meant, that is exactly right. It is the ONLY basis they have for adjudicating an AOS application.  However, they cannot do that without getting the petition returned to tgem by the Embassy. 

 

Im not sure why you said they filed the I-145 not based on the I-140.  l believe that is exactly what they did. There is no way to directly file for AOS without also filing a petition, i.e., there is no "AOS from the O1" without filing an immigration petition such as an EB-1A, which I'm sure is what the OP did.  (You can file for a Change of Status to some other non-immigrant visa categories without a petition, but not an Adjustment of Status to permanent residency).

 

Perhaps the confusion is fueled by OP's use of the word "recall" in regards to USCIS requesting the petition back from the Embassy, as that word is frequently used in a context of cancelling something?   Here it would just mean asking for the petition to be returned to USCIS so the AOS could be adjudicated.

Edited April 1, 2023 by jan22

[AP_since_May2023 37]

37 minutes ago, jan22 said:

The I-140 and I-485 can be filed concurrently.  When that is done, both forms are, of course, with USCIS.  You can also file the I-145 after the I-140 before it (the I-140) is approved.  Again, both forms will then be with USCIS.   You can have two different categories of petitions and choose different processing streams for each.  However, consular processing and AOS cannot run concurrently when there is only one petition. 

 

The petition needs to be with the officer who is adjudicating the case -- whether it is a visa case at the Embassy or an AOS case with USCIS.  USCIS cannot adjudicate the I-485 without having the approved petition on which it is based.  The petition is no longer in the hands of USCIS; it is at the the Embassy. So, they will need to get the petition back from the Embassy (i.e., "recall it") before the AOS adjudication can occur.

 

OP:  Since it's only been 3 weeks, you may be able to cancel the AOS request and ask that USCIS not request the return If the petition from the Embassy, as your plans have changed and you now want to continue with consular processing.  if you decide to do this, I would also send an email to the Embassy telling them the same information -- that you had applied for AOS but have cancelled it and now want to continue consular processing. They might then at least check with USCIS before returning the petition to them if the return request has already gone through. 

Thank you for your detailed response. 

 

Is there a chance that the US Consulate in Singapore could revoke my O-1 and my wife's TN status while we are there, given that we had expressed immigrant intent through AOS?

 

If not, even if our Consular Processing Interview goes poorly, as long as we are allowed to return to US on our existing O-1 & TN to work, we can always restart the I-140 (with premium processing) & I-485 again.

[jan22 3,053]

14 minutes ago, SGtoMurica said:

Thank you for your detailed response. 

 

Is there a chance that the US Consulate in Singapore could revoke my O-1 and my wife's TN status while we are there, given that we had expressed immigrant intent through AOS?

 

If not, even if our Consular Processing Interview goes poorly, as long as we are allowed to return to US on our existing O-1 & TN to work, we can always restart the I-140 (with premium processing) & I-485 again.

While there is always a chance, I would not expect any issues with the visa processing unless there are immigration issues you have had in the past that you haven't discussed here.   And, if that is the case, those would also cause issues for USCIS and the AOS.

 

More importantly, the O-1 is a "dual intent" visa -- you can have it and use it as an NIV while you are pursuing permanent residency.

 

They should, of course, cancel those visas when they issue the immigrant visas, but by that time, you won't care!

Edited April 1, 2023 by jan22

[Allaboutwaiting 2,503]

15 minutes ago, jan22 said:

???  I'm confused, especially by your last sentence. 

I'll try to be clearer this time. LOL

 

OP is concerned about having the current visas revoked, which is likely. And there's also the possibility of the visa being delayed or denied. 

 

So, what I'm wondering is if it is possible to continue with the I-140 not through consular processing but with a concurrent I-485 using the one they already filed - which was originally based on their current visas-.

 

That way they don't need to leave the US, abandon AOS and pay for a new I-485.

Edited April 1, 2023 by Allaboutwaiting

[jan22 3,053]

4 minutes ago, Allaboutwaiting said:

I'll try to be clearer this time. LOL

 

OP is concerned about having the current visas revoked, which is likely. And there's also the possibility of the visa being delayed or denied. 

 

So, what I'm wondering is if it is possible to continue with the I-140 not through consular processing but with a concurrent I-485 using the one they already filed - which was originally based on their current visas-.

 

That way they don't need to leave the US and abandon AOS.

It's possible, of course.  But that requires USCIS to get the petition back from the Embassy.  (And, once again, I don't think they filed the AOS just on the basis of their current visas -- not possible.)

 

An O-1 is a dual intent visa, so can kept and used as an NIV even while someone is pursuing permanent residency.

Edited April 1, 2023 by jan22

[Allaboutwaiting 2,503]

2 minutes ago, jan22 said:

It's possible, of course.  But that requires USCIS to get the petition back from the Embassy.

 

An O-1 is a dual intent visa, so can kept and used as an NIV even while someone is pursuing permanent residency.

So that one should not be revoked during interview? 

What about the wife's TN?

Edited April 1, 2023 by Allaboutwaiting

[AP_since_May2023 37]

12 hours ago, Allaboutwaiting said:

So that one should not be revoked during interview? 

What about the wife's TN?

I don't think my O-1 will ever be revoked given it is considered partial "dual intent".

However, it is not clear if my wife's TN will be revoked at the interview, since she has expressed immigrant intent. My sense is that her existing one will not be revoked, but she just cannot renew her TN in the future. I don't know if even lawyers will have an answer to this question, to be honest...