Abandoned AOS and now regret it

[Crazy Cat 42,682]

3 minutes ago, Mariammaria said:

I'm just thinking it might look good that I reached out lol..

It will come out regardless.  I would not offer anything which could open up more questions. 

[NorthByNorthwest 381]

 

27 minutes ago, Crazy Cat said:

But the Adjustment of Status was abandoned....I assume unlawful presence started after the I-94 expired.  If I am wrong, the OP has even less than 5 months overstay. 

 

The way I read the regulations there has been no unlawful presence this case. Even if OP's AOS had been denied she would typically have 30 days to depart before any unlawful presence accrues, and I can't imagine abandonment of a bona-fide AOS application would be treated worse than an outright denial.

 

 

45 minutes ago, Mariammaria said:

I still have my ESTA available until July 2025

 

I would think you'll face a LOT of scrutiny traveling on ESTA in your current situation.

Edited yesterday at 04:18 PM by NorthByNorthwest

[Crazy Cat 42,682]

20 minutes ago, NorthByNorthwest said:

 

True, but abandoned at the same time as leaving the country, is there a regulation somewhere noting that unlawful presence can accrue retroactively in this case? Looking around a bit I see some folks thinking that may be the case, but I'm not finding any real reference?

OK.  I think you are right.  After your comments and a little more research, I believe unlawful presence starts when the I-485 is abandoned.  I do not believe it would be retroactive to the I-94 expiration.  Thus, the OP filed a proper I-485 prior to expiration of the I-94, and there was no unlawful presence.

Edited yesterday at 04:15 PM by Crazy Cat

[Crazy Cat 42,682]

4 minutes ago, NorthByNorthwest said:

The way I read the regulations there has been no unlawful presence this case.

After I did more research, I agree 100%.  

Edited yesterday at 04:19 PM by Crazy Cat

[Boiler 46,356]

It does not matter even in the worst case scenario it is under 6 months.

[JKLSemicolon 442]

53 minutes ago, Crazy Cat said:

It will come out regardless.  I would not offer anything which could open up more questions. 

I mentioned this to the OP over private message but will include it here for everyone’s benefit: when we went through a similar situation, I (the USC and eventual 1-130 petitioner) sent a letter to USCIS letting them know that my wife left the country for personal reasons before Advanced Parole was was available and that we would be pursuing a spousal visa instead. I kept the letter very brief but my reasoning was not to waste their time reviewing a case that was abandoned. They sent a prompt response which, in my opinion, would not have come as quickly if at all had I not reached out first, and I included a copy of my letter and that response as one of the supplemental attachments when filing the I-130 online.

 

However, that’s certainly not required and at the time was not the prevailing advice on VJ. 

[Boiler 46,356]

I see no harm in closing things with USCIS, they will not know unless you tell them, well they will find out if you continue.

 

Usually a good idea to avoid potential misunderstandings

[JD2 105]

15 hours ago, Mariammaria said:

August 2024 applied for AOS

If you applied for AOS in Aug. 2024, wouldn't you have filed an I-130?  That I-130 is still good I believe.  I think only the I-485 is abandoned.

[JD2 105]

13 hours ago, Crazy Cat said:

The I-130 will ask about any previous petitions filed.  

Wouldn't the original I-130 filed still be good?  I thought only I-485s are abandoned if you leave before advance parole??

[SalishSea 18,237]

21 minutes ago, JD2 said:

Wouldn't the original I-130 filed still be good?  I thought only I-485s are abandoned if you leave before advance parole??

They wouldn’t have filed an I-130 when adjusting from a K-1, unless the marriage was not within the 90 days.

[JD2 105]

1 hour ago, SalishSea said:

They wouldn’t have filed an I-130 when adjusting from a K-1, unless the marriage was not within the 90 days.

Oh shoot.  Sorry.  Ignore my post OP.

[igoyougoduke 1,677]

22 hours ago, Mariammaria said:

Please be nice, I know I made a mistake and I am already destroyed. 
But got my K1 approved and this was my timeline:
June 25, 2024 arrived in the US
July 2024 got married 
August 2024 applied for AOS
February 25, 2025 left the US (abandoned my AOS). Went back to my home country. 
 

My K1 says available until September 2024. Does that mean I did NOT overstay to ‘qualify’ for a 3 year ban (less than 180 days) and I would be able to apply for a CR1 from my home country? 
Or will I actually get a 3 year ban for this? 

There is NO ban in your case and neither did you overstay . you were in legal pending AOS status from i-485 application day to until they day you left US. i see no issues here .

 

Yes you can apply CR1 when you want.

[appleblossom 3,398]

21 hours ago, Mariammaria said:

 

We got married in 2024, IR1 is for marriages that are +2 years right? 

Yes, yours will be by the time you enter on your immigrant visa so you will be IR1.
 

Good luck. 

[Mariammaria 0]

6 hours ago, appleblossom said:

Yes, yours will be by the time you enter on your immigrant visa so you will be IR1.
 

Good luck. 

Is the application process different? Or will they just see that when they are issuing me my green card? 
appreciate your comment!

[NorthByNorthwest 381]

46 minutes ago, Mariammaria said:

Is the application process different? Or will they just see that when they are issuing me my green card? 
appreciate your comment!

 

Exactly the same process, you use form I-130. Length of marriage when visa is issued (or at POE depending on who you ask) determines if you get a conditional GC or not.

Just to reinforce earlier comments, given your marriage and demonstrated immigration intent your chances of reentering the US on either ESTA or a visitor visa are pretty much zero, you'll be meeting somewhere else until you have IR1/CR1 in hand.