On F-1, I-485 rejected because of no I-131

[jfowes 0]

My wife and I recently submitted paperwork to adjust her status from an F-1 to receive a green card. We have been married for over two years, her F-1 student visa is current as she is still enrolled. At the time of filing the I-485, we did not file an I-131. It is my recollection that the when I called the 1-800 number I was told this was not necessary because she had a valid F-1 visa. So we continue through the process and the interview, she leaves the country multiple times visiting family, presenting at conferences, and then yesterday here comes an ugly letter saying the application is denied due to statute 245 and the departure from the country being considered an abandonment of the application!! x amount of dollars to file a motion to re-open, which must take place within 30 days, etc....

Any advice? Is there any point in filing a motion to re-open, does the whole process have to start from scratch? Help pls ...

[YuAndDan 153]

File the motion to re-open, I suspect the fee is less than $1010+$355 (I-485+I-130) adjustment of status.

But yes, the only visa type that can continue to use the visa for travel is K-3 Spousal visa.

I-131:

NOTE: If you are in the United States and wish to travel abroad, you do not need to apply for advance parole if both conditions described below in A and B are met:

A. You are in one of the following nonimmigrant categories:

1. An H-1, temporary worker, or H-4, spouse, or child of an H-1; or

2. An L-1, intracompany transferee, or L-2, spouse or child of an L-1; or

3. A K-3, spouse, or K-4, child of a U.S. citizen; or

4. A V-2, spouse, or V-3, child of a lawful permanent resident; and

B. A Form I-485, Application to Register Permanent Residence or Adjust Status, was filed on your behalf and is pending with USCIS.

However, upon returning to the United States, you must present your valid H, L, K, or V nonimmigrant visa and continue to remain eligible for that status.

http://www.uscis.gov/files/form/I-131instr.pdf (F-Visa is not listed there)

[jfowes 0]

Thanks for the response, I found this same information while googling tonight and can't believe we missed it the first time through. File to re-open and plead being given wrong information and failing to do thorough enough research? If the person I spoke to on the phone had told me it was necessary, there is no reason we would have skipped it. My only concern is trying to re-open and then losing that also.

When we went to the interview, the officer who met with us knew that she had been out of the country, was going to leave again, and that she was on an F-1. I am in a state of shock and frustration.

File the motion to re-open, I suspect the fee is less than $1010+$355 (I-485+I-130) adjustment of status.

But yes, the only visa type that can continue to use the visa for travel is K-3 Spousal visa.

I-131:

NOTE: If you are in the United States and wish to travel abroad, you do not need to apply for advance parole if both conditions described below in A and B are met:

A. You are in one of the following nonimmigrant categories:

1. An H-1, temporary worker, or H-4, spouse, or child of an H-1; or

2. An L-1, intracompany transferee, or L-2, spouse or child of an L-1; or

3. A K-3, spouse, or K-4, child of a U.S. citizen; or

4. A V-2, spouse, or V-3, child of a lawful permanent resident; and

B. A Form I-485, Application to Register Permanent Residence or Adjust Status, was filed on your behalf and is pending with USCIS.

However, upon returning to the United States, you must present your valid H, L, K, or V nonimmigrant visa and continue to remain eligible for that status.

http://www.uscis.gov/files/form/I-131instr.pdf (F-Visa is not listed there)

[YuAndDan 153]

This is a good use of an immigrations attorney, more than likely you can get the case re-opened.

If not, then you probably will be looking at a full immigrant visa process for CR-1 or IR-1 visa and interview at the US consulate in foreign country.

[vicmo 1]

File the motion to re-open, I suspect the fee is less than $1010+$355 (I-485+I-130) adjustment of status.

But yes, the only visa type that can continue to use the visa for travel is K-3 Spousal visa.

That is partially correct. H1-B visa holders who apply for AOS (regardless if it is family-based or work-based) can also travel without advanced parole.

[diadromous mermaid 36]

Yes, I believe that is correct, so long as the H-1B has not used an EAD.

File the motion to re-open, I suspect the fee is less than $1010+$355 (I-485+I-130) adjustment of status.

But yes, the only visa type that can continue to use the visa for travel is K-3 Spousal visa.

That is partially correct. H1-B visa holders who apply for AOS (regardless if it is family-based or work-based) can also travel without advanced parole.

[vicmo 1]

Yes, I believe that is correct, so long as the H-1B has not used an EAD.

File the motion to re-open, I suspect the fee is less than $1010+$355 (I-485+I-130) adjustment of status.

But yes, the only visa type that can continue to use the visa for travel is K-3 Spousal visa.

That is partially correct. H1-B visa holders who apply for AOS (regardless if it is family-based or work-based) can also travel without advanced parole.

Yes that is correct as well. When you use an EAD you lose your H1-b status and it changes to a 'pending AOS' status.

Note: You have to actually use the EAD. If you just apply for an EAD you are still in H1-B status

Edited December 6, 2008 by vicmo

[YuAndDan 153]

That is partially correct. H1-B visa holders who apply for AOS (regardless if it is family-based or work-based) can also travel without advanced parole.

That is true, H-1 can travel per what I posted above, the OP is F-1 NOT H-1B, F-1 adjusting status MUST have AP for foreign travel, we are not talking about H-1 visas.

[vicmo 1]

That is partially correct. H1-B visa holders who apply for AOS (regardless if it is family-based or work-based) can also travel without advanced parole.

That is true, H-1 can travel per what I posted above, the OP is F-1 NOT H-1B, F-1 adjusting status MUST have AP for foreign travel, we are not talking about H-1 visas.

Yes, I'm aware that the OP is not an H-1B, I was just trying to clarify that not only K-3 visas can travel without AP (We were not talking about K-3 visas either).

The only visa type that can continue to use the visa for travel is K-3 Spousal visa.

If you state that only K-3 can travel without AP then you would mislead a lot of people who are adjusting from work visas. This is the ' Adjustment of Status from Work, Student, & Tourist Visas' forum after all...

Edited December 6, 2008 by vicmo