Withdrawal of Family Based Green Card Application

[sdnaik]

We made the I-131 application for my mother last May when she was in the US on her US travel visa. Since the approval of the first step came before November 2009 (which is when the 6-month I-94 expired), we were told she can continue to stay in the US till she gets the green card (I-485) approval notice.

Since November, we have been waiting for the I-485 adjustment of status process approval. However, there have been some delays with INS as they are having some problems with her finger-prints. (Strangely, seems her finger-prints are not clear!) We have not heard back from INS after the 2nd visit to the local INS office for finger-printing.

In the meantime, my mother really needs to be back in India for family reasons. She simply cannot stay on in the US any longer. We called INS to ask about advanced parole for travel purposes and were told it may take 3-4 months. We cannot wait that long.

So, we are wondering whether we should just withdraw the current green card application. (Is there any other option? Can she change it at this late a stage to consular processing in India?)

However, I am worried about the following, in case we decide to withdraw:

1) She continued her stay beyond November (6 months) based on the visa A # she got after I-130 (first stage) approval. If we withdraw the application, will the November 2009 to current time still be considered as being in the US legally? I do not want her to be considered by INS as having over-stayed and being in the US illegally.

2) Her travel visa to the US expires in 2011. If she goes for a new travellers visa in 2011 to visit us next year or in 2012, will she be denied the visa because she has in the past tried to apply to be a permanent resident (even though we withdrew the application.)?

3) And perhaps not that critical but important nonetheless because though she cannot live in the US currently and has to return to India, maybe 3-5 years from now, she may want to be a permanent resident again. How does the withdrawal affect future applications for Family based green card for her?

Thank you for your advice. Much appreciated.

Sanjeev

[VisaNutz]

Depending on the nature of visit, your mother could request expedited AP.
Also, GC is not a border crossing card. Until your mother is ready to settle in USA permanently, she should not have applied for a GC.

A decision has already been made on the I-130, so you can't withdraw it. However, your mother can send a letter to USCIS requesting withdrawal of her 485.

1. Leave USA before sending the request.
2. Technically, the current B-2 visa she has was void when she filed 485. And yes, it could be a problem getting future because of her intent to permanently stay in the US.
3. No effect.

Have you thought about doing the process in India? Here's what I would suggest: Apply for AP as soon as possible and once they send the I-797, make an expedite request. You might get it in a week. If that doesn't work, have her send a letter to USCIS to withdraw the 485 petition, and at the same time you (assuming you filed the I-130) send a letter to USCIS saying that your mother left/leaving USA and would like to get an Immigrant Visa through "Consular Processing" in India. They will then send her petition to NVC and you start from there.

[LucyMO]

no need to withdraw I-485. If she leaves the States without getting an advance parole, she automatically forfeits her I-485 petition. I-130 is, of course, still valid.

[VisaNutz]

no need to withdraw I-485. If she leaves the States without getting an advance parole, she automatically forfeits her I-485 petition. I-130 is, of course, still valid.

That's TECHNICALLY.. There is no system in place that automatically notifies USCIS when an AOS applicant leaves USA. In face, if you remember SpanishGirl in this forum - she left USA without AP while AOS pending, not only she came back into the US with no problem at all, she is enjoying her GC right now.

OP, if it is inevitable, I would highly recommend letting USCIS know after your mother is leaves US.

[Jackolantern]

In the meantime, my mother really needs to be back in India for family reasons. She simply cannot stay on in the US any longer. We called INS to ask about advanced parole for travel purposes and were told it may take 3-4 months. We cannot wait that long.

Apply for Advance Parole and try to get it expedited. But why didn't she already apply for it long ago?

So, we are wondering whether we should just withdraw the current green card application. (Is there any other option? Can she change it at this late a stage to consular processing in India?)

Yes, if they won't expedite the AP, you can file I-824 to switch to consular processing.

However, I am worried about the following, in case we decide to withdraw:

1) She continued her stay beyond November (6 months) based on the visa A # she got after I-130 (first stage) approval. If we withdraw the application, will the November 2009 to current time still be considered as being in the US legally? I do not want her to be considered by INS as having over-stayed and being in the US illegally.

Withdrawing while within the US, without having valid nonimmigrant status, would means she is seen as an overstay if she doesn't leave on the same day of the withdrawal.

2) Her travel visa to the US expires in 2011. If she goes for a new travellers visa in 2011 to visit us next year or in 2012, will she be denied the visa because she has in the past tried to apply to be a permanent resident (even though we withdrew the application.)?

If she directly withdraws, rather than having USCIS cancel it behind the scenes due to her departure, I think her chances of getting the visa are fairly good. But with tourist visas you can never predict what they will decide. After all, she is a parent of a USC, and such parents have a high rate of overstaying or filing for AOS. She may have to expend some effort to convince the interviewer that she will not file for AOS again if they grant the visa.

3) And perhaps not that critical but important nonetheless because though she cannot live in the US currently and has to return to India, maybe 3-5 years from now, she may want to be a permanent resident again. How does the withdrawal affect future applications for Family based green card for her?

If she cannot live in the US now she should withdraw rather than applying for Advance Parole or switching to consular processing. The withdrawal won't hurt her future GC application.

[Jackolantern]

That's TECHNICALLY.. There is no system in place that automatically notifies USCIS when an AOS applicant leaves USA. In face, if you remember SpanishGirl in this forum - she left USA without AP while AOS pending, not only she came back into the US with no problem at all, she is enjoying her GC right now.

I remember that thread. The "no problem at all" is not true. She had a huge hassle at the POE, and was very close to being refused entry. Her trip was a very short one (I think less than a week), and the IO at the POE might not have let her in if the trip was several weeks or months. She was also Canadian, and no other country gets more favorable treatment by US Immigration than Canada. And she was accompanied by her born USC husband. With all those factors considered, her success without AP should not be extrapolated to anybody else.

However, your point that the I-485 is not automatically and immediately canceled upon departure without AP is correct.

[sdnaik]

Thank you, VisaNutz, Jackolantern, and LucyMO for your answers.

Apply for AP and try to expedite it may be an option too but I am not sure she can come back to US in 2-3 months. Her 93 year old father is not doing too well and she'd like to spend some time with him plus she needs to sell her house and take care of other business in India this year before she can return.

If I understand your replies right, best next step is
1. She leaves the country without applying for AP
2. After she leaves, we notify USCIS to withdraw the I-485 saying she HAD to go back to India and has left.
3. In 2011, she can try to get visa to come to US and worse case scenario cannot get a visa and stays in India. A few years from now (say 3-5 year period), when she is ready to move permanently to the US, we can apply for her Permanent Residency again and the current withdrawal will not have an effect on the process then.

If we do above, what does that mean about I-130 approval she already has? (For better or for worse, we did I-130 and I-495 AOS in 2 steps. So, she already has I-130 approval and a visa #. Does that visa # become defunct when she stops the I-495 process? Not clear to me that she can withdraw I-485 process like stated above and still file I-824 to ask USCIS to transfer file for Consular Processing in India. That may take 1-2 years, I believe..which may be ok since my mother thinks she needs to be in India till 2011 at least to be with her father and wind down other financial obligations there.)

Also, correct me if I am wrong but my understanding about her legal status in the US is that she did not over-stay illegaly because:
a) I-94 was valid for 6 months when she entered US in May 2009..i.e. till November 2009 she was definitely legal.
b) She got an approved I-130 (and got visa A #) in late Oct/early Nov, her stay from November 2009 to March 2010 should be valid even if she later (in March 2010) withdraws the Adjustment of Status step.

Thank you all again for adding some clarity to the process. Much appreciated.

[Jackolantern]

Also, correct me if I am wrong but my understanding about her legal status in the US is that she did not over-stay illegaly because:
a) I-94 was valid for 6 months when she entered US in May 2009..i.e. till November 2009 she was definitely legal.
b) She got an approved I-130 (and got visa A #) in late Oct/early Nov, her stay from November 2009 to March 2010 should be valid even if she later (in March 2010) withdraws the Adjustment of Status step.

When did she file the I-485? I-130 gives no legal status on its own. If she filed the I-485 after her 6 months of stay expired, that time between the expiration and I-485 filing would be an illegal overstay. The time while the I-485 was pending is legal though.

Any overstay, even if it's only a few days, can cause a big problem when applying for a tourist visa. But it won't affect her eligibility for an immigrant visa if the overstay was less than 180 days.

[sdnaik]

[QUOTE=Jackolantern;2153144]When did she file the I-485? I-130 gives no legal status on its own.

She filed for I-485 immediately after the I-130 approval came in late Oct i.e. a few weeks before the 6 months on I-94 had expired. So, there should be no illegal overstay in that case.

Time during I-485 is pending (November to March 2010) would be legal even if she leaves in March without taking AP and we, after her leaving, withdraw the application, right?

Thanks.

[Jackolantern]

She filed for I-485 immediately after the I-130 approval came in late Oct i.e. a few weeks before the 6 months on I-94 had expired. So, there should be no illegal overstay in that case.

Time during I-485 is pending (November to March 2010) would be legal even if she leaves in March without taking AP and we, after her leaving, withdraw the application, right?

Yes. By filing I-485 before the I-94 expired, and leaving before withdrawing it, her stay in the US remains legal the entire time.