Apply for Advance Parole and try to get it expedited. But why didn't she already apply for it long ago?
Originally Posted by sdnaik
Yes, if they won't expedite the AP, you can file I-824 to switch to consular processing.
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?)
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.
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.
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.
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 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.
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?
EB3 ROW I-485 Approved: July 2007
USC: July 2013
I am a layman, not a lawyer. What I write here is not official or professional legal advice. In addition, my answers on this forum are specific to the scenarios discussed in each thread and should not be generalized to other situations.