I485 Approved/ Got GC, Lawyer suggested me to re-file 485?

[rajkumari]

I was on F1 visa and applied for my GC / I485 thru my spouse few years back. Unfortunately while coming back from India 3 years back, I used my stamped F1 visa instead of AP. My lawyer told me that due to this, I have abondoned my AOS and he has to withdraw my 485 and refile it when it will be current. Few days back spouse became current and attorney was preparing to apply for 485 again but in USCIS the status of my application was still shown pending not withdrawn. To our surprise, we saw 2 GC in the mail and the online status was shown approved. But the attorney is saying that we should re-file the 485 since USCIS did not withdraw my application and approved it. They says that I might have issues if my absence is detected when I will apply for citizenship later. Please suggest. I am so puzzled and tensed.

[Jackolantern]

If USCIS doesn't initiate rescission of your GC for 5 years, they forever will be unable to rescind it for this reason, because it was their mistake and the relevant information (you entering with F1) was available to them at the time of adjudication. Just make sure to wait 5 full years to apply for citizenship (don't use the 90-day headstart) so you will be past the 5-year statute of limitations for rescinding an erroneous GC.

If you say and do nothing, it's unlikely that anybody at USCIS will know or care about this. To refile the I-485, you would have to surrender your GC first. Doing a surrender and refile would be much more risky and complicated than just keeping the GC and doing nothing about it.

[rajkumari]

Thanks Jackolantern for the quick reply. May I ask what is the risk involved if we choose to apply for it again? I am literally crying but don’t want to have sword lingering on my head all 5 years in case they find it..

[Jackolantern]

First of all, when you officially surrender your GC status you have to be outside the US, or leave the US immediately after surrendering it. Then your spouse would have to file follow-to-join, and you'll wait outside the US for months for the consular interview (but you can get an interview only if your priority date is current). The problem is that because you surrendered the GC, I don't know if they'll let you get another derivative GC from the same I-140. If they won't, it means if you surrender the GC you would have to wait years to immigrate via a fresh marriage-based petition filed by your husband.

In the unlikely event that they make an issue of this and take away your GC, you can return using follow-to-join via a consulate. And because of your ability to reimmigrate in a few months, even if USCIS discovered their error they almost surely won't waste their time trying to rescind your GC. They want to focus their efforts on people who will be banned from the US for years (or permanently) when deported, like criminals or people with more serious immigration violations.

So stop worrying. They're probably not going to discover this, and if they discover it they're probably not going to do anything, and if they do something you can return to the US in a few months.

[rajkumari]

Well..I am on H1 right now..do you think in that case also I will haev to go leave USA?

[Jackolantern]

Your H1B got cancelled when they approved your GC. So if you surrender the GC you'll have no status and will need to leave the US.

However, if they take the initiative to rescind your GC, you might be able to reinstate the H1B if you're working for the same employer. Because when they rescind the GC due to their error, the general aim is to reverse the effect of the GC where possible, including giving back your pre-GC status (although you might have to take steps to claim back your status since they won't necessarily do it automatically). They wouldn't give you back your pending I-485 if they're rescinding the GC due to abandonment of your I-485, but you'd have a case to get back your H1B. And if you get back your H1B, you could immediately refile the I-485 (assuming priority date is current).

So it's still to your advantage to just do nothing, and then deal with the issue if only they came after you. If you surrender the GC you'll be in a worse position than if they take it away.

I've heard and read of people having their I-485 denied after entering or leaving without AP, but never about an approved GC taken away after the fact because of that reason. Maybe it has happened, but it must be extremely rare, probably more rare than being struck by lightning. So stop worrying!

[ginnu]

I was on F1 visa and applied for my GC / I485 thru my spouse few years back. Unfortunately while coming back from India 3 years back, I used my stamped F1 visa instead of AP. My lawyer told me that due to this, I have abondoned my AOS and he has to withdraw my 485 and refile it when it will be current. Few days back spouse became current and attorney was preparing to apply for 485 again but in USCIS the status of my application was still shown pending not withdrawn. To our surprise, we saw 2 GC in the mail and the online status was shown approved. But the attorney is saying that we should re-file the 485 since USCIS did not withdraw my application and approved it. They says that I might have issues if my absence is detected when I will apply for citizenship later. Please suggest. I am so puzzled and tensed.

1. Do nothing
2 you are not on H1 as you got GC approved
3. apply for US citizenship AFTER 5 years from the date GC was approved.