Abandoning AOS i-485 based . PLease advice.

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warhound

Registered Users (C)
Hi,

I have a question with which im hoping someone would be able to help.

My family has a successful business overseas for which I am to eventually take over when the time is right. I had been sent by my family to USA for studies (F-1) and knowing very well who I was to get married to we decided to complete the formalities here itself so I may visit back and forth with wife to see family and not have to wait for visas each time. It didnt seem like a big deal back then. The problem is that the application was filed over a year and half ago and at that stage we had no idea it would take this long and I would have returned instead of overstaying while waiting for my status to adjust. In other words I screwed myself from being able to travel back and forth freely on non-immigrant visa.

I was told that the USCIS needs 6 additional months (4 from now) to make a decision as they are reviewing my case. Our patience was running really thin as I have extreme pressure to return and take over my family's business. We were making a decision to just return and abandon the application and the associated stress since we do not plan to live here anyways. The problem is that we got a email from our lawyer that a Stokes is scheduled for us in the coming few weeks.

Now whats screwing with our heads is, should we decide to not attend the interview and ask for extension and meanwhile leave would we (me in this case) be slapped with a section 240© lifetime ban ?! I just came across it on google and it freaked us out. What if they send us a notice of voluntary departure and we leave ?! We have absolutely no desire to unneccesarily harass ourselves with stokes when as I said we dont plan to stay here. I just don't want to get perma banned should i wish to visit 10-15 years later to with kids to show them where we grew up or disneyland etc.

Thanks
 
For this kind of specific information I would advise you talk to a competent immigration attorney. You seem to already have an attorney so I think they are in the best position to answer this question, considering they will have knowledge about the specifics of your case.

Good luck!
 
It's not clear who has what status and who is filing for who.

What is your wife's status? F-1? F-2? USC? LPR? Who petitioned for your green card? Your wife, or another relative? Which relative, a USC parent?

Did you fall out of status in the US? Or did you simply let the F-1 lapse by spending too much time outside the US? Have you already filed for AOS, or are you waiting for the priority date movement so you can file AOS in the future?

Are you inside or outside the US now.
 
Im sorry for not giving the specifics of the case.

My wife is a USC

I was on a F-1 ( in US) and upon graduation immediately applied for AOS. unfortunately our incompetent attorney back then did not file it properly and we had moved out of state which put me outside the 180 period and made me a overstay. All this time back then we had assumed USCIS was taking its time on processing the paper work.

From what im being told, USCIS WILL send a notice of intent to start deportation proceedings and people have 30 days to respond to it. Meanwhile one may leave and send documentation to USCIS that they are no longer present in the country. This should prevent the 240a/b/c ban from occuring and immigrants may have a chance to revisit after 10 year ban. Is this correct ?
 
What did the attorney do wrong with the I-485 filing? Why can't you make the necessary corrections now? Did they deny the I-485, and now you're appealing? If they denied it, when was the denial and what was the reason?
 
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The application sat in his office as his secretary had quit/left. The new one didn't seem to do a good job of checking the logs of current clients back then. Estimated time to hear from USCIS we presumed was about 6 months (till the interview date came ). We weren't on the top of things back then and I did not realise the department sent i-797c notices upon recieving applications. I thoguth the attorney was taking care of everything.

long story short, due the attorney error, which cant be fixed it put me outside the 180 day period.

Then when USCIS finally got the application we were outside the 180 period and i was considered an overstay.

Can you confirm that USCIS sends a notice of intent to start deportation and gives 30 days to respond. And if we leave within those 30 days we face a 10 year ban and not a perma ban ?

Thanks
 
So the I-485 was eventually filed properly, and it has not been denied?

Even with an overstay, you'd be eligible for AOS since you entered legally with a visa and are married to a US citizen. Remaining in the US would allow you to complete the AOS process and get a green card. So I take it your problem is just the upcoming consequences of leaving the US, particularly triggering the 3-year or 10-year ban due to the overstay? How long was it between losing your F-1 status and USCIS receiving the AOS application?
 
Im sorry if I havnt been clear so ill make another attempt to state my case.

I came to the US on a student visa to complete my MBA as thats the fashionable thing to do for families (back home) with young kids who will eventually take over their families businesses. I also at that stage knew who I would end up marrying and coincidentally she was a US citizen. After my graduation, there was a longing to stay in this Country or at least visit it once or twice a year so we thought heck why not get married here get a GC and move back and forth with ease having residences in both nations.

What I didn't know or care at that stage was the 180 day period in which AOS has to be received and Notice of action issued or you become out of status. we assumed that the forms were sent duly and that all we were waiting was for interview date to come in mail. apparently our application was not sent on time and that majorly screwed me up as stated above. Coupled that with we moved states a few times and one office wouldnt have adjudication on people living in different states and would reset the whole process it took a LOOONG time to get where we are. wha tshould have been 6 months is now 2 and a half years + process and counting. ( we had a interview at NY office few months ago, and since we moved so many times all over without proper detailed documentation to show at one place which can show bonafide marriage I thin we got recommended to stokes)

my family's patience is running wafer thin and they want us to return and me and my USC wife were making this step to move back to our native country as her immediate siblings and parents are there as well. we were exercising this move when suddenly we recieve a call from our lawyers that a stokes is scheduled for us.

Now when we have no intention of staying here and the 10 year ban doesn't seem to intimidate us we see no reason in unnecesarily harrasing ourselves with stokes unless absoultely needed to. My question is should we be firm on relocating to native country and not attend the stokes would that invite a perma ban on me as per the section 240 inadmissibility of alien ruling ?

I was given advice that the 240 only comes in play when you are in removal proceedings. Im told that the department WILL send us a notice to notify an alien that they intend to start removal proceedings and that we have 30 days to respond after that. Should we leave within those 30 days we can escape the section 240 perma ban. Is this correct ?

I have no fear of temprorary bans, but some day when i have kids, id like to bring my kids and show them where my wife and her family grew up etc.

Thanks again for all your help.
 
You still haven't answered a very important question -- how much time passed between when you quit school and when your AOS was filed? Apparently it was more than 180 days ... how much more? That will affect whether you might face any bans upon leaving the US and how long the ban will be.

Also, the ban might not be as bad as you think, due to special rules for F-1 students who have D/S on their I-94. But please answer my question so we can start to decipher the rest of the problem.
 
Dear jack,

it was approximately 1 year 2 months after graduation that the AOS was finally received by them.

- Thanks
 
You get a 60-day grace period after completing your last semester, so you would have been out of status for about 1 year, not 1 year 2 months.

In addition, F-1 students with D/S on their I-94 who fall out of status do not automatically and immediately become "unlawfully present" for the purpose of counting towards the 3-year or 10-year ban. The unlawful presence would start counting only when USCIS or an immigration judge made an official determination of it. If/when that happened, they would notify you about it, although you might not have received the notification due to moving around so much. However, it's almost certain that they didn't make such a determination immediately after your 60-day grace period, so if you have unlawful presence it would be under a year, which would give you a 3-year ban starting when you leave the US, not a 10-year ban.

In order to maximize your chances of returning to the US one day, you should both attend the interview. Either try to pass it and get the green card, or explain to them that you are still happily married but you are both leaving the US for good by XX/XX/2011 and you want to withdraw the AOS application. Don't just skip the interview and leave them thinking it was a sham marriage.

If you complete the interview and get the green card, there would be no ban when you leave the US. Then you can officially surrender the GC with form I-407 at a US consulate in your country, and apply for a tourist visa at the same time.
 
warhound said:
I just don't want to get perma banned should i wish to visit 10-15 years later to with kids to show them where we grew up or disneyland etc.
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If you get a permanent ban because they think you had a fraud marriage, you should be able to overcome that if you have kids and are still together 10-15 years from now. And even if you can't, your kids will be US citizens if your USC wife has spent the required number of years in the US and is able to prove it (5 years, with at least 2 years after her 14th birthday). So even if you can't visit, your wife and kids would be able to visit. Just make sure to visit the US consulate to apply for a Consular Report of Birth abroad for the kids within a few weeks after their births.

Before leaving the US she should gather as much evidence as she can about her years living in the US -- high school and college records, employment, etc. Consulates can be very nitpicking about what evidence they'll accept; sometimes you have to present 8 or 10 years worth of evidence just to get them to accept 5. And they often don't count employment years, if the type of job could have been done outside the US (e.g. if she's an accountant, she could have been doing the job from anywhere in the world even if paid by a US company, but if she's a bus driver for a school district she obviously would have to be physically in the US to do her job). And for school years they only count 8 or 9 months per year because you could have been outside the US in the summer break.
 
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