Abandonment of Green Card Application

Neo275

Neo275

New Member
Hi guys,

My USC wife and I got married in 2012, after which she moved back to the US to give birth to our daughter in 2015. I entered the US on my B1/B2 visa around April 2015 with the intention of returning back home after a few months together, as I was between jobs at the time. We decided to apply for change of status to Green Card, and applied around July 2015. I received AP and EAD around September, but was suddenly admitted to a rehab centre involuntarily after coming under an episode of a mental health issue. The episode tore my wife and I apart, and I returned home in October 2015, 8 days after my I-94 expiration date. It's safe to assume that the change of status was abandoned and I haven't returned to the US since. I want to go back this month to visit my daughter for a few weeks, but I'm worried about whether my original B1/B2 will still be valid, or whether I could face issues at immigration. My wife and I are not divorced but still separated, and I have no intention of immigrating to the US again. Could you please give me any feedback on issues I may face at immigration and how to prepare?

Thanks!
 
When you stay past the date on your I-94, that triggers the provisions in INA 222(g) which automatically voids the visa you entered on, and makes you only able to apply for US visas in your country of nationality from then on. So you must apply for a new visa, and you must do it in your country of nationality.
 
The change of status was deemed abandoned the moment you left the US in October 2015. B2 visa is void too.

You have to apply for a fresh visa.
 
Neo275 said:
Is this still the case even though I applied for a change of status?
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You applied for Adjustment of Status, not Change of Status. Change of Status specifically refers to changing from one nonimmigrant status to another. The process of getting permanent residency from inside the US is called Adjustment of Status. If you left during a timely-filed Change of Status or Extension of Status application, that does prevent INA 222(g) from applying. But a pending Adjustment of Status application does not give such a benefit.
 
Pending changes and adjustments of status allow you to remain in authorized stay, but if abandoned or denied then the overstay determination goes back to the original i94. This is to prevent frivolous applications being made for the purposes of extending a stay period without an actual visa extension.
 
SusieQQQ said:
Pending changes and adjustments of status allow you to remain in authorized stay, but if abandoned or denied then the overstay determination goes back to the original i94. This is to prevent frivolous applications being made for the purposes of extending a stay period without an actual visa extension.
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Not sure what you mean by "overstay determination", but one does not accrue "unlawful presence" while a timely-filed, non-frivolous COS, EOS, or AOS is pending, even if it is ultimately abandoned or denied. In the case of denial, "unlawful presence" only starts accruing on the date of denial.

For INA 222(g), it also considers one to be in a period of authorized stay while a timely-filed, non-frivolous COS or EOS is pending, so if you abandon it by leaving while it is pending, it does not trigger the voiding of the visa. (In the case of denial, by the time you receive notice of the denial, it is already past the denial, so you are already in a period of unauthorized stay, which voids your visa.) However, there is no similar provision that considers you to be in a period of authorized stay while AOS is pending for INA 222(g).
 
This is just COS not AOS but to contrast to some of the above statements, and to highlight the subtle difference between overstay and unlawful status -

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Your lawful nonimmigrant status ends, and you are out of status, when your admission stamp date or your Form I-94 expires, even if you have timely applied to extend the period of your nonimmigrant status. DHS may bring a removal proceeding against you, even if you have an extension application pending.
As a matter of discretion, however, DHS may defer bringing a removal proceeding against you until after USCIS decides your application for an extension of your nonimmigrant status. Also, while you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your extension application is pending.
Although you are out of status, you are permitted to continue your previously authorized employment for a maximum period of 240 days while your extension application is pending if USCIS receives your application before your Form I-94 expires, and you have not violated the terms of your nonimmigrant status. You must stop working, immediately, when the first of the following events occurs:
• 240 days elapse from the date your nonimmigrant status expires; or
• USCIS has made a final decision denying your extension application.
If your application is approved, the approval will relate back to the expiration date shown on your admission stamp or the date your Form I-94 expired, and your status during the pendency of your application will then be considered to have been lawful.
If your application is denied, you must cease employment immediately and you must depart the United States immediately. In addition, any nonimmigrant visa in your passport granted in connection with your classification becomes void. Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).


If we deny your change of status application, you will be considered to have been “out of status” for the entire period following the expiration of your original nonimmigrant status and will be required to depart from the U.S. immediately upon notification of such denial of status.

https://www.uscis.gov/sites/default...ice Reference Guide/Nonimmigrant_Services.pdf
 
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