DV 2020 AOS Only

Mom, talked to this attorney which i think was the best so far . he said I cant adjust status in US, no chance, but Consular Processing has a favorable option since I would not trigger 3 years bar. Any idea?
  • Bars to admissibility under INA § 212 apply, but not bars to adjustment of status under § 245.
    • INA § 212(a)(9)(B) – unlawful presence between 180 days and one year and voluntary departure – advance parole is not a “departure.” Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
Everest 2020 so what do you think about the student who has a valid visa and got selected for DV 2020? What are the further steps?
 

Sm1smom

Super Moderator
Mom, talked to this attorney which i think was the best so far . he said I cant adjust status in US, no chance, but Consular Processing has a favorable option since I would not trigger 3 years bar. Any idea?
  • Bars to admissibility under INA § 212 apply, but not bars to adjustment of status under § 245.
    • INA § 212(a)(9)(B) – unlawful presence between 180 days and one year and voluntary departure – advance parole is not a “departure.” Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
I’m not a lawyer. If this lawyer feels you will not trigger a three year bar following your 9 months out of status presence in the US, then I say good luck with that.
 
I’m not a lawyer. If this lawyer feels you will not trigger a three year bar following your 9 months out of status presence in the US, then I say good luck with that.
Even if triggers, hopefully they will not cancel my AP along with denying DV visa. So i am leaning towards doing CP instead of AOS where it is certain that I am truly ineligible for AOS w/o any chance of waiver.
 

SusieQQQ

Well-Known Member
Even if triggers, hopefully they will not cancel my AP along with denying DV visa. So i am leaning towards doing CP instead of AOS where it is certain that I am truly ineligible for AOS w/o any chance of waiver.
So take me through this. You have AP on the basis of TPS? You leave, try CP who say you can't get a visa because of the bar (which you just have to accept because of the doctrine of consular non-reviewability), you use your AP to board a flight and re-enter the US anyway (on the basis of the precedent you quoted) but you still can't AOS so... you just stay TPS? Seems like a lot of effort and risk as well as some $$$, to maintain the status quo?
 
So take me through this. You have AP on the basis of TPS? You leave, try CP who say you can't get a visa because of the bar (which you just have to accept because of the doctrine of consular non-reviewability), you use your AP to board a flight and re-enter the US anyway (on the basis of the precedent you quoted) but you still can't AOS so... you just stay TPS? Seems like a lot of effort and risk as well as some $$$, to maintain the status quo?
But chances are that i might be coming back with greencard, while chance of getting greencard via AOS in US is zero. Even if they gave me by mistake they could rescind during the citizenship based on the fact that i was ineligible to receive at first place. So what this lawyer is saying is you are still eligible for a green card through consular processing because you do not trigger 3 years bar since you never left voluntarily after the out of status period.
  • INA § 212(a)(6)(G) “Student Visa Abusers” – applies only to students at elementary and secondary schools.
  • INA § 212(a)(9)(B) – unlawful presence between 180 days and one year and voluntary departure – advance parole is not a “departure.” Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
So i am eligible to adjust status at consular under § 245.

Please advise . It is getting very complicated every day.
 
It’s really your decision as to which option you wish to go with. My recommendation is to maintain current status throughout he process if you wish to go the AOS route. I’m not sure what else made you decide to consider dropping out of school in order to go pursue CP, remember an approval is not guaranteed simply based on being selected. I also don’t know what stage of schooling you’re at, but giving it all up just like that for something you currently don’t have is not the route I would have taken.

Anyway, you can compare the pros and cons of both AOS and CP just in case you’re still trying to decide on which option works best for you - you’ll find this information on the AOS process spreadsheet which is linked to the first post on page one of this thread.
I already sent my ds 260, can I change it with AoS?
 

SusieQQQ

Well-Known Member
But chances are that i might be coming back with greencard, while chance of getting greencard via AOS in US is zero. Even if they gave me by mistake they could rescind during the citizenship based on the fact that i was ineligible to receive at first place. So what this lawyer is saying is you are still eligible for a green card through consular processing because you do not trigger 3 years bar since you never left voluntarily after the out of status period.
  • INA § 212(a)(6)(G) “Student Visa Abusers” – applies only to students at elementary and secondary schools.
  • INA § 212(a)(9)(B) – unlawful presence between 180 days and one year and voluntary departure – advance parole is not a “departure.” Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
So i am eligible to adjust status at consular under § 245.

Please advise . It is getting very complicated every day.
I can’t possibly “advise”, you have a lawyer for that. I was just trying to figure out what the likely course of events was. Are you taking a copy of the case along to the interview? What if they don’t look at it? What if they put you on administrative processing pending an advisory opinion, which could take a while? How long can you be out of the US for without jeopardizing your job? Just trying to think through possible outcomes.
 
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I can’t tell you what your best solution is, but I can tell you about the two options available to you:

1. Withdraw your asylum petition by returning home and processing CP with your husband.
I recommend you speak with an immigration attorney though to discuss the details of when you filed for asylum and find out if you’ll subsequently be considered an overstayer before proceeding with option 1.

2. Remain in the US until your husband completes his CP portion and enters the US as a LPR, then you file for AOS as his derivative.
Hi
I already discussed with my attorney and he told me that I don't have any consequences if I went to my husband; since my husband live in different country than the one I fill it in my asylum application;so what you think I have to request for advance parole and I join my husband in his interview?
Regarding option 2 you mentioned above;do you think I can get my Visa before September 2020 ?since the procedure in the US take long time
 
I can’t possibly “advise”, you have a lawyer for that. I was just trying to figure out what the likely course of events was. Are you taking a copy of the case along to the interview? What if they don’t look at it? What if they put you on administrative processing pending an advisory opinion, which could take a while? How long can you be out of the US for without jeopardizing your job? Just trying to think through possible outcomes.
If it is possible i dont mind losing the job plus i can use extended vacation plus FMLA etc. also with AP, i cant stay more than 90 days so there's that. I can take the copy and the case etc. if that is the valid case. If it is possible that they could grant me visa, i dont mind spending some money and the time. Hopefully it will be good vacation whether i get visa or not. But i still need to get second opinion. BTW i talked to 6 lawyers so far. 2 recommended CP, 1 recommended CP with waiver i601a (liar), 1 said gamble $2000 for AOS , 1 said zero chance for AOS but he is willing to research more for $2500 (sucker), 1 (AOS) is still researching , haven't heard
 

Sm1smom

Super Moderator
Hi
I already discussed with my attorney and he told me that I don't have any consequences if I went to my husband; since my husband live in different country than the one I fill it in my asylum application;so what you think I have to request for advance parole and I join my husband in his interview?
Regarding option 2 you mentioned above;do you think I can get my Visa before September 2020 ?since the procedure in the US take long time
1. If you’re withdrawing your asylum petition, you have no basis for filing AP. Where your husband is residing is irrelevant. By the way, I hope you mentioned him in your asylum petition.

2. I don’t know. I have no way of knowing if your husband might be stuck in AP which will impact how soon he can enter the US to enable you file AOS. I also have no way of knowing if you yourself could be stuck in AP and subsequently not have enough time to complete the process by COB on September 30th.
 
Yes, when I filled the form, my current address in the ds 260 was the address where I live now as student in the US. As I mention above, i sent my ds 260 already and I put the fact that I will have the interview in Naples, Italy. Then i changed mind, in order to proceed with AoS, what is the next step? Please! And sorry again
 
Yes, when I filled the form, my current address in the ds 260 was the address where I live now as student in the US. As I mention above, i sent my ds 260 already and I put the fact that I will have the interview in Naples, Italy. Then i changed mind, in order to proceed with AoS, what is the next step? Please! And sorry again
It seems to me that to change CP to AOS I have just send the form 485, right? Without even bother the ds 260?
 

Sm1smom

Super Moderator
Yes, when I filled the form, my current address in the ds 260 was the address where I live now as student in the US. As I mention above, i sent my ds 260 already and I put the fact that I will have the interview in Naples, Italy. Then i changed mind, in order to proceed with AoS, what is the next step? Please! And sorry again
I already answered - you need to contact KCC and inform them you wish to switch from CP to AOS.

Then go through the AOS process spreadsheet which is linked to the first post on page one of this thread.
 
1. If you’re withdrawing your asylum petition, you have no basis for filing AP. Where your husband is residing is irrelevant. By the way, I hope you mentioned him in your asylum petition.

2. I don’t know. I have no way of knowing if your husband might be stuck in AP which will impact how soon he can enter the US to enable you file AOS. I also have no way of knowing if you yourself could be stuck in AP and subsequently not have enough time to complete the process by COB on September 30th.
Sorry sir I didn't understand your first point ; actually my home country is Sudan (the country that I am worried to go back)and my husband working in UAE and I already mentioned it in my asylum application;the question is I can request advance parole and then join my husband in CP?
 

Sm1smom

Super Moderator
Sorry sir I didn't understand your first point ; actually my home country is Sudan (the country that I am worried to go back)and my husband working in UAE and I already mentioned it in my asylum application;the question is I can request advance parole and then join my husband in CP?
Yes you can leave the US and join your husband for CP. You can’t request for AP if you will be withdrawing your asylum petition before leaving. You should also ask your lawyer about this though.
 
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