UN, others please shed some light

[needgchelp]

UN and others,

My USC sister has applied for I-130, I-485 application for my mom (relative based application). Mom came to US on visitor visa in July-05 and sister applied for AOS in Sept-05. Six months stay on visitor visa was over somewhere in Jan-06 but mom had received an EAD(pending AOS) in oct-05 so she is still in US legally.

Now we want to withdraw pending I-130, I-485 applications simply because mom doesn't want to live permenantly in US. Mom has 10 years multiple entry visitor visa.

We don't want to contine her file after she leaves US, in that case USCIS will abandon her case, which we don't want. Rather we want to withdraw her application proactively. How do we go for it? Any formal form to fill up to withdraw I-130, I-485?? how long does it take? Can mother leave country immediately after sending letter to USCIS? Or she has to wait for acknowledgement from USCIS?

Another concern is : We wish to contine her 10 years visitor visa. By doing above, would her 10 years visa be jeopardized ? Can she keep visiting US once in a while(every few years)?

Sorry for the long post but I couldn't find answers anywhere and hoping you could help me with your expert knowledge. any links?

Thanks,

 

[curiousGeorge]

If (a) her B2 has expired, or if (b) she has used her EAD to work, or if (c) she has used her Advance Parole to re-enter the US, then her B2 status is now void and she is currently in "I-485 pending status". If she withdraws her I-485 at this point, she would be out of status, and could not re-enter using the same B2 visa. She should leave the US before withdrawing the I-485 to avoid illegal presence greater than 180 days.

If neither situation (a) or (b) or (c) above have occurred, then (d) she should be able to safely withdraw the I-485, and her B2 would still be valid for the period of time that she remains in the US, or until the B2 itself expires (whichever happens first).

But...

If she has done (d) , then after she leaves the US, and tries to re-enter using the B2 visa, the officer at the POE may not let her enter in B2 status, since B2 does not allow for dual intent, and she has applied for I-485, which demonstrates clear immingrant intent. The officer may not consider that she has withdrawn it, or he may not see that fact in his computer. The only way to safely get around that is that she would need to show the officer at the POE proof that her I-485 was infact successfully withdrawn, so I suggest that she carry a receipt or confirmation of the I-485 withdrawal whenever re-entering the US in B2 status.

The same situation may occur when she tries to re-apply for any subsequent B2 visas, or any visas that do not allow for dual intent such as F1, J1, TN, etc. for that matter. She may have to prove that the I-485 was officially withdrawn in order to gain B2 status in the future, otherwise the officer will assume that she may have immigrant intent and deny the B2, since she has demonstrated immigrant intent in the past.

 

[needgchelp]

If (a) her B2 has expired,

B2 is valid for 10 years as I mentioned earlier however her I-94 expired in Jan-06 as they don't give I-94 for more than 6 months. did you mean to ask whether her I-94 expired?

or if (b) she has used her EAD to work, or if (c) she has used her Advance Parole to re-enter the US, then her B2 status is now void and she is currently in "I-485 pending status".

None of the above happened. she never used EAD to work neither she has AP.

If she withdraws her I-485 at this point, she would be out of status, and could not re-enter using the same B2 visa. She should leave the US before withdrawing the I-485 to avoid illegal presence greater than 180 days.

Again she never used EAD or AP. so that leaves concern about her stay after I-94 expired in Jan-06 (which was issued on her B2 visa). However she hasn't acquired any illegal presence being in AOS status.

If neither situation (a) or (b) or (c) above have occurred, then (d) she should be able to safely withdraw the I-485, and her B2 would still be valid for the period of time that she remains in the US, or until the B2 itself expires (whichever happens first).

What you meant by B2 expired? As I mentioned before, she has B2 for 10 years multiple visa. however at a time at POE they issue I-94 only for 6 months. 6 months were over in Jan-06. her B2 is valid for 10 years.

The only way to safely get around that is that she would need to show the officer at the POE proof that her I-485 was infact successfully withdrawn, so I suggest that she carry a receipt or confirmation of the I-485 withdrawal whenever re-entering the US in B2 status.

how to withdraw application? which form to fill up? I would appreciate any pointers.

The same situation may occur when she tries to re-apply for any subsequent B2 visas, or any visas that do not allow for dual intent such as F1, J1, TN, etc. for that matter. She may have to prove that the I-485 was officially withdrawn in order to gain B2 status in the future, otherwise the officer will assume that she may have immigrant intent and deny the B2, since she has demonstrated immigrant intent in the past.

She has 10 years B2 so no plan for re-applying.

 

[compass]

She has 10 years B2 so no plan for re-applying.

Just my opinion!
I think, after she submitted I-485, B-2 became NON-valid, including BOTH I-94 and 10-year visa stamp, since B-2 is not a dual intent visa.
Maybe she can return on B-2, after withdrawing I-485, but in my opinion, she must apply for B-2 AGAIN and explain all that about filing an immigrant petition and withdrawing it.... may cause problems....
And now she is in AOS status, so after withdrawing she will be out of status, so better withdraw after returning to home country...or shortly before.

 

[cherr1980]

Make an INFOPASS and check with your district office what is the best way to approach the withdrawal. I think all of you should write a letter explaining the situation and at the same time your mother would have to write a letter why she doesn't want to continue with her AOS application.

Her B2 visa is not longer valid since she is/was in adjustment of status and is not that because one thing get cancel (her AOS) the other stay like nothing happen. That is not the way that B1/B2 visas works, doesn't matter if she had a 10 year multi entry visa. See, a person in adjustment of status needs to have an approved Advance Parole to get out of the country (unless it was in another type of visa like H1B-which is a dual intent visa). B2 visas are not dual intent, so without an advance parole she wouldn't be able to return to the US even having (in the past) a 10 year visa, that visa is not valid right now.

It is important that when she leaves the country she get enough documentation from USCIS that states that she is leaving her application "without prejudice" so she can apply later on for a visitor visa and she will probably need all that documentation again, without that she will be bar to enter the country because the Department of state (the ones who issued visas abroad) are not too well connected of what approved or denied USCIS within the US.

Good luck,

 

[curiousGeorge]

What you meant by B2 expired? As I mentioned before, she has B2 for 10 years multiple visa. however at a time at POE they issue I-94 only for 6 months. 6 months were over in Jan-06. her B2 is valid for 10 years.

Since the B2 status shown on her I-94 has expired, she is now in "I-485 pending status" and thus this in effect has voided her 10-year B2 visa since a B2 does not allow for dual intent. She would need to apply for another 10-year B2 to return in the future if she were to withdraw her I-485. But as I mentioned earlier, when she reapplies for the B2 next time, she might have to show proof that the I-485 was withdrawn.

I don't know which forms to use to withdraw the I-485. I specualte that its a letter that you need to write. Someone else on the board might help, or you may need the help of a lawyer to withdraw it properly. If she plans to return one day in B2 status, I would recommend you employ a lawyer, as the legalese english verbiage that needs to be used may be very specific to the situation to ensure a proper withdrawal.

 

[curiousGeorge]

Just my opinion!
I think, after she submitted I-485, B-2 became NON-valid, including BOTH I-94 and 10-year visa stamp, since B-2 is not a dual intent visa.

This is definitely false. A status that does not allow for dual intent is not voided simply by filing a I-485. It is voided if the person's I-94 has expired while an I-485 is pending, or if they used an EAD to work, or if they left the US and reentered using an Advance Parole. If the person does not use an Advance Parole to re-enter, but rather re-enter's using a visa that does not allow for dual intent, then the I-485 is considered abandoned, (which is looked upon a little differently than a proactive withdrawal)

 

[curiousGeorge]

without that she will be bar to enter the country because the Department of state (the ones who issued visas abroad) are not too well connected of what approved or denied USCIS within the US.

That was well said. That is precisely the risk, and that is precisely why you need to be prudent, and make sure you get the confirmation of withdrawal in writing.