I485 pending While Holding M1 visa

[eros98 0]

Hello everyone.

I'm a Student in The united states with a valid unexpired M1 visa.

My dad is an American Citizen, so he applied last year (while I was in the Usa) to get the permanent residence for me (i'm under 18).

After one year and a Half i'm still waiting for I485 to be approved.

I went out of united states 2 times , and i stayed outside 2 weeks . Do you guys think it matters that I went out of the state? Or Holding a M1 visa i may relax. let me know if you have any answers.

[Hypnos 6,576]

Do you have Advance Parole, obtained by filing an I-131? Or did you re-enter on your M-1?

[eros98 0]

Nope I just have an M1 with a valid I-20

[Hypnos 6,576]

Then unfortunately your AoS was considered abandoned when you departed the US without Advance Parole. Your I-485 will be denied.

[eros98 0]

So I will have to reapply right ?

[Hypnos 6,576]

If you still want to become a permanent resident, yes.

You should formally withdraw your existing I-485 by writing to whichever USCIS office it is currently processing at and stating you wish to withdraw the application.

You would then re-file, this time obtaining Advance Parole (and an EAD, if you wish) prior to departing the US if you wish to travel internationally before your application is approved.

[eros98 0]

How about if I don't make the withdraw ? Will I be able to file again?

And then ... Are you sure that they will deny i485?

[Hypnos 6,576]

If you fail to withdraw the existing I-485 and just file another, you run the risk of your two cases getting mixed up, and strange things happening, like an RFE meant for one case being issued for another, and maybe even your legitimate second application being improperly denied too. It's generally advisable for you to only have one I-485 in-process at any one time.

Your I-485 is not approveable, because you left the US without a valid AP. When USCIS figure this out they will probably just deny it automatically, but there's the risk that they don't notice and approve it. This sounds good, but is actually bad because you would then be the beneficiary of a green card by virtue of a USCIS error, and if (more likely: when) they notice at some point in the future, they can reverse their previous approval and revoke your green card at that point.

You have one clear path to cut through the mess, and that's to withdraw your existing I-485 and re-file. Consult with an experienced immigration attorney if you want confirmation of this.

Edited April 17, 2015 by Hypnos

[KayDeeCee 4,891]

M1 visa is not one of the exceptions for needing Advance Parole. You needed the AP in order to leave and re-enter without abandoning your adjustment application.

http://www.uscis.gov/sites/default/files/files/form/i-131instr.pdf

NOTE: Generally, if you are in the United States and have applied for adjustment of status to that of a lawful
permanent resident, your application will be deemed abandoned if you leave the United States without first obtaining
an Advance Parole Document. Your application for adjustment of status generally will not be deemed abandoned,
even if you do not apply for an Advance Parole Document before traveling abroad while an adjustment application is
pending, if you currently are in one of the following nonimmigrant classifications, and remain eligible for and would
be admissible in one of the following categories upon applying for admission at a port-of-entry:

a. An H-1 temporary worker, or H-4 spouse or child of an H-1;
b. An L-1 intracompany transferee, or L-2 spouse or child of an L-1;
c. A K-3 spouse, or K-4 child of a U.S. citizen; or
d. A V-1 spouse, or V-2/V-3 child of a lawful permanent resident.

~ Moved from AOS from Family Based Visas to AOS from Work, Student & Tourist Visas ~