Advised to file AOS by helpline - problems - can I use VWP to return?

[Jammy Bodger 0]

Hello All,

I've tried to search the forums for the best info and so far this seems to be the most relevant thread.

It would seem my problem is essentially similar to, but also differs from that of the OP.

I'm a UK citizen and my Fiancée is a USC, we got engaged back in March last year when I visited her on a VWP and started planning our big-day.

I returned to the UK and we applied for the fiancée visa which went through to the point where you are requested to do a medical at around November time.

I then managed to bargain with my employers to get a nice 5 week holiday to spend with her and her family in the US, again on VWP.

During this time we were looking at all the arrangements and checking out locations. We were so happy actually being able to physically check places out together that we got caught in the spirit of things and ended up getting married there and then on Dec 28th.

I still had to return to the UK to fulfil my contracted employment so we contacted the USCIS to ask them how we should proceed with the I-129F and in general. At this time they recommended that we concurrently file the I-130, 765 & AoS packet while I remained in the US which we then did along with the medical exam, which we did. It was apparently received by the Chicago Lockbox on the 13th of Jan.

I returned to the UK, as originally anticipated, on the 15th of Jan but now need to do the biometric "exam" on March 14th of March IN HOUSTON, TX (appropriately our 1yr engagement anniversary).

My Question is this: I know that I have enough days left on my ESTA but now that I am applying for AOS I don't know if I qualify to enter on VWP anymore and I don't want to do anything that jeopardizes the applications. Can anyone give me some advice?

[Myopia 93]

Hello All,

I've tried to search the forums for the best info and so far this seems to be the most relevant thread.

It would seem my problem is essentially similar to, but also differs from that of the OP.

I'm a UK citizen and my Fiancée is a USC, we got engaged back in March last year when I visited her on a VWP and started planning our big-day.

I returned to the UK and we applied for the fiancée visa which went through to the point where you are requested to do a medical at around November time.

I then managed to bargain with my employers to get a nice 5 week holiday to spend with her and her family in the US, again on VWP.

During this time we were looking at all the arrangements and checking out locations. We were so happy actually being able to physically check places out together that we got caught in the spirit of things and ended up getting married there and then on Dec 28th.

I still had to return to the UK to fulfil my contracted employment so we contacted the USCIS to ask them how we should proceed with the I-129F and in general. At this time they recommended that we concurrently file the I-130, 765 & AoS packet while I remained in the US which we then did along with the medical exam, which we did. It was apparently received by the Chicago Lockbox on the 13th of Jan.

I returned to the UK, as originally anticipated, on the 15th of Jan but now need to do the biometric "exam" on March 14th of March IN HOUSTON, TX (appropriately our 1yr engagement anniversary).

My Question is this: I know that I have enough days left on my ESTA but now that I am applying for AOS I don't know if I qualify to enter on VWP anymore and I don't want to do anything that jeopardizes the applications. Can anyone give me some advice?

You may do better creating a whole new thread so people dont get confused.

Can a moderator move an individual post??

Did the USCIS know that you were planning to leave the US whilst filing the packet?

I don't know if you are able to reenter the US for the biometrics on the Visa Waiver Program because the VWP is a tourist visa which you are not supposed to intend to immigrate from.

Did you file for Approved Parole?

Are you intending to come to the US for the biometrics alone and then go back to the UK?

[Harpa Timsah 13,258]

I'm sorry to be the one to break it to you, but you abandoned your AOS application when you left the US without approved travel permission. The I-130 is still in play and you can follow the CR-1 path leading to a spousal visa, and visit in the meantime. If you visit again and try to file the I-485 in-country, I suspect you will be denied. If you travelled back and attended the biometrics, eventually they will figure out you left and deny your I-485, even if it seems like things are on track for a while (getting biometric notice). Long story short, you are on the CR-1 path now. Best of luck to you.

[Jammy Bodger 0]

Did the USCIS know that you were planning to leave the US whilst filing the packet?

Before I filed the packet I spoke called the USCIS and made it clear to them that I would still have to return to England in the very near future and asked them what we should do, they specifically instructed us to file the whole I130+I1485+.. packet along with the Approved Parole, even though I would inevitably be out of the country before the AP was officialised.

Did you file for Approved Parole? Are you intending to come to the US for the biometrics alone and then go back to the UK?

Yes, we did file for AP. Sorry this was part of the "packet" they sent us but I couldn't remember the name of it when I wrote my post. In the reasons section and also as a cover letter to the whole packet I provided a letter to explain that the reason why I was applying for AoS in this way, despite the immediate need to leave the country, was that I had been instructed to do so by 2 separate USCIS officials when I rang the helpline.

My intention at this point would be to solely come to the US for the purpose of doing the biometric exams and then returning (after a week).

I'm sorry to be the one to break it to you, but you abandoned your AOS application when you left the US without approved travel permission. The I-130 is still in play and you can follow the CR-1 path leading to a spousal visa, and visit in the meantime. If you visit again and try to file the I-485 in-country, I suspect you will be denied. If you travelled back and attended the biometrics, eventually they will figure out you left and deny your I-485, even if it seems like things are on track for a while (getting biometric notice). Long story short, you are on the CR-1 path now. Best of luck to you.

In the end the path we took was the one that USCIS instructed us to follow having provided them with all the information about our situation. I was ready to go the file abroad route but they specifically instructed me to file the I-485 while I was there knowing that I was about to leave the country.

If it all turns out to be wrong and they deny me I'm sure there'll be plenty of debates to be had with them since I've only done what they instructed me to do.

So I left the country and didn't hear anything about the advanced parole after filling out the 130/485/765.. packet

I have always entered on VWP up to this point.

If I want to enter again to take the biometrics, can I enter on VWP? is it Valid?

Thanks in advance

[Kathryn41 3,205]

I've split the above posts off from the older "Married on a Tourist Visa" thread to make its own thread so as to provide the OP with information relevant to his circumstances. I am keeping it in this forum for now, however, any new threads on this topic should be started in the CR-1 forum as that is the process that is now the most appropriate to follow.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Moderator hat off. . .

I'm sorry, but what Harpa Timsah told you is correct. Once you left the US after filing for the AOS without either the green card or the Advance Parole travel document in your possession, you effectively abandoned your AOS application.

When you said you talked with USCIS on the help-line, you actually did not talk with USCIS. You talked with a low paid call center employee who is not an immigration officer and who reads off information from prepared scripts. They try to find the most appropriate script to fit your question and in many cases provide not only incorrect information - but disastrous information, which appears to be what happened to you. You can call up 5 different times and give the same information and receive 5 different answers - and all of them could be wrong. It is a serious liability that USCIS does need to address as others have been harmed by their misinformation as well.

If you needed to leave the US, then you should not have filed for AOS from within the US. The proper process would be to have your spouse file the I-130 petition (the I-129f is no longer valid as a fiancee petition). This would start the process on either a CR-1 or a K-3 visa (although the I-129f filed for the fiance visa technically would not be transferable for a K-3 and a new one would be required) - both of which are processed outside of the US. The K-3 visa is now virtually obsolete, so the I-129f would have been administratively closed and the CR-1 visa processing would continue. Once the I-130 is approved, the paperwork transfers to the National Visa Center where your wife would again file more paperwork on your behalf, then the process would be transferred to the US Consulate in the UK where you would attend an interview. (That is a very simplified overview of the process). When you were approved at the interview, you would have a CR-1 visa that activates your permanent residency status when you cross the border into the US.

The advice you received about filing the AOS, the work permit and the AP document was correct ONLY if you were not going to leave the US. You have to be physically present within the US during this process and cannot leave until you receive travel permission (AP) or permanent residency. Thus, the Call Center did you a serious dis-service - and this is why they are more often known as the 'Mis-Information Line' rather than the "Information Line' for those going through any immigration process.

I doubt you will be allowed to continue with the AOS process from within the country so there would be no point in attending the biometrics. One thing you may want to try - your wife should contact her Senator or her Congressman and explain to them exactly what happened - that you were given this advice specifically through the USCIS call center and it has cost you greatly in money, frustration and heart-ache. I have no idea if there is any way they would allow you to re-enter the US to resume processing on the AOS (I seriously doubt it), but it may earn you some consideration somewhere in the process that their error has caused you material loss that you would not have incurred if you had received the correct information.

Edited February 20, 2011 by Kathryn41

[Boiler 43,401]

As the others said you abandoned your AoS when you left without AP.

Forget about the adviseyou were given, even if you could prove it the Supreme Court has ruled that you have no right to rely on what they say.

Not sure if you plan visiting on the VWP again, the past attempt to adjust may cause problems.

Concentrate on the CR1.

[Jammy Bodger 0]

It states in SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 223 -- REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE PAROLE DOCUMENTS

(d) Effect of travel before a decision is made . Departure from the United States before a decision is made on an application for a reentry permit or refugee travel document shall not affect the application.

If the AP is still in play then the I485 should still be valid; and it later goes on to state on the next page

(f ) Issuance . A reentry permit or refugee travel document may be sent in care of a United States Consulate or an overseas office of the Service if the applicant so requests at the time of filing. Issuance of a reentry permit or refugee travel document to a person in exclusion or deportation proceedings shall not affect those proceedings.

And in my filing I requested that if the AP was granted after certain dates that it be issued in London.

Forget about the advice you were given, even if you could prove it the Supreme Court has ruled that you have no right to rely on what they say.

I don't need to rely on what they say; I asked for written instructions to be mailed to us in each case; but when did the Supreme Court Rule make that ruling? I'd love to know the details of that case..

[mrclean 3]

It states in SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 223 -- REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE PAROLE DOCUMENTS

If the AP is still in play then the I485 should still be valid; and it later goes on to state on the next page

And in my filing I requested that if the AP was granted after certain dates that it be issued in London.

I don't need to rely on what they say; I asked for written instructions to be mailed to us in each case; but when did the Supreme Court Rule make that ruling? I'd love to know the details of that case..

If I understand the section correctly and the text states "Effect of travel before a decision is made . Departure from the United States before a decision is made on an application for a reentry permit or refugee travel document shall not affect the application.", "application" is in reference to the application for the reentry permit and not to the application of the AOS. Separate forms and thus separate applications.

Edited February 20, 2011 by mrclean

[payxibka 10,044]

It states in SERVICE LAW BOOKS MENU \ TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 223 -- REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE PAROLE DOCUMENTS

(d) Effect of travel before a decision is made . Departure from the United States before a decision is made on an application for a reentry permit or refugee travel document shall not affect the application. Specifically does not refer to AP?

If the AP is still in play then the I485 should still be valid; and it later goes on to state on the next page

And in my filing I requested that if the AP was granted after certain dates that it be issued in London.

I don't need to rely on what they say; I asked for written instructions to be mailed to us in each case; but when did the Supreme Court Rule make that ruling? I'd love to know the details of that case..

Advance Parole and a Re-entry permit are two very different things. Most everything quoted refers to a re-entry permit and NOT AP. AP MUST be approved before you depart as that is the only way to preserve you status that you filed your I-485 based on. The moment you left without AP your status in the US was abandoned. Without status you can no longer adjust status as you no longer have any status to adjust from.

Edited February 20, 2011 by payxibka

[Kathryn41 3,205]

Read section 3. D and E - they are the relevant sections: http://www.uscis.gov/files/form/i-131instr.pdf

I'm sorry, really. This is not the news you want to hear when you are starting your new lives together.

[Boiler 43,401]

I don't need to rely on what they say; I asked for written instructions to be mailed to us in each case; but when did the Supreme Court Rule make that ruling? I'd love to know the details of that case..

That is odd because the instructions would show that you would abandon your case by leaving without AP. I do not have a link to the case, a search should find it.

[ceadsearc 515]

You've gotten some good advice here. I'm sorry for the situation you are going through, I would definitely have your wife contact her congressman though I doubt it will do any good in your case, it's good for them to know when issues like this are going on.

VWP is for non-immigrants only. You will likely be denied upon arrival because your pending AOS shows you do intend to immigrate. If for some reason customs was unaware of your pending AOS, you'd have to either lie about it (misrepresentation, and then you'll get denied at your interview) or tell the truth (and not be allowed to enter). Even if you were allowed to come and leave for just your biometrics under the caveat that you are not immigrating at that moment, you would have to return again for your interview at which point you would clearly intend to stay. A CR-1 is, unfortunately, your only real option right now.