AOS DENIAL

[payneja01 0]

Here is the situation we are facing. My wife and I went through the K-1 process. Came to the US from Canada once approved. We got married within the time frame in November 2010. In March, there was a family emergency in Toronto, which she went back for prior to her AOS. We talked to USCIS and Boarder Security, and she was paroled back into the US. We continued with the process. Got a SSN. Got a job over the summer. Everything was moving along great. We got a letter in the mail today from California saying that her AOS has been denied. They based this on the fact she left the country prior to her AOS. The letter says that there is no appeal. But when we looked at USCIS.gov and called USCIS, they are telling us that we can file an appeal. We have an appointment to meet with an IO Monday morning. Can anyone tell me the following:

Can we file an appeal?

What is the likelyhood of the appeal being approved?

What happens if the appeal is either not allowed or denied?

What can we do to fight this?

Does the fact that I'm in the military play into this?

We will be greatfull for any and all help.

JP

[Darnell 8,478]

call back into USCIS, get an ISO, ask all of them questions to an ISO, let us know the answers, aye?

http://www.dhs.gov/files/publications/gc_1305658440339.shtm

[Harpa Timsah 13,258]

What does the denial letter say? On what basis did you file AOS? If she was paroled back in to the country, then I don't think you can file a simple K-1 AOS. I think you'd need a I-130 as well.

[stronger 43]

Yeah, they are sticklers about asking for permission before leaving. They want you to get that stamp in your passport and they will do it for an emergency with proof. And even before AOS and Advance Parole. However, that is in the past and you can't change that. What I would advise is if you can gather and proof of that emergency. If it was a death or illness, get that paperwork to prove why she left. Once in a blue moon, you break through the red tape to their ticking hearts and they will help out. Happened for me once 12 years ago. So it does happen. Have faith!

[Penguin_ie 5,986]

**** Moving from K1 to AOS from Family Visa... ****

[VanessaTony 3,567]

Can we file an appeal? Well normally there is an appeal from a K1 AOS but she wasn't denied for grounds that you can help overcome (grounds that can be overcome and fake relationship etc). She was denied for doing something that abandoned her process. They have proof she left. You admit she left. It would be expensive and pointless.

What is the likelyhood of the appeal being approved? Extremely low.

What happens if the appeal is either not allowed or denied? Well normally she would be put in removal proceedings.

What can we do to fight this? I wouldn't waste time appealing. It's a given that she broke the rule. It's a given that she abandoned her process. She is however married to you so I would file the I-130 and I-485.

Does the fact that I'm in the military play into this? It could help expedite if you had orders but otherwise no.

Answers in red above. Basically don't waste time appealing. File the I-130 and I-485 package.

[jingo 38]

Thats terrible, Im so sorry that happened to you both. The government is ridiculous.

[duriantaste 44]

Got a SSN. Got a job over the summer.

How did you manage to do that? The SSN we got states that my wife can't work.

[bigdog 376]

I think I would file, I-130 and I-485 package. You have to follow the rules unfortunately, maybe see an attorney.,

[Rebecca Jo 1,962]

Answers in red above. Basically don't waste time appealing. File the I-130 and I-485 package.

But talk to an immigration attorney first. Because her status adjustment has been denied, she is accruing overstay. If I do the math right in my head, she's already got a three year ban and is ticking right up upon a 10 year ban. So in addition to the I-130 and I-1485, she is going to have to file a hardship waiver.

She should NOT leave the country until you have talked to competent counsel.

How did you manage to do that? The SSN we got states that my wife can't work.

I doubt that.

It says she can't work without DHS authorization.

An EAD and a restricted SS card equal authorization to work.

[duriantaste 44]

But talk to an immigration attorney first. Because her status adjustment has been denied, she is accruing overstay. If I do the math right in my head, she's already got a three year ban and is ticking right up upon a 10 year ban. So in addition to the I-130 and I-1485, she is going to have to file a hardship waiver.

She should NOT leave the country until you have talked to competent counsel.

I doubt that.

It says she can't work without DHS authorization.

An EAD and a restricted SS card equal authorization to work.

Maybe I did not read the part that she has EAD.

[VanessaTony 3,567]

But talk to an immigration attorney first. Because her status adjustment has been denied, she is accruing overstay. If I do the math right in my head, she's already got a three year ban and is ticking right up upon a 10 year ban. So in addition to the I-130 and I-1485, she is going to have to file a hardship waiver.

She should NOT leave the country until you have talked to competent counsel.

She should not leave the country at all now. He should file the I-130/I-485. There won't be a hardship waiver because she DOESN'T have a ban. She might have a ban if she leaves before she has her GC approved. It doesn't appear from the OP there is enough overstay to trigger a ban. She didn't accumulate overstay while AOS was pending but he doesn't say WHEN they filed AOS so we don't know how long the time is between the I-94 and filing.

They should be totally fine. Speaking with an immigration attorney is great but it should be a relatively simple I-130/I-485. I'm just not sure if the "paroled" I-94 makes a difference.

[Rebecca Jo 1,962]

She should not leave the country at all now. He should file the I-130/I-485. There won't be a hardship waiver because she DOESN'T have a ban. She might have a ban if she leaves before she has her GC approved. It doesn't appear from the OP there is enough overstay to trigger a ban. She didn't accumulate overstay while AOS was pending but he doesn't say WHEN they filed AOS so we don't know how long the time is between the I-94 and filing.

They should be totally fine. Speaking with an immigration attorney is great but it should be a relatively simple I-130/I-485. I'm just not sure if the "paroled" I-94 makes a difference.

Yes it does because that is her last entry.

[Fifth Echelon 6]

I'm just not sure if the "paroled" I-94 makes a difference.

I believe this is the key question. Normally any legal admission means you can apply for AOS. However parole is technically not admission into the US. I would recommend going down the I-130 + I-485 route ASAP, after talking to counsel about the parole I-94 issue.

[VanessaTony 3,567]

I believe this is the key question. Normally any legal admission means you can apply for AOS. However parole is technically not admission into the US. I would recommend going down the I-130 + I-485 route ASAP, after talking to counsel about the parole I-94 issue.

Thank you that's what I was wondering. Whether a paroled I-94 has conditions like "no AOS" or something.