AP card to expire while Abroad - AOS application pending

[jcr7519 0]

Please help, we have a situation on our hands:

• My wife’s AOS application is pending (submitted October 2012). I am a US citizen.
• She received an AP card in December 2012 with 1 year validity – it expires December 17, 2013
• We relocated abroad in January 2013 due to my overseas work assignment and we have not returned to the US since
• Her AP is cracked in half and it expires in two weeks. So we can't urgently travel back to the US with the broken card.
• My overseas work assignment is planned to be extended until October 2014. My wife and I would like to continue to reside abroad until Oct 2014 and be able to travel back to the US occasionally to visit family between now and the end of my assignment. We’ll also of course need to travel back to the US when her Green Card interview is scheduled
• Our understanding is that her AOS application is beyond normal processing times. It’s been submitted over a year ago and is still in “Initial Review” status.
• We were expecting to receive notice of her Green Card interview by now and travel back to the US for her interview before her AP card expired.
• We somehow lost sight of her AP card expiration date and now are not in a very good situation. She cannot re-enter the US with her broken AP card and we’re not sure if she can apply for a renewal while living abroad.

We’re afraid her conditional permanent residence status is at risk of being considered abandoned and are unclear what our options are. We need to continue residing abroad for another year due to my work assignment and we want to be able to travel back to the US at will to visit family and when her Green Card interview is scheduled.

Our questions are:

• Should we submit a I-131 application for AP card renewal immediately?
• If yes, should what should we check under Part 2 – D or F?
• If F, I’m concerned because I’ve read in the I-131 “Application for Travel Document” instructions: “The granting of an AP Document for individuals outside the US is an extraordinary measure used sparingly…” We’re afraid she won’t be issued a renewed AP card.
• If D, I’m not sure if us actually residing abroad is considered “temporary foreign travel”. Also, my wife is already abroad and would need to put a past date in part 3 “date of intended departure” Expected length of trip would be nearly 2 years.

Another issue (I know, this is terrible), we have lost the NOA receipt that USCIS received her AOS application (I-485) and I see that a copy is required to request AP card renewal (I-131). Only evidence we have is a printout from “check my case status” online. I think there’s a way to request a replacement but this will take time and we wouldn’t receive it before her AP card is expired so I’m unsure if there will be a point in requesting this. I also read that applying for a replacement costs $400. We’ll do it if there no other way but hope we can avoid this expense. Maybe we do need an original for her GC interview?

There are a lot of questions here. Thank you for your patience reading this. We feel terrible we let ourselves get into this situation and are desperate for some ideas on how to approach things.

[Dave&Roza 748]

Please help, we have a situation on our hands:

• My wife’s AOS application is pending (submitted October 2012). I am a US citizen. Seems a bit long. Are you sure they have not tried to contact you? Issued you an RFE?
• She received an AP card in December 2012 with 1 year validity – it expires December 17, 2013
• We relocated abroad in January 2013 due to my overseas work assignment and we have not returned to the US since She has until December 16th to return to the US or she will not be re-admitted and the AOS will be abandoned.
• Her AP is cracked in half and it expires in two weeks. So we can't urgently travel back to the US with the broken card. Visit the nearest US Embassy and see about getting a travel document as she needs to return to teh US ASAP.
• My overseas work assignment is planned to be extended until October 2014. My wife and I would like to continue to reside abroad until Oct 2014 and be able to travel back to the US occasionally to visit family between now and the end of my assignment. We’ll also of course need to travel back to the US when her Green Card interview is scheduled Forget about the current GC application. When ready to live in the US file for a spousal visa.
• Our understanding is that her AOS application is beyond normal processing times. It’s been submitted over a year ago and is still in “Initial Review” status. Are you sure as the website is not very reliable
• We were expecting to receive notice of her Green Card interview by now and travel back to the US for her interview before her AP card expired. What if you do not have an interview and the GC was mailed to your old address?
• We somehow lost sight of her AP card expiration date and now are not in a very good situation. She cannot re-enter the US with her broken AP card and we’re not sure if she can apply for a renewal while living abroad. Even if she could renew the card, she has to re-enter the US before the 1 year mark or she will not be allowed into the US without another type of visa--like a spousal visa. Since she does not have a GC, she is NOT a conditional LPR. She is not yet a LPR. She has been granted parole to re-enter the US with a pending AOS application which is in serious jeopardy of being abandoned.

We’re afraid her conditional permanent residence status is at risk of being considered abandoned and are unclear what our options are. We need to continue residing abroad for another year due to my work assignment and we want to be able to travel back to the US at will to visit family and when her Green Card interview is scheduled.

Our questions are:

• Should we submit a I-131 application for AP card renewal immediately? No, waste of time and money. SHE needs to get herself back to the US ASAP
• If yes, should what should we check under Part 2 – D or F?
• If F, I’m concerned because I’ve read in the I-131 “Application for Travel Document” instructions: “The granting of an AP Document for individuals outside the US is an extraordinary measure used sparingly…” We’re afraid she won’t be issued a renewed AP card.
• If D, I’m not sure if us actually residing abroad is considered “temporary foreign travel”. Also, my wife is already abroad and would need to put a past date in part 3 “date of intended departure” Expected length of trip would be nearly 2 years.

Another issue (I know, this is terrible), we have lost the NOA receipt that USCIS received her AOS application (I-485) and I see that a copy is required to request AP card renewal (I-131). Only evidence we have is a printout from “check my case status” online. I think there’s a way to request a replacement but this will take time and we wouldn’t receive it before her AP card is expired so I’m unsure if there will be a point in requesting this. I also read that applying for a replacement costs $400. We’ll do it if there no other way but hope we can avoid this expense. Maybe we do need an original for her GC interview?

There are a lot of questions here. Thank you for your patience reading this. We feel terrible we let ourselves get into this situation and are desperate for some ideas on how to approach things.

If your wife remains outside the US for more than one year without an re-entry permit, she looses her GC if she was a LPR. Since she has been outside the US for more than 6 months and has not retained ties to maintain her LPR status, there is a good change that the CBP will deny her re-entry as she has not been a LPR of the US. A LPR of the US LIVES in the US or files the correct forms to maintain their LPR status while living outside the US. However, your wife is not even a LPR yet. She has a pending AOS application and has left the country for an extended period of time and hopes to re-enter using the AP. A person using AP is held to the same standards as a LPR when it comes to time outside the US.

If you are planning to live abroad for another year or two then the best course will be to file for a spousal visa when you decided to return to the US and she makes the US her home. I think you are too far down the garden path to say this situation. You have 19 days for her to re-enter the US. She would have to remain in the US for a while and get another AP or find out what is going on with her GC application by making an infopass appointment at the local office. All of this is a hassle and it may just be simpler to file for the spousal visa about 1 year before you decide to return to the US.

Good luck,

Dave

Edited November 27, 2013 by Dave&Roza

[jcr7519 0]

Hi Dave,

Thanks for your reply. I just got off the phone with a USCIS customer service representative and they recommended my wife visit the nearest US Consulate or Embassy to obtain a travel document in order to travel back to the US when her GC interview appointment is scheduled. Because we changed our address with USCIS in July, her AOS case was transferred to a different filed office and the processing times started from scratch. I forgot to mention we changed addresses in my original post - I didn't realize that meant the case processing time would be reset but it makes sense. So, her AOS application is still within normal processing times for that particular field office...an interview or decision should be taken around March 2014. Best possible outcome would be she receives her GC or GC interview notice, then she can quickly obtain a travel document to re-enter the US. However, I'm not sure if she can obtain a travel document with an expired AP card? I'm going to ask the consulate this question. Maybe you have knowledge/experience with this? If the travel document route won't work then obtaining a spousal visa is the only other option I see.

Regarding your comment " She has until December 16th to return to the US or she will not be re-admitted and the AOS will be abandoned. " the USCIS customer service rep told me she could re-enter the US on a travel document and her AOS case would not be abandoned even after AP card expiration. I think I need to look into this deeper. CAn I ask why you say her AOS will be abandoned - have you or other VJ members experienced this ?

and your comment "Forget about the current GC application. When ready to live in the US file for a spousal visa. " again, USCIS Cust service told me no issues with her current application...it's still healthy, no red flags. The only hurdle seems to be getting into the US on a travel document. Which the customer service rep didn't think would be an issue to obtain but I still need to hear this from the US Consulate.

Thanks a lot! really appreciate your feedback.

I'll post what I find out form the Consulate for the benefit of others...

Justin

[Dave&Roza 748]

Hi Dave,

Thanks for your reply. I just got off the phone with a USCIS customer service representative and they recommended my wife visit the nearest US Consulate or Embassy to obtain a travel document in order to travel back to the US when her GC interview appointment is scheduled. Because we changed our address with USCIS in July, her AOS case was transferred to a different filed office and the processing times started from scratch. I forgot to mention we changed addresses in my original post - I didn't realize that meant the case processing time would be reset but it makes sense. So, her AOS application is still within normal processing times for that particular field office...an interview or decision should be taken around March 2014. Best possible outcome would be she receives her GC or GC interview notice, then she can quickly obtain a travel document to re-enter the US. However, I'm not sure if she can obtain a travel document with an expired AP card? I'm going to ask the consulate this question. Maybe you have knowledge/experience with this? If the travel document route won't work then obtaining a spousal visa is the only other option I see.

Regarding your comment " She has until December 16th to return to the US or she will not be re-admitted and the AOS will be abandoned. " the USCIS customer service rep told me she could re-enter the US on a travel document and her AOS case would not be abandoned even after AP card expiration. I think I need to look into this deeper. CAn I ask why you say her AOS will be abandoned - have you or other VJ members experienced this ?

and your comment "Forget about the current GC application. When ready to live in the US file for a spousal visa. " again, USCIS Cust service told me no issues with her current application...it's still healthy, no red flags. The only hurdle seems to be getting into the US on a travel document. Which the customer service rep didn't think would be an issue to obtain but I still need to hear this from the US Consulate.

Thanks a lot! really appreciate your feedback.

I'll post what I find out form the Consulate for the benefit of others...

Justin

It is called the misinformation line for a reason. The person heard you say you have an AP card. They may be thinking that you applied for a re-entry permit which would allow your wife to remain outside the US for more than 1 year, but the expiration date would reflect this fact. You applied for AP to allow your wife to travel until the GC arrived. It will expire on December 17th. Your wife has been outside the US for 11 months. If she remains outside for more than 1 year than she will not be re-admitted without a valid re-entry permit. Even if your AP was considered a re-entry permit, it expires on December 17th. Get thee to the nearest Embassy/Consulate and get your wife a travel document so she can enter the US before the AP expires. Then have her determine what is up with the GC and get the GC BEFORE she leaves the US again. Yo might want to have a look at this webpage to see how travel affects ones LPR status. You need to get you wife back into the US ASAP, get the GC in her hot little hands and then decide your next course. Not doing so will result in you having to file the spousal visa and she will have to remain outside the US until it is approved--more time and money.

Good luck,

Dave

[Henry&Rebecca 39]

What I find concerning is the fact that OP thinks that receiving an AP, or even a GC at that, is synonymous with "able to stay outside the US however long she wants with no issues". First thing you have to understand is that this is not the case. An AP, as well as a GC are both granted to those who wish to maintain a primary residence inside the US and are only looking to travel for just about any reason other than to live abroad. The fact is that even a GC holder can NOT be outside of the US for a period of time that is longer than 1 year without obtaining a travel document (not the same as an AP, even though it uses the same form I-131) BEFORE she leaves the country.

You need to approach this topic very carefully when talking to the consulate or applying for anything with USCIS. Because right now, the way all evidence points, your wife was in the US just barely enough to receive an AP... and then she left and didn't return for 11 months already and likely won't before the 1 year max limit passes (which, in itself, one could argue is reason enough to prove that she abandoned her "primary residence" in the US, and therefore her GC application).

I don't know HOW you're going to handle this issue. I have no advice on that and will differ to the better judgment of more informed folk on here. I just found it very concerning that you were stating all these "She will apply for this/that when AP ends" "She will travel to US if/when GC interview is scheduled, and every once in a while to visit family" intentions without realizing that the very moment USCIS gets a whiff of your wife not intending to maintain a PRIMARY RESIDENCE inside the US, even if she had a GC at the time (which she doesn't even have yet) they will consider her GC abandoned, unless she had applied for a travel document (NOT the same as AP) BEFORE leaving.

Well... the above is at least my understanding of the system. Please feel free to correct me if I said something wrong.

Edited November 27, 2013 by Henry&Rebecca

[Hypnos 6,579]

You certainly have problems.

Without a re-entry permit (and, again, you cannot obtain one of those without a green card) an alien can only stay outside the US for one calendar year before their residency is deemed abandoned. You also have a secondary issue of the AP being mutilated so you cannot travel back to the US on it right now.

Now, you could obtain a transportation letter / travel document from the US embassy probably with little difficulty, and then travel to the US for a time to not fall under the "one year" rule, but this doesn't fix the overall problem of her not living in the US. A green card is for someone who wishes to live in the US, and your wife isn't doing that. Given that it's your intention not to return to the US until October 2014 then I'm not even sure her green card would be granted at an interview under these circumstances.

Honestly, the "cleanest" solution to me is to just forget about the current application and abandon it. Then, a few months before you intend to return to the US, apply for a spousal visa for her which will automatically grant a green card upon entry to the US. You would likely be able to file DCF as well since you are legally living and working in China right now, which is good since this method shaves substantial amounts of time off the process (you essentially bypass USCIS in the US and deal only within the US Embassy in China); theoretically you could go from application to visa issuance in just a few months.

Of course, it's ultimately up to you what to do, but I feel hanging on to your current application is not a prudent strategy for reasons stated, and unless she somehow returns to the US by January 2014 her AoS will be automatically deemed abandoned anyway.

Edited November 27, 2013 by Hypnos

[Darnell 8,480]

I'm not so convinced they are in China.

also,

CAn I ask why you say her AOS will be abandoned - have you or other VJ members experienced this ?

Usually the AOS is considered abandoned if the AOS seeker left the USA before the greencard is awarded.

However, for a K-1 visa holder, the rules are different.

IMO, she should transit back into the USA this week or next,

then stay inside the USA long enough to file for and receive a new AP card. Sure, the AP card is mutilated, but she has all pieces, and she will be ok getting on the plane and exiting a POE with a mutilated but complete AP card.

Something is really amiss with the green card issuance, IMO.

Edited November 27, 2013 by Darnell

[Hypnos 6,579]

Usually the AOS is considered abandoned if the AOS seeker left the USA before the greencard is awarded.

However, for a K-1 visa holder, the rules are different

No, the rules for a K-1 are exactly the same. Her AP is currently what's keeping the application going, and on the day her AP expires then her AoS is abandoned, if she is still outside the US.

AoS from a K visa can take around a year, especially in interview-waiver cases. This does not address the larger issue that she is not living in the US, however.

I doubt very much she could use the mutilated AP already in her possession to recenter the US, but I would imagine the embassy could provide a transportation letter.

Edited November 27, 2013 by Hypnos

[jcr7519 0]

It is called the misinformation line for a reason. The person heard you say you have an AP card. They may be thinking that you applied for a re-entry permit which would allow your wife to remain outside the US for more than 1 year, but the expiration date would reflect this fact. You applied for AP to allow your wife to travel until the GC arrived. It will expire on December 17th. Your wife has been outside the US for 11 months. If she remains outside for more than 1 year than she will not be re-admitted without a valid re-entry permit. Even if your AP was considered a re-entry permit, it expires on December 17th. Get thee to the nearest Embassy/Consulate and get your wife a travel document so she can enter the US before the AP expires. Then have her determine what is up with the GC and get the GC BEFORE she leaves the US again. Yo might want to have a look at this webpage to see how travel affects ones LPR status. You need to get you wife back into the US ASAP, get the GC in her hot little hands and then decide your next course. Not doing so will result in you having to file the spousal visa and she will have to remain outside the US until it is approved--more time and money.

Good luck,

Dave

Thanks Dave. We are going to the US Consulate in Shanghai as soon as they re-open after the Thanksgiving holiday to see if a travel document can be issued to my wife allowing her to enter the US before the AP expires on Dec. 17th. We can take this route IF her AOS application is indeed still pending and hasn't been canceled. USCIS check my case status and phone customer service reps have informed us that her case is still in a "initial review" status however I question the health of her pending AOS application. I just found out USCIS mailed a request for her provide an additional document in order to continue processing of her AOS case - she was supposed to deliver the document in person in NYC by August 30th or return the letter explaining why she wouldn't be able to do so. This was never done!! The letter was mailed to my father in Buffalo, NY (we've been using his address as our mailing address while abroad to ensure we don't miss any correspondence...which has failed us) but my father completely overlooked it until now somehow. Obviously we're really upset about this. Anyhow, this is the situation we are now in. On the request for additional document letter sent to my wife back in August, it's clearly stated that failure to supply the doc MAY result in denial of the petition. Have any VJ members experience with a similar situation? We're going to call the USCIS "next level" of customer service (the service rep I spoke with told me to call back Friday to speak with a "next level" representative) when they re-open Friday after Thanksgiving. I'm also looking into contacting the Buffalo field office directly where her application is being processed. What a terrible mess we've gotten ourselves into.

So, in short, if her AOS app is still or can remain "healthy" we're going to get back to the US next week before her AP card expires and submit an application for renewal or for a re-entry permit (need to look into which is appropriate given our circumstances....please input if you know). It's a tricky situation because I'm on work assignment in China and shouldn't be outside of China missing work for an extended period of time until assignment completion October 2014 and we want to avoid being separated (her waiting in US for AP card/RE-entry permit while I'm back in China) but we're focused on the big picture and we'll do what's necessary to get her a GC.

If her AOS has been denied because we never supplied the requested document the it looks like we have no choice but to re-apply for a visa. I think she will be eligible for Direct Consular Filing of s spousal immigrant visa:

http://www.uscis.gov/green-card/green-card-processes-and-procedures/consular-processing

I meet the requirement: "If the U.S. citizen has been authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months"

We'll have to pay to file the I-130 petition but the Visa the lead time seems to be short (3 months) and she'd be a LPR upon entry into the US. AOS not required with this route is my understanding. Once the the spousal visa is granted thru DCF, she would enter the US, wait approx 30 days for her GC then could travel back to join me in China until the end of my assignment in October when would would be permanently re-locating back to the US. hope I'm not overlooking any key pieces of information.

Thanks again for you sharing your thoughts on our situation.

[jcr7519 0]

What I find concerning is the fact that OP thinks that receiving an AP, or even a GC at that, is synonymous with "able to stay outside the US however long she wants with no issues". First thing you have to understand is that this is not the case. An AP, as well as a GC are both granted to those who wish to maintain a primary residence inside the US and are only looking to travel for just about any reason other than to live abroad. The fact is that even a GC holder can NOT be outside of the US for a period of time that is longer than 1 year without obtaining a travel document (not the same as an AP, even though it uses the same form I-131) BEFORE she leaves the country.

You need to approach this topic very carefully when talking to the consulate or applying for anything with USCIS. Because right now, the way all evidence points, your wife was in the US just barely enough to receive an AP... and then she left and didn't return for 11 months already and likely won't before the 1 year max limit passes (which, in itself, one could argue is reason enough to prove that she abandoned her "primary residence" in the US, and therefore her GC application).

I don't know HOW you're going to handle this issue. I have no advice on that and will differ to the better judgment of more informed folk on here. I just found it very concerning that you were stating all these "She will apply for this/that when AP ends" "She will travel to US if/when GC interview is scheduled, and every once in a while to visit family" intentions without realizing that the very moment USCIS gets a whiff of your wife not intending to maintain a PRIMARY RESIDENCE inside the US, even if she had a GC at the time (which she doesn't even have yet) they will consider her GC abandoned, unless she had applied for a travel document (NOT the same as AP) BEFORE leaving.

Well... the above is at least my understanding of the system. Please feel free to correct me if I said something wrong.

Thanks for your feedback. My wife and I intend to maintain a primary residence inside the US as soon as my work assignment in China is completed in October 2014. However I agree with you that the issue is that USCIS are not aware of this and all evidence points toward abandonment of her intentions to reside in the US. She applied for her AP card before I was offered the work assignment in China so our present 11 month long duration "trip" outside of the US was never listed on the I-131 AP card application as a travel intention. We unfortunately have another complexity with her application that may have already resulted in denial - explained in my feedback to Dave. We are going to speak again with USCIS "next level" cust service on Friday after Thanksgiving holiday when USCIS re-opens. apparently this is a higher level of support for escalated case issues). I don't know what else we can do. We need to sort out if her case is still healthy or denied. If healthy, we need to be clear how and when she must enter the US to maintain her AOS case. If it's already denied, I think our best option is to apply for an immigrant spousal visa with direct consular filing.

[Hypnos 6,579]

If you failed to respond to an RFE then it's a guaranteed denial. The AP and EAD are also invalidated the day the I-485 is denied. If it hasn't been formally denied yet then it's only a matter of time.

You should pursue the spousal visa route at the appropriate time; the AoS is dead.

Your wife would not be able to travel to the US before you once her visa was approved, you would need to either accompany her or she travels subsequent to you. The reason for this is that the visa is meant for "family reunification" purposes, and by definition you would be the family she would be "reunifying" with, so she must either travel with you or you would need to be present in the US already before she could travel.

Edited November 28, 2013 by Hypnos

[Dave&Roza 748]

Thanks Dave. We are going to the US Consulate in Shanghai as soon as they re-open after the Thanksgiving holiday to see if a travel document can be issued to my wife allowing her to enter the US before the AP expires on Dec. 17th. We can take this route IF her AOS application is indeed still pending and hasn't been canceled. USCIS check my case status and phone customer service reps have informed us that her case is still in a "initial review" status however I question the health of her pending AOS application. I just found out USCIS mailed a request for her provide an additional document in order to continue processing of her AOS case - she was supposed to deliver the document in person in NYC by August 30th or return the letter explaining why she wouldn't be able to do so. This was never done!! The letter was mailed to my father in Buffalo, NY (we've been using his address as our mailing address while abroad to ensure we don't miss any correspondence...which has failed us) but my father completely overlooked it until now somehow. Obviously we're really upset about this. Anyhow, this is the situation we are now in. On the request for additional document letter sent to my wife back in August, it's clearly stated that failure to supply the doc MAY result in denial of the petition. Have any VJ members experience with a similar situation? We're going to call the USCIS "next level" of customer service (the service rep I spoke with told me to call back Friday to speak with a "next level" representative) when they re-open Friday after Thanksgiving. I'm also looking into contacting the Buffalo field office directly where her application is being processed. What a terrible mess we've gotten ourselves into.

So, in short, if her AOS app is still or can remain "healthy" we're going to get back to the US next week before her AP card expires and submit an application for renewal or for a re-entry permit (need to look into which is appropriate given our circumstances....please input if you know). It's a tricky situation because I'm on work assignment in China and shouldn't be outside of China missing work for an extended period of time until assignment completion October 2014 and we want to avoid being separated (her waiting in US for AP card/RE-entry permit while I'm back in China) but we're focused on the big picture and we'll do what's necessary to get her a GC.

If her AOS has been denied because we never supplied the requested document the it looks like we have no choice but to re-apply for a visa. I think she will be eligible for Direct Consular Filing of s spousal immigrant visa:

http://www.uscis.gov/green-card/green-card-processes-and-procedures/consular-processing

I meet the requirement: "If the U.S. citizen has been authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months"

We'll have to pay to file the I-130 petition but the Visa the lead time seems to be short (3 months) and she'd be a LPR upon entry into the US. AOS not required with this route is my understanding. Once the the spousal visa is granted thru DCF, she would enter the US, wait approx 30 days for her GC then could travel back to join me in China until the end of my assignment in October when would would be permanently re-locating back to the US. hope I'm not overlooking any key pieces of information.

Thanks again for you sharing your thoughts on our situation.

To be blunt--you are screwed. Do not waste your time, money, and efforts on trying to get her back into the US after not responding to the RFE. Her AOS has been or soon will be denied and the CBP has a very good case to not admit her to the US. IMHO, you should wait until about the March time frame and do the DCF for the spousal visa. Once it is approved, take a look at its expiration date. Typically they are valid for 6 months so if it takes 3 months to process and she receives it in June/July, she would have until the end of 2014 to enter the US and activate her GC. Hopefully by then you will be living in the US and not jeopardizing her LPR once she enters the US again. To try to get a travel document and enter the US and then try to keep the existing AOS case going will take a lot of time and effort on both of your parts that I feel can be avoided by going the DCF route in China--all of this will have to be done in the US while you are still in China.

So I would just forget about the current AOS case. Wait until about March/April and do the DCF. Once approved see what the expiration date on the visa is and if she can wait and travel with you in October. The visa should be valid for at least 3 months, typically they are valid for 6 months from the date of the medical. Even so, she might not have to leave China until September or October.

Good luck,

Dave

[jcr7519 0]

To be blunt--you are screwed. Do not waste your time, money, and efforts on trying to get her back into the US after not responding to the RFE. Her AOS has been or soon will be denied and the CBP has a very good case to not admit her to the US. IMHO, you should wait until about the March time frame and do the DCF for the spousal visa. Once it is approved, take a look at its expiration date. Typically they are valid for 6 months so if it takes 3 months to process and she receives it in June/July, she would have until the end of 2014 to enter the US and activate her GC. Hopefully by then you will be living in the US and not jeopardizing her LPR once she enters the US again. To try to get a travel document and enter the US and then try to keep the existing AOS case going will take a lot of time and effort on both of your parts that I feel can be avoided by going the DCF route in China--all of this will have to be done in the US while you are still in China.

So I would just forget about the current AOS case. Wait until about March/April and do the DCF. Once approved see what the expiration date on the visa is and if she can wait and travel with you in October. The visa should be valid for at least 3 months, typically they are valid for 6 months from the date of the medical. Even so, she might not have to leave China until September or October.

Good luck,

Dave

You've made it clear a DCF Spousal Visa route is the most sensible for us to take. Even if her denial of her AOS could somehow be avoided, this route would cost us more money and time as we'd likely have to fly back to the US twice prior to the end of my assignment in Oct '14 - for her AP card renewal and GC interview.

A concern I have with the DCF Spousal Visa is that I have a business trip planned to the US in February. According to the USCIS Consular Processing page, if I take this trip my wife would be ineligible for DCF spousal visa application, assuming we would apply for it in March: "Although immigrant petitions are filed with USCIS, In some cases, an I-130 petition may be filed for an immediate relative (spouse, child, or parent of a U.S. citizen) with a U.S. embassy or consulate abroad. Situations where this may be applicable include: If the U.S. citizen has been authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months"

We could file prior to my business trip in Feb but this presents an issue - we don't have a certified copy of our marriage certificate - and it's one of the requirements to file the 1-130 in China for DCF. I'm looking into if this document can be obtained by a family member/lawyer on our behalf and mailed to us in China.

[jcr7519 0]

You certainly have problems.

Without a re-entry permit (and, again, you cannot obtain one of those without a green card) an alien can only stay outside the US for one calendar year before their residency is deemed abandoned. You also have a secondary issue of the AP being mutilated so you cannot travel back to the US on it right now.

Now, you could obtain a transportation letter / travel document from the US embassy probably with little difficulty, and then travel to the US for a time to not fall under the "one year" rule, but this doesn't fix the overall problem of her not living in the US. A green card is for someone who wishes to live in the US, and your wife isn't doing that. Given that it's your intention not to return to the US until October 2014 then I'm not even sure her green card would be granted at an interview under these circumstances.

Honestly, the "cleanest" solution to me is to just forget about the current application and abandon it. Then, a few months before you intend to return to the US, apply for a spousal visa for her which will automatically grant a green card upon entry to the US. You would likely be able to file DCF as well since you are legally living and working in China right now, which is good since this method shaves substantial amounts of time off the process (you essentially bypass USCIS in the US and deal only within the US Embassy in China); theoretically you could go from application to visa issuance in just a few months.

Of course, it's ultimately up to you what to do, but I feel hanging on to your current application is not a prudent strategy for reasons stated, and unless she somehow returns to the US by January 2014 her AoS will be automatically deemed abandoned anyway.

thanks. i agree that hanging onto her current AOS app is not a prudent strategy. do you know if we need to take any action to properly withdraw or cancel it or do we just let it self -destruct in Jan after it's considered abandoned? I don't want her case abandonment coming back to haunt us later and cause complications for her DCF visa application.

another concern i've raised to Dave is that I have a business trip to the US planned i Feb. we may have to apply for her DCF visa before my trip to be eligible:

"Although immigrant petitions are filed with USCIS, In some cases, an I-130 petition may be filed for an immediate relative (spouse, child, or parent of a U.S. citizen) with a U.S. embassy or consulate abroad. Situations where this may be applicable include:

• If the U.S. citizen has been authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months"

http://www.uscis.gov/green-card/green-card-processes-and-procedures/consular-processing

I have a Chinese Residence Permit that's been valid since May 9th 2013. Does this mean that since November 9th 2013 I've been "authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months"? I think so but am not positive. Or do I have to be PHYSICALLY residing continuously in China to be eligible for DCF?

Preferably we'd apply for DFC in March/April for a couple of reasons. 1) so the Visa timing would align with the end of my assignment in Oct '14 and we wouldn't need to take an additional trip back the the US and 2) I could obtain a certified copy of our marriage certificate while in the US in Feb as we don't currently have one.

I just don't want to jeopardize DCF visa eligibility. This is really important to us - we've messed up with her AOS and are trying hard to develop a prudent strategy for my wife and I to reside together in China until end of my work assignment in Oct '14 and then return together to the US to reside, her entering as a LPR and obtaining her GC.

We're grateful for the responsiveness of this knowledgable community - thanks for all the support!

[Hypnos 6,579]

Good question about the DCF, I'm honestly not sure one way or another.

I'd suggest posting on the DCF board: http://www.visajourney.com/forums/forum/82-direct-consular-filing-dcf-general-discussion/ where I'm sure someone would know.