Left the Country while Advance Parole and AOS were still pending

[Harpa Timsah 13,258]

Your AOS is abandoned and will be denied. Be prepared to pony up for a new application.

[Hypnos 6,576]

You're boned.

I doubt anything good will come from that deferred inspection appointment either; you might want to talk to an experienced immigration attorney before going to it, but I suspect you will be ordered to leave the country.

[Harpa Timsah 13,258]

Want to add: CBP doesn't know that I-485 is formally abandoned when a person leaves the US. They were being nice, but the law won't allow the old AOS to continue. You will need a new one.

Edited February 16, 2014 by Harpa Timsah

[badlo 1]

well if refiling another i-485 is all it takes we're completely fine with that. yeah its expensive but it wouldn't destroy us in any way. It would be much preferred to having to leave the country and apply from Germany. but that raises another question..would i need to refile the i-485 along with everything else, the I-864, the I-130, I-131, I-693?

and yes that was the wedding we attended.

[belinda63 2,981]

There are a few flaws with this. First she may not be permitted to remain in the U.S. She was paroled in and the appointment is to determine if she will be permitted to remain or not. Second you already have intent established. Is this a killer if you file to adjust status again, no, but it depends on what she said when she was admitted into the country. Third. Read number two. This could be a problem if she has to leave the country and then returns shortly thereafter and files for AOS.

If she is not made to leave the country then you will need to refile all the paperwork. Just look at your packet and copy it with new dates in the appropriate places. Provide updated information for your affidavit of support. She may be able to obtain another sealed medical report from the civil surgeon who did the first one.

Harpa's right, the I-130 is still valid, just the I-485 and the assorted paperwork would have to be refiled.

Edited February 16, 2014 by belinda63

[Harpa Timsah 13,258]

I-130 should still be alive. You will need a whole new I-485 package with medical, I-864, etc.

Still continue to your interview or appt. or whatever to keep the I-130 alive.

Edit: Oh, I see you have deferred inspection now. Yes, that complicates things. See that through first.

Edited February 16, 2014 by Harpa Timsah

[christeen 966]

Maybe I am missing something g, but if it is determined that AOS was abandoned, the spouse would then be ordered to leave the USA correct? If that is the case, how would another AOS package be able to be filed from within the USA? Would they not have to start over with a traditional CR1 from Germany? Or, Would they still be able to use the original i130 and just interview in Germany?

[Harpa Timsah 13,258]

People file AOS with deportations pending. Or they get them cancelled first so they can AOS. I am not sure that abandonment leads automatically to a deportation order, either.

Edited February 16, 2014 by Harpa Timsah

[christeen 966]

Even on VWP? I thought that put a big kink in that plan since there is no appeal to deportation?

[Harpa Timsah 13,258]

Even on VWP? I thought that put a big kink in that plan since there is no appeal to deportation?

Yeah, maybe. I recall reading an order instructing deportation jails that even people on VWP with deportation orders should get them cancelled if they have a path to AOS.

I am not sure the person, if they get officially admitted, would enter on the VWP anyway; it might just be some sort of parole.

[belinda63 2,981]

That's why this is a murky area. Was she considered to be admitted using parole or VWP. If it is determined she left without AP would her VWP rights allow her to remain? I don't think anyone here can answer that since she was paroled in rather than admitted on the VWP. Stay tuned to find out the answers.

[Harpa Timsah 13,258]

I am curious, if once they go to the deferred inspection appointment, they are denied US entry, then there would be no path to AOS at all.

A lot hinges on that appointment. Not a good position to be in. I have no idea what their criteria for entry or parole is.

[Hypnos 6,576]

I believe that, as a matter of law, they have been paroled in at the current time. The deferred inspection appointment will decide whether to fully "admit" them, or issue a Notice To Appear in immigration court seeking their removal.

I suspect that formally withdrawing the existing I-485 and then re-filing another (with a new I-693, new I-864, everything) will be one possible way out, even if they are referred to immigration court, but it's going to depend precisely on what CBP choose to do at this deferred inspection hearing. I certainly wouldn't be going to that appointment without at least speaking to an immigration attorney ahead of time, however.

It's a pretty big mess.

[badlo 1]

Indeed it is a big mess. we spoke with an immigration attorney just a few minutes ago. she advised that we continue to the deferred inspection appointment, and that they may let us refile the AOS. BUT most likely they will require my wife to leave the country and to file for a K3 Visa from here. its obviously not ideal but we booked a flight back to germany and will have the ticket in hand when going to the appointment at 8am. the attorney said that doing this will allow her to refile for a permanent visa without any restrictions on reentry (other than the visa of course)

[Hypnos 6,576]

The K-3 is obsolete; you would be filing for a CR-1 immigrant visa.