Wife left during AOS to avoid illegal presence, now trapped in Canada

[CND1975 3]

Hello all, thank you for your help so far.

in combing the forum, I am unable to find something similar to our situation.


Here is our timeline for our employment based GC application (both applicants are Canadian entered on LIA/B): 

-July 22, 2017, received NOID. submitted new evidence as requested. 
-November 30th, 485 denied due to denied 601. Husband was caught for 2.2 grams of Cannabis 24 yrs ago in Canada. NOID did not ask for any reason listed in denial. 
-December 26, 2017, MTR filed for I601  
-February 15, 2018, field office transferred MTR to AAO. 
-April 16, 2018-both husband and wife EAD/AP expired. Husband resigned work. 
-wife left for Canada on May 5th as instructed by lawyer without valid AP thinking we could return with GC when approved. (we were hoping to avoid her accruing illegal presence should MTR be denied).
-June 26th, 2018, AAO approved MTR i601 and transferred file back to field office. 
-July 6th, 2018, lawyer informed us that by wife leaving, she abandoned GC application. Words can't describe our disappointment that our lawyer didn't tell us about the GC application abandonment. We have spent 8.5 yrs on this and would not have left but she was concerned about accrual of unlawful status which is why wife left before that occurred. Husband had to stay due to expired i-192. 

What are our options? If 485 was in denied status, is it still considered abandonment? Is consular processing really the only option?

Is there any option to apply for AP/EAD and mail to her or continue GC app from USA and mail her the approved GC? Bios were done in 2016.

Also, have heard about pleading case at border with CBP agent and hoping for a deferred entry.

Thank you in advance for any assistance. Being separated during consular will be both a personal and financial nightmare considering all our assets and expenses are in USA.

[geowrian 22,336]

10 minutes ago, CND1975 said:

What are our options? If 485 was in denied status, is it still considered abandonment? Is consular processing really the only option?

You can file an I-824 to have the I-130 sent to NVC, then she can complete consular processing abroad for a CR-1/IR-1 visa.

 

10 minutes ago, CND1975 said:

Is there any option to apply for AP/EAD and mail to her or continue GC app from USA and mail her the approved GC? Bios were done in 2016.

With a denied I-485, there's no basis for an AP or EAD.

 

11 minutes ago, CND1975 said:

Also, have heard about pleading case at border with CBP agent and hoping for a deferred entry.

You're free to try, but I would not count on this. She abandoned her I-485 when she left w/o AP.

[mushroomspore 3,043]

Please tell me the lawyer who told you about the GC abandonment is NOT the same lawyer who advised your wife to leave. And if it is the same lawyer, please tell me you've dumped them.

 

There's no basis for a new EAD/AP because your I-485 was denied and your wife is no longer in the US. You'll have to pursue consular. 

[Crazy Cat 39,388]

If she abandoned her AOS, she can not apply for EAD/AP now.  If her AOS was denied, she can not apply for EAD/AP now.  I don't see any option other than Consular Processing.....but I defer to those with more knowledge on this subject.

 

[Crazy Cat 39,388]

Unfortunately, poor attorney advice is rampant recently.......amazing.

[CND1975 3]

Thank you missleman and mushroomspore.  Pretty much the same info I am finding out there.  Yes, that lawyer let out some important info....

 

Geowrian, thanks, I had only been looking at the K3 visa as an option and was unaware of the Cr/AR 1.  I will look into this, do you know what processing time on these is currently?

 

Also, if she were to come visit on a tourist visa, and the CBP was convinced that her ties to Canada etc would have her return, were she to change her mind and want to stay in US while I130 pending, how do you think this would affect that application or future citizenship?  Not saying that she does, just want to know the options should she decide this someday.

 

Appreciate all of your time, sincerely, CDN1975

[SusieQQQ 11,584]

4 minutes ago, CND1975 said:

 

 

Geowrian, thanks, I had only been looking at the K3 visa as an option and was unaware of the Cr/AR 1.  I will look into this, do you know what processing time on these is currently?

 

 

Am I missing something? OP is a LPR not a USC, right? So it can only be F2A?

[geowrian 22,336]

Just now, CND1975 said:

Geowrian, thanks, I had only been looking at the K3 visa as an option and was unaware of the Cr/AR 1.  I will look into this, do you know what processing time on these is currently?

K-3 is obsolete. It's still on the books, but there's > 99.9% chance it won't go through and turn into a CR-1/IR-1 anyway. Only 29 were issued all last fiscal year (versus over 100k CR-1/IR-1 visas in the same year).

 

CR-1/IR-1 timelines are typically 12-16 months right now, but the longest part is the I-130 (~6-9 months). Since you have an approved I-130 already, your timeline would just be I-824 + NVC processing + embassy processing. I'm unsure on current I-824 timelines, though, but typically they are decently shorter than I-130 processing timelines. NVC processing is typically 2-3 months.

 

You are free to apply for an expedite on the I-824 and/or NVC/embassy processing if you meet the expedite criteria (https://www.uscis.gov/forms/expedite-criteria).

 

Just now, CND1975 said:

Also, if she were to come visit on a tourist visa, and the CBP was convinced that her ties to Canada etc would have her return, were she to change her mind and want to stay in US while I130 pending, how do you think this would affect that application or future citizenship?  Not saying that she does, just want to know the options should she decide this someday.

With a very recently denied AOS application, entry with any tourist status is unlikely due to immigrant intent. She cannot enter with intent to apply for AOS. A reasonable assumption is that she would be high risk to do so.

It would have no impact on citizenship, though. Normally I would say try and hope for the best (use an airport with preclearance!), but given the history here I think she may be at risk for an expedited deportation if the CBP officer thinks she is trying to deceive them, which would add in a 5 year bar to the process (waivable, but delays the case further).

 

2 minutes ago, SusieQQQ said:

Am I missing something? OP is a LPR not a USC, right? So it can only be F2A?

Good catch! I missed that. This would fall into the F2A category, not CR-1/IR-1. It doesn't change any of the above (assuming the I-130's PD is current?), except that a K-3 is even more impossible as that's only for USCs.

[CND1975 3]

Yes, LPR is my status, I guess we do not qualify to try for the IR1 unless USC.....  Thanks SusieQQQ, any other ideas?  She literally left 2 months ago...

Edited July 9, 2018 by CND1975

[SusieQQQ 11,584]

I’m not sure if I’m misunderstanding something but the original I130 was employment based, and that’s been abandoned? So won’t they have to start from scratch with a F2A-based I130? 

[geowrian 22,336]

2 minutes ago, SusieQQQ said:

I’m not sure if I’m misunderstanding something but the original I130 was employment based, and that’s been abandoned? So won’t they have to start from scratch with a F2A-based I130? 

What's an employment-based I-130?

Edited July 9, 2018 by geowrian

[SusieQQQ 11,584]

2 minutes ago, geowrian said:

What's an employment-based I-130?

OP said ‘Here is our timeline for our employment based GC application (both applicants are Canadian entered on LIA/B):”

maybe “petition” rather than I130, I don’t know exactly the process of employment based AOS, but (again if I understand correctly) that was abandoned. Don’t they have to start from scratch now? What exactly do they carry across for her if not?

 

Edited July 9, 2018 by SusieQQQ

[geowrian 22,336]

Just now, SusieQQQ said:

OP said ‘Here is our timeline for our employment based GC application (both applicants are Canadian entered on LIA/B):”

Understood. But an I-130 only applies for a relative (family-based immigration). Maybe they meant I-140?

[SusieQQQ 11,584]

Just now, geowrian said:

Understood. But an I-130 only applies for a relative (family-based immigration). Maybe they meant I-140?

(I clarified my post with an edit)

you spoke about an existing I130, I don’t see where one could be ?

[CND1975 3]

It was based off of i140.  Thank you both.  Any advice to expedite this and get her back to USA?  She has a leg injury and will have surgery soon so unable to work for a while.  Plus she owns a business here that will be damaged by her absence.  Anything outside the box would be huge!  info pass appointment?  CBP honest plea? congressperson plea?  Appreciate the efforts!