AOS sent to Consular filling after approval of EAD-Help

[kgonzalez0877 0]

Good afternoon,

 

I am helping a friend do the adjustment of status for her husband. She is a US Citizen, and he came in under the Visa Waiver from Chile. They submitted the I-130, at the time they were not aware that the AOS package could have been file along with I-130, so about two months after the submission and before final approval they sent in all the documentation for the I-485, I-765 and I-131 along with medical report and affidavit. USCIS approved and issued the EAD and Travel Document, he was able to get a social security number but has not used the travel document yet. 

 

The issue is the following: rather than being processed here in the United States under the I-485, USCIS sent the documentation over to NVC for consular processing. We have contacted NVC and explained the situation and NVC stated that only USCIS can reclaim the paperwork that was sent over to NVC. When trying to contact USCIS, they state that they will claim the paperwork from NVC to continue AOS, but instead letters are being sent from USCIS stating that the process is at NVC for processing.

 

I am not sure if there is any document that we could send to USCIS in order to request for the process to continue its course as an AOS case and not a consular filing case. If any of you could please shed some light as to what would be the best way to attack this case I would greatly appreciate it. I had thought about doing an INFOPass appointment however at this time it seems that this option is not available.

[HRQX 4,145]

1 hour ago, kgonzalez0877 said:

I am not sure if there is any document that we could send to USCIS in order to request for the process to continue its course as an AOS case and not a consular filing case. If any of you could please shed some light as to what would be the best way to attack this case I would greatly appreciate it.

I would recommend to do the consular processing. It would result in a faster green card. After AOS submission he had authorized stay allowed by the US Attorney General. Thus, the IR-1/CR-1 would be straightforward. Upon entry with the Immigrant Visa, he can work and travel abroad if he wishes: https://www.uscis.gov/i-9-central/temporary-i-551-stamps-and-mrivs

Edited June 14, 2019 by HRQX

[payxibka 10,044]

28 minutes ago, HRQX said:

I would recommend to do the consular processing. It would result in a faster green card. After AOS submission he had authorized stay allowed by the US Attorney General. Thus, the IR-1/CR-1 would be straightforward. Upon entry with the Immigrant Visa, he can work and travel abroad if he wishes: https://www.uscis.gov/i-9-central/temporary-i-551-stamps-and-mrivs

However,  upon abandonment of the i485,  does not the authorized stay period revert back to the original dates granted at entry?

[HRQX 4,145]

1 hour ago, payxibka said:

However,  upon abandonment of the i485,  does not the authorized stay period revert back to the original dates granted at entry?

Not an issue. https://fam.state.gov/fam/09FAM/09FAM030211.html#M302_11_3

Quote

b. (U) Period of Authorized Stay In General: For purposes of INA 212(a)(9)(B), unlawful presence will not accrue during a "period of authorized stay," which includes:

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(6) (U) For aliens who have properly filed an application for adjustment of status to that of a lawful permanent resident (LPR), the entire period of the pendency of the application, even if the application is subsequently denied or abandoned, provided the alien (unless seeking to adjust status under NACARA or HRIFA) did not file for adjustment "defensively" (i.e., after removal proceedings had already been initiated);

 

Edited June 14, 2019 by HRQX

[kgonzalez0877 0]

16 hours ago, HRQX said:

I would recommend to do the consular processing. It would result in a faster green card. After AOS submission he had authorized stay allowed by the US Attorney General. Thus, the IR-1/CR-1 would be straightforward. Upon entry with the Immigrant Visa, he can work and travel abroad if he wishes: https://www.uscis.gov/i-9-central/temporary-i-551-stamps-and-mrivs

 

How would it result in a faster green card? He is just awaiting the I-485 adjustment of status interview to receive his green card while still in the US. USCIS made the mistake of forwarding his paperwork to NVC for Consular Processing but he is residing in the US. My question is: IS THERE A FORM TO FILL OUT TO CORRECT THE ERROR USCIS MADE SENDING THE PAPERS TO NVC??

[geowrian 22,336]

21 minutes ago, kgonzalez0877 said:

How would it result in a faster green card? He is just awaiting the I-485 adjustment of status interview to receive his green card while still in the US. USCIS made the mistake of forwarding his paperwork to NVC for Consular Processing but he is residing in the US. My question is: IS THERE A FORM TO FILL OUT TO CORRECT THE ERROR USCIS MADE SENDING THE PAPERS TO NVC??

Your profile shows the Houston USCIS field office. The delay for an interview there is about 17-27 months. See https://egov.uscis.gov/processing-times/.

The timeline for consular processing is around 2-3 months for NVC then a few months at the embassy/consulate.

I'm not saying to do one or the other, but in all likelihood, consular processing would be faster.

 

If you want to do AOS still, contact USCIS (ask for a tier 2) so they can request the approved I-130 from NVC.

It sounds like they are already aware of this, but their system is sending messages about consular processing still because it has not been updated in the system yet. Just keep on top of it with USCIS.

If they ask you to file an I-824, I suggest pushing back. That would be useful if switching from AOS to consular processing and they did not send the approved I-130 to NVC. It's not used to have USCIS get the I-130 from NVC...that's something they are supposed to do internally when you file the I-485.

 

Keep in mind USCIS moves very slowly. Filing the forms separately (presumably marking the I-130 as consular processing instead of AOS) means they have it in their system as consular processing for a while until somebody actually looks at the case and changes it back over to AOS. Nothing moves quickly.

[HRQX 4,145]

32 minutes ago, geowrian said:

The timeline for consular processing is around 2-3 months for NVC then a few months at the embassy/consulate.

I'm not saying to do one or the other, but in all likelihood, consular processing would be faster.

Yup, that is what I thought. And the 2-3 month wait of NVC he can either do it inside or outside the US. In the few months at the embassy, he can do the medical in Chile and get the Chilean Police Certificate (and any other Police Certificates as necessary) before the interview.

 

32 minutes ago, geowrian said:

...that's something they are supposed to do internally when you file the I-485.

Upon approval of the I-130? When NBC was doing initial review of his I-485, the I-130 was still pending at differrent Service Center.

Edited June 14, 2019 by HRQX

[geowrian 22,336]

1 minute ago, HRQX said:

Yup, that is what I thought. And the 2-3 month wait of NVC he can either do it inside or outside the US. In the few months at the embassy, he can do the medical in Chile and get the Chilean Police Certificate (and any other Police Certificates as necessary) before the interview.

 

Upon approval of the I-130? When NBC was doing initial review of the I-485, the I-130 was still pending at differrent Service Center.

The approved I-130 is needed before they can adjudicate the I-485. Before that, I can't speak as to if they need it during the initial review or not, or if they can just go with an electronic record.

That's beyond anything I have any insight into, sorry.