April 6, 2009: Adjustment of Status Application Abandoned by Departure?
Adjustment of Status Application Abandoned by Departure?
I am from Brazil. I got married to an American citizen and we filed AOS along with I-130 and work permit in April 2006, the same year we got married. Due to some personal problems, I had to go back to Brazil while my application was being processed. I did not get advance parole and I am still in Brazil. Now I want to move to the United States permanently. What do I have to do to get to the United States? Do I have to start over again? When I checked my case online, AOS was pending and petition for alien relative was approved on April 2007
Depending on whether you were out of status and had accrued 180 days of unlawful presence in the United States before you departed, you may be subject to the three year bar (10 years if more than one year of unlawful presence) from re-entering the United States. Generally speaking, if an individual with a pending Form I-485, Application to Register Permanent Residence or Adjust Status departs the United States while that application is pending, the United States Citizenship and Immigration Service (USCIS) deems that application abandoned. However, the Applicant, by filing Form I-131, Application for Travel Document, may request an advance parole document. If the Form I-131 is approved, the Applicant may travel outside the United States with the advance parole document while the adjustment of status application is pending without abandoning the Application.
The Applicant may be temporarily paroled into the United States upon the conclusion of the trip without negatively effecting the adjustment of status application. Since you did not obtain an advance parole document, it appears that you abandoned your adjustment of status application. It is important to realize that only the I-485 application is abandoned, not the I-130 petition your husband filed on your behalf. Thus, the good news is you can still use the approved I-130 petition to immigrate to the United States. So, if you are still married to your husband and assuming you are not subject to the three or ten year bars mentioned above, an option for you may be to consular process through the U.S. Embassy in Brazil based on the I-130 approval. To get on this track, you will need to notify the National Visa Center (NVC) that you wish to consular process and send it a copy of the I-130 approval notice. It will then notify you of the fee bills, the Forms DS-230 Parts I and II and Affidavit of Support, and request that you provide the required supporting documents. Because this can be a confusing process and there may be some other issues that have not been discussed in this response, it would be wise for you to consult with an experienced immigration attorney who has extensive knowledge in this area of immigration law.
Michael Shane and Evan Shane, Immigration Attorneys