Memo: Be Aware of Abandonment
When aliens apply for a change of status (COS) or adjustment of status (AOS), certain actions they take while their applications are pending may lead U.S. Citizenship and Immigration Services (USCIS) to conclude that they have “abandoned” their applications. Such activities include travel outside of the United States in certain contexts, failure to respond to USCIS requests for additional evidence (RFEs), failure to appear for scheduled interviews, and failure to appear for biometrics processing, among others.
Once a COS application is abandoned, even if it is later approved, the I-94 issued with the approval will be invalid. In such an event, the petitioner would retain the status she had before submitting the application if said status is still valid, or otherwise be out of status if the original status has expired. Aliens outside the U.S. can still apply for a visa at a consulate or re-apply for a COS.
For AOS applications, once the application is considered abandoned, irrespective of the reason why, it will be denied.
Traveling Abroad
If aliens leave the U.S., even for brief weekend trips to, say, Canada or Mexico, during the COS or AOS process, they are considered to have abandoned their applications.
To illustrate the importance of remaining in the U.S. while these applications are still pending, consider the following hypothetical examples.
Background
Hubbardio, an F-1 computer science student at the University of Washington, recently applied for a change of status to H-1. While his H-1 application is pending, Hubbardio and his pals decide to travel to Vancouver for Pride Weekend.
Will Hubbardio’s COS be preserved?
No. USCIS will consider Hubbardio’s H-1 application abandoned. Hopefully he enjoyed his short 48-hour excursion to Vancouver, because Hubbardio does have the option of applying for an H-1 visa at a U.S. consulate there (or elsewhere abroad) to re-enter the U.S., provided his H-1B application was initially approved.
In AOS situations, the I-485 will be denied if the applicant departs the U.S., except in the following two situations:
The applicant uses advance parole to travel abroad.
Advance parole can be granted for any personal or business reason.
The applicant does not use advance parole to travel abroad, but three conditions are met.
An H or L holder who travels outside the U.S. during AOS proceedings without seeking advance parole is not deemed to have abandoned the I-485 application if each of the three following conditions is met:
-
The alien possessed valid H or L status before traveling abroad;
-
The alien returned to the U.S. with a valid H-1 or L-1 visa; and
-
The alien resumes employment with the same employer for whom H or L status was issued prior to departure from the U.S.
Consider the following example.
Background
Carmen Sandiego is an H-1B holder who has just traveled outside the United States to an undisclosed location somewhere in the world. Recently, Carmen filed an I-485 petition. Prior to this trip, she did not apply for advance parole. Carmen will apply for an H-1B visa at a U.S. consulate in an unknown country and return to the U.S. using said visa.
Will Carmen’s I-485 application be preserved?
If Carmen continues to work for her H-1B sponsoring employer upon her return to the U.S., her AOS application is preserved, and she will retain her H-1B status. USCIS will not consider her application abandoned.
Failure to Respond
Applicants should also be aware that inaction may lead to abandonment of their COS or AOS applications.
For COS applications, a petitioner’s failure to respond to a request for evidence will lead to a denial of the application.
For AOS applications, USCIS will deny the I-485 petition on the basis of inaction in the following situations.
- Failure to appear for a biometrics appointment
-
The AOS applicant is required to either appear for fingerprinting or to submit fingerprints within 120 days of the date of their scheduled fingerprint appointment. If the applicant fails to appear for the scheduled fingerprint or fails to submit fingerprints within the allotted time, and has not requested a rescheduling, the AOS application will be denied for abandonment.
- If the applicant’s failure to appear for the scheduled fingerprinting is due to a change of address, the AOS application will be denied for abandonment if the applicant has not advised USCIS of his or her change of address via Form AR-11.
- Failure to pay biometrics fee
-When an AOS applicant fails to submit the $85 biometrics fee, the application for AOS is considered abandoned and will be denied.
- Failure to respond to an RFE
- An AOS applicant has 84 days to respond to an adjudicating officer’s RFE. If the applicant does not respond within this period of time, the application is considered abandoned and will be denied.
- Failure to appear for a scheduled interview
- If an AOS applicant fails to appear for a scheduled interview and USCIS does not receive a request by the applicant for rescheduling by the date of interview, the I-485 petition will be considered abandoned.
-Likewise, if the applicant has failed to notify USCIS of a change of address, and failure to appear for the interview stemmed from an address change, the applicant’s AOS application will be considered abandoned and thereafter denied.
To ensure their applications are not considered abandoned, COS and AOS applicants should consult experienced immigration attorneys regarding any decision to act (or not act) during the pending periods.
To review the statutory text consulted in this article in full, refer to 8 CFR §1245.2(a)(4)(ii)(A)-(C). And for more information on how to apply for an adjustment of status, start your search here.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
Updated 05/08/2017