Be Aware of Abandonment of COS and AOS Applications
Applicants for Change of Status (COS) or Adjustment of Status (AOS) should be aware that certain actions taken during the period that their applications are pending may lead USCIS to believe that they have abandoned their applications. These activities include travel outside of the United States, failure to respond to USCIS requests for evidence (RFE), failure to appear for scheduled interviews, and failure to appear for fingerprints/biometrics etc. Once the COS application is “abandoned,” even if the COS petition is approved later, the new I-94 issued with the approval will be invalid. The petitioner will still keep his/her original status from before the application, or will be out of status if the original status prior to the application has expired.
If a petitioner abandons an application, he/she can still apply for a visa at a US consulate abroad or apply for change of status again if his/her original status has not expired. For AOS applications, once the application is abandoned for any reason, the alien’s application will be denied.
Travel out of the United States
Applicants should be aware that during the Change of Status (COS) or Adjustment of Status (AOS) process, the applicants are considered to have abandoned their applications if they leave the U.S (including brief visits to Mexico or Canada). It is advised that petitioners for Change of Status remain in the US while their application is pending.
For example, in a change of status situation from an F-1 to an H-1, Tony, an F-1 student, will be deemed to have abandoned his H-1 application if he departs the US while his H-1 application is still pending. However, Tony can still apply for an H-1 visa at a US Consulate to re-enter the US after his H-1B application is approved by the USCIS.
In adjustment of status situations, the application for AOS will be denied if the applicant departs the US, except in the following two situations:
Exceptions to Adjustment of Status Abandonment
First, an application for AOS is not considered abandoned if the applicant uses Advanced Parole to travel outside of the U.S. Advance Parole may be granted for any personal or business reason. For example, Sam has a pending Adjustment of Status case, obtains Advance Parole, and travels abroad. Sam is able to re-enter US with his Advance Parole and preserve his AOS application.
Second, an H or L status holder who travels outside the U.S. during Adjustment of Status proceedings without seeking Advance Parole is not deemed to have abandoned the AOS application if all of the following conditions are met:
He/she is in possession of a valid H or L status before traveling abroad;
He/she comes back to the US with a valid H-1 or L-1 visa; and
Please note that in such situation, the alien needs to have a valid H-1B or L-1 visa or apply for an H-1 or L-1 visa at a US Consulate abroad.
For example, Mr. Gupta is a valid H-1B visa holder and is going to India. He does not apply for Advance Parole before his departure. Mr. Gupta applies for his H-1B visa at a US Consulate in India and returns to the US with the H-1B visa. If Mr. Gupta works for his H-1B sponsoring employer, his I-485 application is preserved and he keeps his H-1B status.
Failure to Respond
Applicants should be aware that inaction may also lead to abandonment of their application for COS or AOS.
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, there is a list of situations where the inaction of the applicant leads to USCIS’ denial of AOS.
The AOS applicant is required to either appear for fingerprinting or submit fingerprints within 120 days from 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 the applicant has not requested that he/she be rescheduled for a fingerprint appointment, the AOS application will be denied for abandonment. If the applicant’s failure to appear for the scheduled fingerprint is due to a change of address, the AOS application will be denied for abandonment if the applicant has not advised the USCIS of his/her change of address via an AR-11 form.
An AOS applicant has 87 days to respond to a USCIS RFE. If the applicant does not respond within 87 days, the application is considered abandoned and will be denied.
When an AOS applicant fails to submit the $25 fingerprint fee, the application for AOS is considered abandoned and will be denied.
When the 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 application will be considered abandoned. Likewise, if the applicant does not file notification of a change of address and failure to appear for the interview is due to change of address, the applicant’s AOS application is considered abandoned and will be denied.
In sum, a COS or AOS applicant should consult an immigration attorney regarding any of his/her decisions to act or not act during the pending period of the application to ensure that the application is not jeopardized.
Electronic Code of Federal Regulations: 8 CFR § 1245.2(a)(4)(ii)(A)-(C)
(Updated 10/11/2012 by AD)
For more information on Advance Parole, please click on the following links: