I filed I - 130 ( application to adjust status ) for my wife and when we responded to appointment for interview , they found she was in violation of the foreign residency requirement law . We were advised to either withdraw the application all together or it will be simply denied by the officer . We chose to withdraw . If the petition / application was withdrawn , was my affidavit of support automatically withdrawn also ? If not what , what should I do to withdraw it ? I had called the LUSCIOUS and they told me that only the applicant can inquire about the status of affidavit of support because that is her file . What should I do to withdraw it ?
If you read Form I-864 on Page 8, it explains clearly that the I-864 is a binding contract if, and only if, the intending immigrant becomes a permanent resident.
Because you have withdrawn the I-485, the intending immigrant is NOT becoming a U.S. Citizen. Therefore, the I-864 contract is null and void. You don't need to withdraw it, because it's rendered void by the withdrawal of the I-485.
If the I-485 application to adjust status (NOT the I-130--that's the immigrant relative petition) was withdrawn, then there is no application on which to base enforcement of the affidavit.
Residency requirements (the two year return requirement) apply only to some J visa holders, but not all, and the requirement can be waived under certain circumstances. Check with a lawyer to see what the your wife's situation is as LUSCIOUS (thank you for the laugh!) doesn't always get it right and doesn't alway give good--or even accurate advice.
In addition to the responses provided by other attorneys, note that the need to withdraw the I-130/I-485 application package or risk denial could have been avoided had your family been represented by an immigration attorney. An attorney would have addressed the issue from the outset to determine whether a need to return abroad - application to some J-1 visas - actually applied and if so, whether it could be waived, prior to filing the case.
Regarding the Affidavit of Support itself, it becomes part of a binding contractual arrangement between the U.S. government and the affiant when the government relies upon it in approving an adjustment of status case; where the adjustment of status application has been withdrawn, the potential contract is never consummated.
[Note: Consistent with Avvo policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]
David N. Soloway
Frazier, Soloway & Kennedy, P.C.
1800 Century Place, Suite 100
Atlanta, Georgia 30345 www.fspklaw.com
404-320-7000 * 1-877-232-5352 * firstname.lastname@example.org
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