I-485 marriage based denied..possibility to reapply? please help...

[thaiangle]

Hi everyone,

I was a student until Dec 05. I got married and applied for AOS Dec 6, 05. My I130 was approved but I-485 was denied on March 2, 06. I was told that if the AOS is denied, USCIS count that I'm out of status since when my original visa expired, which means now I'm out of status for about 3 months. Anyway, I'm thinking to reapply. My questions are:

1. What is the possibility of doing that? Can I repply in the U.S. or do I have to leave and repply from my country?

2. If I can reapply in the U.S., would the new application process take faster since I aleady have I-130 approved?

Please help....

[cherr1980]

You are not saying the whole issue here, in what grounds your case was denied? you got married to whom? USC or GC holder? You are student with what type of visa: F or J?

Please clarify,
Cherr

[thaiangle]

You are not saying the whole issue here, in what grounds your case was denied? you got married to whom? USC or GC holder? You are student with what type of visa: F or J?

Please clarify,
Cherr

I originally came to the U.S. under J (au pair--nanny) in June 2000- July 2001. After the program, I changed my visa to F (Aug 2001-Dec 2005). I got married and tried to adjust status on mid Dec 2005. My AOS was denied because USCIS saw that I'm subject to 2 years HRR. It said on my passport eventhough my IAP-66 didn't say anything. So, they said that I had to leave complete the 2 years HRR or get a waiver. However, I strongly beleive that the 2 years HRR was given to my by mistake because I didn't get any fund from government as being an au pair, nor au pair (nanny) is in the skill list that my country would require me to go back. Plus, it's evident that other au pair from my country are not subject for 2 years HRR.

This is a little bit confusing because at this point I do thing backward. I should have applied for waiver or get advisory opinion before I adjust the status. Anyway, because of wrong info and lack of knowledge, I applied for AOS without the waiver. That's why my AOS was denied.

After my AOS was denied, I bagan to request for advisory opinion to have DOS indentify whether I'm really subject. I beleive that I am not, but I need confirmation from DOS in writing to confront USCIS. I submitted the request on Feb 24 but it didn't get into the system until March 22....and I don't think that I'll get the result by the end of this month, which is the deadline that I can do motion to reopen. So, my only choice after I get the result (and let's say that I'm not subject to the 2 years rule) is to reapply. However, because I'm out of status now, I'm wondering if I can reapply in the U.S. or if I still have to go home and do it from there.

I've heard that if I'm being out of status not more than 180 days, I can still reapply in the U.S. Is it true?

Thank you for your help.

[thaiangle]

Oh...and my husband is a US citizen.

[eric v]

the 180 days applys to the travel warning w/ avance parole

[marion_etka]

I also came here as an Au Pair in 2002, but I was not subject to HRR. Actually, during my interview in January, the officer mentioned something that I was one of the lucky ones (Au Pairs in this case) who did not have that type of limitation put on me. He also said something that I barely made it.I actually remember when my husband and I first started talking about getting married and in order to get some information on how to proceed regarding my immigration situation, my husband went to see a lawyer. He told my husband that I had the HRR, without even seeing my visa or anything. We even started making plans about moving to my home country for 2 years But anyway... I do not think I helped you, but maybe you can find a very good lawyer who will be able to straighten things out. Good Luck!!!

[thaiangle]

the 180 days applys to the travel warning w/ avance parole

So, that means I can reapply, right? I don't have any plan to leave the country until everything is taken care of. I'm just nervous because I see in the instruction page that you are not eligible for AOS if you are overstay.

[patty579]

So, that means I can reapply, right? I don't have any plan to leave the country until everything is taken care of. I'm just nervous because I see in the instruction page that you are not eligible for AOS if you are overstay.

Since you are married to a USC, your overstay will be forgiven. So I think that shouldn't matter.
Good luck!

[cherr1980]

It is my understanding that Motion to Reopen (MTR) is different than reapply.

Do you have a lawyer?

[thaiangle]

It is my understanding that Motion to Reopen (MTR) is different than reapply.

Do you have a lawyer?

I have a lawyer who doesn't do much. If I do MTR, I have to do within 30 days of the denial. But in my case, my lawyer said that I can't. This is because we don't have more paper work to hand in until we get advisory opinion from DOS, which of course, would take more than 30 days. So, I guess I can't do MTR but reapply. ...which is fine, but that means I have to start thing all over again.

[thaiangle]

Since you are married to a USC, your overstay will be forgiven. So I think that shouldn't matter.
Good luck!

Can you or anyone help me with this?

Since my previous I-485 got denied and now I'm out of status, what should I say for these question???

1. Current USCIS Status:

2. Have you ever before applied for permanent resident status in the U.S.? (Yes for my case).....Give date and place of filing and final disposition.........
(should I say that I was denied because of 2 years HRR?...I'm afraid that if I say this they would denied my application right away even before they forward it to the local office.)

Last of all, since reapplying take such a long time, do you think that I can reapply now without the result from DOS? I expect it to come within about 2 weeks anyway. I just don't want to lose time.

Thank you so much.

[akatu]

What you can do before you reapply for 485.

Find a good lawer that would apply for motion to reconsider your old approved J1 to remove 2 year requirement with all nessecery explanations and documentation, it take only several weeks for decision on that kind of case and i know from the past that it was favorable on several occasions.

[thaiangle]

What you can do before you reapply for 485.

Find a good lawer that would apply for motion to reconsider your old approved J1 to remove 2 year requirement with all nessecery explanations and documentation, it take only several weeks for decision on that kind of case and i know from the past that it was favorable on several occasions.

Thank you AKATU for your response. Are you saying that I should still try to do MTR when I have the right document? .... even though it's after 30 days of the denial?

[patty579]

Can you or anyone help me with this?

Since my previous I-485 got denied and now I'm out of status, what should I say for these question???

1. Current USCIS Status:

2. Have you ever before applied for permanent resident status in the U.S.? (Yes for my case).....Give date and place of filing and final disposition.........
(should I say that I was denied because of 2 years HRR?...I'm afraid that if I say this they would denied my application right away even before they forward it to the local office.)

Last of all, since reapplying take such a long time, do you think that I can reapply now without the result from DOS? I expect it to come within about 2 weeks anyway. I just don't want to lose time.

Thank you so much.

Thaiangle,

I'm not sure, I don't know much about your questions. I would suggest that you find yourself a better and more helpful lawyer. There must be a way for you to succeed with your re-application.

1. Probably the last type of visa that you had, which is F.
I would write: F (out of status)

2. Do you have to give a reason for the denial?

I wish I could help you more. As I said, find a lawyer that is more experienced with your kind of problem.

All best!

[mthakkar]

I think instead of re-applying, just apply for MTR with the document that you are getting response from DoS. Supply the response from DOS as you as you get it.

Definitely push your lawyer to do something. What does he get paid for? Get a second opinion from another lawyer.

[baltimore2006]

you definitely need a better lawyer. and you shouldn't leave the country until the issue is fixed.

BTW, should you get the waiver before changing to a different visa from J? my friends had to get the waiver before they got F or H visa.

[thaiangle]

I think instead of re-applying, just apply for MTR with the document that you are getting response from DoS. Supply the response from DOS as you as you get it.

Definitely push your lawyer to do something. What does he get paid for? Get a second opinion from another lawyer.

I was thinking the same thing. But if I do MTR, it would be more than 30 days. And I'm afraid that they can simply deny MTR because of untimely file. Anybody have done MTR after 30 days?

[thaiangle]

you definitely need a better lawyer. and you shouldn't leave the country until the issue is fixed.

BTW, should you get the waiver before changing to a different visa from J? my friends had to get the waiver before they got F or H visa.

U need to get waiver before you change to immigrant visa or work visa. There's no requirement to get waiver if u want to change to F. That's why I had no problem getting F after J. But now I do because I'm applying for GC.

[arranger]

if 30 days has elapsed, then yes, in my experience your motion will be denied as untimely filed. there is no reason why this should have any adverse effect on future filings, though. it seems there is no harm in MTR attempt. you will likely be granted your waiver, it is just a matter of getting the opinion and submitting it and so on. again, no need to wait to have letter in hand. reapply now. CSs are familiar with your situation.

[akatu]

Thank you AKATU for your response. Are you saying that I should still try to do MTR when I have the right document? .... even though it's after 30 days of the denial?

I meant to file MTR not for AOS but for J1. Basically you can do both.

In the cases I mentioned lawyer used this venue: filed MTR to correct an error 1 year after original approval of J1. I believe I-824 also could be filed.
you do not have to file for waiver because 2 yr requirement was marked erroneously, just suppliment with suffucient documentation showing that you did not fall under that restriction at the time of application for J1.

You can wait for decision and re-apply for AOS also.

[thaiangle]

if 30 days has elapsed, then yes, in my experience your motion will be denied as untimely filed. there is no reason why this should have any adverse effect on future filings, though. it seems there is no harm in MTR attempt. you will likely be granted your waiver, it is just a matter of getting the opinion and submitting it and so on. again, no need to wait to have letter in hand. reapply now. CSs are familiar with your situation.

Thank you for your response. My 30 days to file MTR is over now, but another lawyer that I talked to said that maybe we could still file and explain the reason why we can't file MTR within 30 days. And if "they are nice", they might let us do it. I'm not confident about that avenue that much as I know that USCIS is pretty strict about the time line. In that case then I will lose more money and time. Do you happen to know anyone who file MTR after 30 days? Should I still try to do MTR or just reapply?

[thaiangle]

I meant to file MTR not for AOS but for J1. Basically you can do both.

In the cases I mentioned lawyer used this venue: filed MTR to correct an error 1 year after original approval of J1. I believe I-824 also could be filed.
you do not have to file for waiver because 2 yr requirement was marked erroneously, just suppliment with suffucient documentation showing that you did not fall under that restriction at the time of application for J1.

You can wait for decision and re-apply for AOS also.

Yes I did go for that. I'm in the middle of the process to fix the problem with my J. I anticipate that the result will be out by the end of April and it would say that I'm not subject. Then I'm still debating whether I should still force to do MTR for AOS even though it's after 30 days or I should just simply reapply. What do you think?

[arranger]

certainly no harm in attempting the MTR. yes, i have seen numerous cases in which MTR was accepted despite being slightly beyond 30 days. it is a question of workload for the adjudicators. usually, it appears easier/faster for them to deny MTR if they have sound basis. the pressure for them is to move it along. however, they also understand that you are still seeking to reapply anyway, and they are aware that you will likely be approved. so, good DD's often initiate this policy-- keep the backlog down. the MTR need not be a big deal. you can write it yourself. be clear and brief. explain WHY you missed the deadline. there are always these exceptions. get it in the mail now, then work on reapplying. as i said, the waiver will be recognized, it is not that unusual for Js. you will get there. good luck.

[ndc121]

When you went from J to F, did you leave the country and get an F visa stamp?

[thaiangle]

When you went from J to F, did you leave the country and get an F visa stamp?

Yes, I leaf the country. My J ended in June 2001. I went home and applied for F with I-20 I got from school. I didn't have any interview. They gave me 5 years. Then I came back in August.

[thaiangle]

certainly no harm in attempting the MTR. yes, i have seen numerous cases in which MTR was accepted despite being slightly beyond 30 days. it is a question of workload for the adjudicators. usually, it appears easier/faster for them to deny MTR if they have sound basis. the pressure for them is to move it along. however, they also understand that you are still seeking to reapply anyway, and they are aware that you will likely be approved. so, good DD's often initiate this policy-- keep the backlog down. the MTR need not be a big deal. you can write it yourself. be clear and brief. explain WHY you missed the deadline. there are always these exceptions. get it in the mail now, then work on reapplying. as i said, the waiver will be recognized, it is not that unusual for Js. you will get there. good luck.

My result comes out today and I'm not subject. Hoorayyyy I'm so happy. But now I've to figure out what to do since my 30 days to file motion to reopen for for them to reconsider my case is over. Anyway, I agree with u. It's only less a week after the 30 days and I do believe that they might give me a break. Too bad I'm stuck on the weekend. But maybe if I get the mail out by tomorrow (Sat) and do over night, they'll receive it on Mon. Many thanks for your response....I'll keep u and everyone updated.

[akatu]

Yuo should go for MTR and state that there is a new evidence in your case thatr was not availble prior. If they deny, sue them in Federal court.

[cooliopepse]

i got married to usc and i applied for my papers < everything required was provided i mean everything) . ok , now i applied on febuary9th 2006 and i still havent received my work permit or n e kind of communication from INS ... could n e one know what i should be expecting and when and if n e one can throw on some more light on it .. will appreciate their effort
thanks .!

[thaiangle]

Yuo should go for MTR and state that there is a new evidence in your case thatr was not availble prior. If they deny, sue them in Federal court.

How can I do that? Is it o.k. for me to fight back if they deny my MTR because of untimely filed?

[thaiangle]

i got married to usc and i applied for my papers < everything required was provided i mean everything) . ok , now i applied on febuary9th 2006 and i still havent received my work permit or n e kind of communication from INS ... could n e one know what i should be expecting and when and if n e one can throw on some more light on it .. will appreciate their effort
thanks .!

You should at least hear from them within 4-6 weeks after u filed your paper work. U should contact customer service at 18003755283 and inquire them.