CIS denied my daughter's "Motion to Reconsider" ...

[hvmedhaj]

Hi,

Could you please let us know whats the outcome of this case?

Thanks,
hvm

that means she cannot enter US by her A/P? My lawyer told me that the denial decision on her I-485 should not be final until 33 days pass if we don't file appeal... thanks to confirm....



thank you Jack.... hope my daughter's case is not the first in US history... and pray to God that I could find similar cases....

not sure if it is a good idea/doable in going to AAO for this kind of inquiry too...

[Jackolantern]

Lianlian hasn't posted anything in the forum since her last posting to this thread.

I know you're concerned about her daughter's case because of the similarity to your situation, but unfortunately it looks like she'll never return to give an update.

[Punter]

Lianlian hasn't posted anything in the forum since her last posting to this thread.

I know you're concerned about her daughter's case because of the similarity to your situation, but unfortunately it looks like she'll never return to give an update.

Someone we know is in similar enigma. Worse, in his case- derivative filed for AOS same time as principal and other derivatives in 2003 (EB3). Principal incl. other derivatives adjusted in late 2004/early 2005, and naturalized in 2010. Administrative delays (name-check, file separation, file transfer), and priority date retrogression plagued their case (and plenty of other equitable conditions).

However, during naturalization principal checked with every resource possible- congressional, legal and USCIS themselves and everyone agreed CSPA should protect the derivative even though they can't help with priority date. Every option was exhausted as the derivatives adjustment was the main focus.

Now as PD became current again, congressional resource trying to help was notified that case may be denied due to a similar reason identified in earlier post. It has been a nightmare after 9 years and now just escalates to further levels especially for something which is not even identified in INA and listed in FAM (a resource non-binding on USCIS). Several questions remain from this reference,

1. Difference between adjustment through EB3 in US vs. immigration as PR in consular processes
2. Legal basis of FAM references on USCIS
3. Is pending derivative FTJ or accompanying if i-485 is filed at the same time
4. In Family based immigration CSPA explicitly protects moving from greencard to citizen sponsorship and allows for retention of priority dates, and in cases where the FAM guidelines applies it is beneficial for applicant. Taken "out of context" allows little room for employment based derivatives in limbo
5. Is there a chance that this can be fought in the courts, or is there no alternative to this potentially incorrect interpretation immunized by discretionary powers afforded.
6. Also, notice that the date on this guideline is 9/3/08- does this apply if the filing date is earlier than 2008?

Hope there is help on this. Understandably, this situation was never imagined by congress and is also made worse by the cross-reference to FAM in a employment based adjustment case. If anyone has any suggestions, help is greatly appreciated.

Here is the FAM reference-
9 FAM 40.1 N7.2-4 Effect of Principal Alien's Naturalization on Derivative Status

(CT:VISA-1000; 09-03-2008)

A “following to join” derivative must immigrate to the United States prior to any naturalization as a U.S. citizen. If the alien fails to immigrate prior to any naturalization the citizen must file an immediate relative petition for the family members.

[Jackolantern]

However, during naturalization principal checked with every resource possible- congressional, legal and USCIS themselves and everyone agreed CSPA should protect the derivative even though they can't help with priority date. Every option was exhausted as the derivatives adjustment was the main focus.

Perhaps the wrong question was being asked. It's not really a CSPA issue, it's an issue of whether naturalization terminates the derivative's ability to adjust status. The same issue could cause I-485 denial for a case where CSPA is irrelevant because the child is still under 21. Granted, it's less of a problem there because it can be remedied by filing an immediate relative I-130 and a new I-485, but it still adds time and money, and the delay in getting the green card could have other consequences such as causing the child to lose eligibility to derive citizenship under the Child Citizenship Act.

5. Is there a chance that this can be fought in the courts, or is there no alternative to this potentially incorrect interpretation immunized by discretionary powers afforded.

If the I-485 is denied, and the Motion to Reopen or Reconsider fails, then yes it can be taken to court. But who knows what the court will decide. However, at least if there is a court case it can be brought to the attention of Congress who may be persuaded to amend the legislation to ensure continued eligibility for pending derivatives after the naturalization of the primary.

6. Also, notice that the date on this guideline is 9/3/08- does this apply if the filing date is earlier than 2008?

Yes, if the guideline or regulation is based on a law that was passed before 2008.

[hvmedhaj]

Was there any update on this case ???? Please let me know

Thanks,