Dad's I-130 denied. Need help!

D

dadude

Registered Users (C)
Dad's I-130 denied. Got the notice today and it says that I have thirty days to appeal the case. I've talked to two lawyers and they both have suggested that I refile everything. I filed the I-130 and I-485 together. The I-485 has also been rejected and I'll have to refile that as well. My questions are:

1) Is it really a bad idea to appeal the I-130 if I have the evidence that they're asking for? Lawyer says it can take forever.
2) Is my dad out of status now that his I-485 has been denied? Will there be deportation hearings against him?
3) Should I file the I-130 and I-485 together again or separately? If I file them separately where should I file the I-130. I live in Boston.
4) They've given me thirty days to appeal the I-130. Is it best to submit a new I-130 before or after the thirty day deadline?

Thanks much for any replies, I really do need some advice,
 
Denial reason

it was denied because of lack of Birth cert or unavailability certificate.
Am getting unavailability cert soon.

Does it matter what reason it was denied for? Someone please answer my questions if you can.
 
1) Is it really a bad idea to appeal the I-130 if I have the evidence that they're asking for? Lawyer says it can take forever.
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Could be right.
2) Is my dad out of status now that his I-485 has been denied? Will there be deportation hearings against him?
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What was his statuse before he sent I-485?
3) Should I file the I-130 and I-485 together again or separately? If I file them separately where should I file the I-130. I live in Boston.
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You file or he files?
4) They've given me thirty days to appeal the I-130. Is it best to submit a new I-130 before or after the thirty day deadline?
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You or him?
 
dadude said:
Does it matter what reason it was denied for? Someone please answer my questions if you can.
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Of course. If you don't overcome the reason for denial on a subsequent application, it will just get rejected again.

1. You have no basis for an appeal. You didn't provide the evidence they asked for (which was required for approval), therefore the petition was denied. USCIS made no error.

2. Has his I-94 expired? Then yes, he is out of status.

3. The I-130 and I-485 should be filed together.

4. I'd just file again.
 
You didn't provide the evidence they asked for (which was required for approval), therefore the petition was denied. USCIS made no error.
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That is some kind of true. However, the case was nevertheless approvable, because the relationship exists, even though not documented before USCIS.

You have no basis for an appeal.
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That is incorrect. There are two possible motions - motion to reopen and motion to reconsider. Motion to reconsider is filed when USCIS overlooked your evidence and made a wrong decision. Motion to reopen could be filed in your case when the case is approvable (you are his son) from the very beginning on the day of filing, but you did not provide evidence enough and want to provide new evidence of that fact.
 
raevsky said:
However, the case was nevertheless approvable, because the relationship exists, even though not documented before USCIS.
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The case was not approvable, since the required evidence was missing and not provided..

Motion to reopen could be filed in your case when the case is approvable (you are his son) from the very beginning on the day of filing, but you did not provide evidence enough and want to provide new evidence of that fact.
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Fair enough, but unless it's dramatically faster I don't see the advantage to doing so.
 
It is not faster. But it could bring the beneficiary in-status, while new I-485 could be not possible because he could be out-of-status.
 
raevsky said:
But it could bring the beneficiary in-status, while new I-485 could be not possible because he could be out-of-status.
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The beneficiary is the parent of a US citizen, and therefore an Immediate Relative. Whether he is in valid status at the time of I-485 filing is irrelevant.
 
dadude said:
it was denied because of lack of Birth cert or unavailability certificate.
Am getting unavailability cert soon.

Does it matter what reason it was denied for? Someone please answer my questions if you can.
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dadude ,

what exactly did you submit? dadude or anybody out there, I would like to know coz I plan on submitting an affidavid from 2 people (my mother's elder brother and elder sister) confirming her DOB and place of birth. Apart from that I also got a certified letter from Consulate of Pakistan in Boston confirming her date and place of birth. I couldn't arrange her non availabity certificate. Can she be turned down or these two documents are sufficient. I don't have much time so please respond as soon as possible. I am about mail her documents.
Thanks.
 
TheRealCanadian said:
The beneficiary is the parent of a US citizen, and therefore an Immediate Relative. Whether he is in valid status at the time of I-485 filing is irrelevant.
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Depending on the next steps included in the original rejection, he could be currently in deportation or removal proceedings.

Depending on the status of those proceedings, he may not be able to qualify for a second I-485. The deportation/removal exclusion is not waived for immediate relatives, in which case your better choice would be a motion to reopen.

I am not familiar with exactly which steps trigger this deportation/removal exclusion, but hopefully someone here can post more info that will help you make your decision.

-ML

K1 -> I-485 -> I-751 -> N-400

Now filing I-130/I-485 for parent...
DO: Santa Ana, CA
 
So, what's the best option?

So if I can get the non avail cert (the reason they rejected the I-130) what is the best option at that point?
Should I appeal with the non avail cert or should I apply a new I-130?
Anyone have any experiences with that? They charge $110 for the appeal. I honestly don't care about the money and just want the most expedient path.
 
That depends on the information you were asked for.
The age, possible inadmissabilities, e t.c.
 
You consulted attorneys; listen to their advice. They are far better qualified to advise you on the case than anyone on a web forum.
 
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