Employment based I-485 denial ...

V

Vijaysinha

Registered Users (C)
My employment based I-485 has been declined by the local USCIS office. Based on their denial letter, it appears that the reason for denial might be because my parents have also applied for my immigration through I-130. In addition, they have informed me that the employment authorization issued to me will be revoked within 15 days of date of letter.

This family based I-130 has already been approved. My priority date through family sponsored preference #1 is already current. However, the I-485 has not been applied for.

The USCIS is asking me to leave the country within 15 days since my I-485 has been declined. I desperately need your suggestion so that I may be able to still stay in the US. Would I be able to stay in the US if my parents applied for my I-485 (adjustment of status) immediately since a Visa number is available as of December 2009?

Thank you very much.
 
USCIS does not deny I-485 simply based on your I130 approved..There is no law or rule like that if you have one petition approved then they reject others..

My I130 was approved when I was in India, after that I got my F1 visa, H1B now (with stamping)..

So there are might be some another reason for denial..

I am really confused whether your parents are eligible for the AOS or you?

If your parents are eligible for the AOS then it does not mean you can file for AOS with them ..You need wait until PD becomes current in your respective family-based category..
 
Thank you sky701 for your quick response. In fact my parents are already US citizen and the priority Date (PD) for i 130 is already current, however, my AOS is not applied for yet. During this period my company had already applied for AOS based on employment which is now denied. Over a 10 momths now I am unemployed and live with my parents since the company has lost the project .
Since my 130 is current, we shall be starting i 485 process, do you think I can stay in the country until AOS comes in for me based on I-130?
Thanks for your quick response.
 
If you had a pending family-based I-485 and they were about to approve it or have already approved it, they would have a point. But having only an approved I-130 is not a valid basis for denying your employment-based I-485. They are ABSOLUTELY wrong if that is the reason for denial, and you need to contact a lawyer immediately to file a Motion to Reopen to reinstate your I-485.

You need to get your employment-based I-485 reinstated before you file the family-based I-485, because without H or L status and without a pending I-485, you are now in the US illegally, and you need to be here legally to file a family based I-485 (unless you are filing as an Immediate Relative of a US citizen, which you are not).
 
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Can you post the exact wording of the letter (with personal details and case numbers removed, of course). It really seems strange that they would deny your EB case because of an I-130. Maybe USCIS found out about your 10 months of unemployment because your employer reported it to them or revoked the I-140.

Without a job or AC21-compliant job offer, you may have problems getting your I-485 reinstated even if you file a Motion to Reopen. So if you can't get a job soon, it might be better for you to leave the US to pursue consular processing for your family-based GC. Did your parents specify consular processing on the I-130? If not, they'll need to file I-824 to switch to CP. If you're going to leave the US, make sure you leave before it is 180 days since your I-485 denial, and before they bring you to removal proceedings. Because if you wait for either to occur, you'll face the prospect of being banned from the US for years.
 
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Thank you Jackolantern. I have included the pertinent portions of the letter:

---BEGIN LETTER---
Page 1
Upon consideration, it is ordered that your application for status as a lawful permanent resident be denied for the following reasons:

SEE ATTACHMENT

If you fail to depart from the United States, proceedings will be instituted to enforce your departure. You may renew your application for status as a permanent resident during such proceedings.

Sincerely,
xxx
Field Office Director
cc: My lawyer

Page 2
On July 19, 2007, you filed for the benefits of Section 245 of the Immigration and Nationality Act, as amended, (the Act) for lawful permanent residence. Section 245 states, in pertinent part:

(a) The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

The record reflects that you were born in (xxx, not US) on xxx, and you are the son of xxx and xxx. On Dec. 30, 2003, xxx and xxx, both legal permanent residents, each filed a separate relative visa petition on your behalf. You were initially classified as F29, unmarried son of a legal permanent resident, pursuant to Section 203(a)(2)(B) of the INA. The visa petitions were approved on Dec 7, 2006 and May 16, 2007, respectively. xxx and xxx subsequently naturalized on Aug 22, 2006 and Dec 7, 2006 respectively. As a result of their naturalization, your classification was upgraded to that of F16, unmarried son of a United States citizen, pursuant to Section 203(a)(1) of the INA.

At the time you filed the instant application for adjustments on July 19, 2007, visa numbers were available in category 203(a)(2)(B), unmarried son of a legal permanent resident, only for those applications with priority dates prior to June 8, 1998. Similarly, visa numbers were available in category 203(a)(1), unmarried son of an United States citizen, only for those applications with priority dates prior to July 1, 2001. Your priority date was Dec 30, 2003.

Based upon the foregoing facts and law and in accordance with Section 245, it has been determined that the instant application for status as permanent resident be and hereby denied.

In addition, the employment authorization previously issued to you is revoked within 15 days of the date of this denial in accordance with 8CFR 274a.14(b)(2) unless evidence is provided as to why the employment authorization should not be revoked.

ATTACHMENT TO FORM I-291
---END LETTER---

I have removed some personal details from the letter (denoted by xxx).
Once again, thank you very much for your help.
 
You applied for I-485 when your priority date was not current.
You sure your employment based I-485 was denied and not your family based one?

Vijaysinha said:
At the time you filed the instant application for adjustments on July 19, 2007, visa numbers were available in category 203(a)(2)(B), unmarried son of a legal permanent resident, only for those applications with priority dates prior to June 8, 1998. Similarly, visa numbers were available in category 203(a)(1), unmarried son of an United States citizen, only for those applications with priority dates prior to July 1, 2001. Your priority date was Dec 30, 2003.
Click to expand...
 
OP appears to be interpreting the "employment authorization" terminology to indicate it was the employment based petition. Other information seems to indicate it was the family based petition.

OP has the issue in that he is in violation of his guest worker visa which was used to file for employment based GC by not working for the last 10 months. This is also an issue that cannot be hidden from the USCIS.

OP, see a lawyer to see if there is any way to salvage your situation. You appear to have significant issues.
 
At the time you filed the instant application for adjustments on July 19, 2007, visa numbers were available in category 203(a)(2)(B), unmarried son of a legal permanent resident, only for those applications with priority dates prior to June 8, 1998.
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Did you file I-485 for the employment case in July 2007? If that is the case, then the reason for denial is not the mere fact that you have an approved I-130, it is that they looked at the pending I-485 and mistakenly thought it was filed for your family-based petition. Your family-based priority date was not current when that I-485 was filed, so they noticed that fact and denied the I-485, instead of looking more closely at the I-485 to realize it is employment-based.

Even though this denial is in error, your lack of a job or job offer means you don't really qualify to have your I-485 reinstated. So I would suggest leaving the US and switching to consular processing based on the petition your parents have filed.
 
Jackolantern said:
Even though this denial is in error, your lack of a job or job offer means you don't really qualify to have your I-485 reinstated.
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Yes, he does. USCIS denied the I-485 in error, and that's the only grounds required to reopen the I-485. If they wish to question his lack of employment, they need to issue an NOID and give hi 30 days to provide proof of eligibility under AC21.
 
TheRealCanadian said:
Yes, he does. USCIS denied the I-485 in error, and that's the only grounds required to reopen the I-485. If they wish to question his lack of employment, they need to issue an NOID and give hi 30 days to provide proof of eligibility under AC21.
Click to expand...

He technically can get it reopened as a result of USCIS's lack of knowledge of his job situation, but he still does not qualify to get it approved once USCIS knows all the facts. That's why I used the word "really". At this time he does not meet the requirements to have his I-485 favorably adjudicated.
 
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Jackolantern said:
He technically can get it reopened as a result of USCIS's lack of knowledge of his job situation, but he still does not qualify to get it approved once USCIS knows all the facts. That's why I used the word "really". At this time he does not meet the requirements to have his I-485 favorably adjudicated.
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That is true, but getting the I-485 reopened means he can buy himself time until the consular interview, without having the illegal presence clock ticking.
 
Vijaysinha said:
Thank you very much for all your responses. Please tell me how to get the I-485 reopened.
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File a Motion to Reopen ASAP, pointing out their mistake of treating your employment-based I-485 as if it were linked to your family-based petition. Get a lawyer to assist you.
 
Also, if he files an MTR for this employment based 485, and it's accepted - wouldn't that make his current stay in the US LEGAL? I mean, even though they will later deny the employment based 485, until they do that - his won't be accruing overstay. So, while his stay his legal, if he files for 485 based on his family petition - he should be able to stay in the US until he gets his green card. Any comment?
 
VisaNutz said:
Also, if he files an MTR for this employment based 485, and it's accepted - wouldn't that make his current stay in the US LEGAL?
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Yes, that was TheRealCanadian's point in post #13.
I mean, even though they will later deny the employment based 485, until they do that - his won't be accruing overstay. So, while his stay his legal, if he files for 485 based on his family petition - he should be able to stay in the US until he gets his green card.
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I believe that's technically correct, but I still think consular processing would be safer. If USCIS wants to get anal about it, they later could claim the reopened I-485 was frivolous because he had no qualifying job or job offer when it was reopened and did not disclose that fact when filing the MTR. Then by extension, they could say he was not staying in the US legally when he filed the family-based I-485.

He also does not know if the MTR will be accepted in the first place. They could RFE him for employment information, and then reject the MTR for failure to provide that information. He should take steps towards consular processing while the MTR is in process.
 
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Jackolantern said:
I believe that's technically correct, but I still think consular processing would be safer. If USCIS wants to get anal about it, they later could claim the reopened I-485 was frivolous because he had no qualifying job or job offer when it was reopened and did not disclose that fact when filing the MTR. Then by extension, they could say he was not staying in the US legally when he filed the family-based I-485.
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All discussion of the frivolity of the MTR aside, if he has been working using an EAD and has no valid non-immigrant status, he cannot file an FB I-485. While he'd be legally present, FB I-485s require valid non-immigrant status, which a pending I-485 is not.
 
Once again, thank you very much for all your responses and advice. Based on your advice, I contacted my lawyer, and suggested that we file a motion to reopen based on the USCIS error. She doesn't seem to agree. Here is what she said:

---Begin Quote---
The I-485 could not be approved based on the I-140 since the employer had withdrawn the job offer. The reason the denial mentions the priority dates for family-based visa numbers is because that would have been the only way left for the the I-485 to be approved. If the priority date for your approved I-130 had been current at the time the I-485 was filed, USCIS would have transferred and approved the I-485 based on the I-130 instead of the I-140. Since the priority date for the I-130 was not current at the time the I-485 was filed, they were unable to do so and therefore had no choice but to deny the I-485.
---End Quote---

Even though my lawyer has said in her statement, that the employer has withdrawn the job offer, this may not be necessarily correct. My employer (a consulting company) ended my employment because the client couldn't get the budget approved for the project I was working on.

Do you think my lawyer is correct? Should I give up on the motion or should I seek advice elsewhere?
Thank you very much.
 
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Your employment based I-485 is based on future job position, because of current market conditions employer cannot place you on payroll right now, but since this is future job position, if your employer is willing to sponsor or give a job letter/promise to place on payroll subject to approval of I-485, you can file MTR
 
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