I-485 denied because of new legislation

[not_ya_wify]

Hello my name is Paula and the following thing happened to us.

On 15 February 2010 I came from Germany to the USA on a Visa Waiver to visit my boyfriend during my Semester break. I planned to stay only for a month until school starts but on my birthday my boyfriend proposed to me, because he didn't want me to leave and we got married the next day (10 March 2010). We called USCIS and asked what we were supposed to do to apply for a Greencard and if I can stay even though my Visa Waiver is only good for 3 months. They told us that as long as I entered the country legally (which I did), all we have to do is file I-485 in a package and that I am allowed to stay 3 months after my Visa Waiver expires on May 14. Then I exmatriculated from college. We started filling out the stuff and had a few questions, so we called USCIS again and this time a different person was on the phone who told us they weren't allowed to answer us any questions. This seemed really weird to me and I was concerned if it is really true that I can stay 3 more months after my Waiver expired so my husband called USCIS again at the end of April or beginning of May and asked exactly how long I can stay with my Visa Waiver. My husband made sure to get the right information and the guy even read out the legislation from a book. He said again that I am allowed to stay and file withing 3 months after my Visa Waiver expires.
So we filed my i-485 on 23 July 2010. They approved first my advanced parole and then my employment authorization, so I was confident enough to cancel my appartment in Germany and anything else. That was in October. We had an appointment for fingerprints and then an interview at the end of November after which our I-130 was approved.

4 days ago we received a letter indicating our denial of my I-485 on 30 December 2010. The letter said the denial was based on my overstay and that I am not allowed to appeal but I have the opportunity to file a motion to reopen within 30 days or leave the country. Also my employment authorization and my advanced parole have been cancelled. We researched this on the internet and talked to a couple of lawyers. We couldn't find much information about this and out of all the lawyers we wrote to only 2 knew about this legislation because
1. The legislation became effective on 9 July 2010,
2. This legislation only affects certain areas. One of them being San Diego, where we live.

One of the lawyers, Jacob Sapochnick, offered us to file a motion to reopen the case. My husband told him that we don't have much money but that he would be able to save up $1000 before the deadline. This lawyer offered to split his cost in half so we would pay him the $1000 now and $1000 later and he would file to waive the $630 fee to file the motion.
I read the instructions of form I-290b and it says we can only waive the fee if we can show inability to pay. I don't know if this applies to us though, because we have a 4 person household with my husbands mother and his brother and all three of them have a job, making money well over the poverty line. I don't really know how we would show inability to pay by just saying we won't have the money at the time.
I am concerned that we pay the lawyer all our money ad he doesn't even successfully file the application because USCIS doesn't allow us to waive the fee.

Should we trust the lawyer that the fee will be waived? Will he be responsible if they don't waive it or should we file without a lawyer? and how much lower are the odds of winning the case without a lawyer?

Also the letter stated that I am currently unlawfully present in the United States. So I have been illegally in the United states since 14 May 2010. That means if we don't win I have a three year bar in that I cannot enter the United states and if I don't leave before May 2011, I will get a 10 year bar which would be horrific, so I decided that I will definitely leave before May 2011.
But if the motion is still pending by then and I leave the country, does that mean, that my case is abandoned? And if yes, would it make more sense to leave the country right now and try to reopen the case from the consulate in Germany (or is that even possible?)

Also because the legislation is only being carried out in certain areas in the country, would it make sense to move to my family in San Francisco and file to motion from there or would the decision stay in San Diego anyway?

What should we do?

 

[BigJoe5]

Here is a good write-up of the situation: http://www.visalawyerblog.com/2011/01/visa_waiver_overstay_and_marri_2.html

It does not involve new legislation, it involves a series of Circuit Court cases interpreting 1986 legislation, as amended and evolving DHS/USCIS Policy decisions which remain undecided as they involve the exercise of discretion on a case-by-case basis. Your lawyer can only give you a "best guess" based on the particular positive and negative factors involved in your case.

As to the fee waiver, your case does not qualify for that because it requires a showing of financial ability for sponsorship (I-864) to receive the adjustment of status. Read the I-912 form instructions on that point.

 

[Jackolantern]

Don't call USCIS on the phone to ask anything important. Their phone reps are poorly trained and they often give wrong answers that will screw up your life if you follow their advice.

So we filed my i-485 on 23 July 2010. They approved first my advanced parole and then my employment authorization, so I was confident enough to cancel my appartment in Germany and anything else.

Approval of the EAD and AP are almost automatic; their approval should not make you confident about anything other than the ability to get an SSN and work (approval of AP doesn't mean they'll let you return to the US).

So I have been illegally in the United states since 14 May 2010. That means if we don't win I have a three year bar in that I cannot enter the United states and if I don't leave before May 2011, I will get a 10 year bar which would be horrific, so I decided that I will definitely leave before May 2011.

You are unlawfully present right now, but there is a good chance that your unlawful presence stopped accruing between 23 July 2010 (when you filed the I-485) and 30 December 2010 (the I-485 denial date). That is because unlawful presence does not accrue when a nonfrivolous I-485 is pending. There is enough controversy around the visa waiver (there is some disagreement among the Circuit Courts) that I don't think your I-485 will be deemed as frivolous. And if yours is nonfrivolous, you would only have about 80 days of unlawful presence right now (the time from May 14 to July 23, and December 30 until now).

Operating under that assumption, the 180-day mark would be crossed somewhere in April, so if you leave before then, you avoid the 3-year ban! But don't drag it out until April. Leave the US sooner if you can, because if you're still in the US when they initiate removal proceedings, it will be a nightmare in more ways than one.

One of the lawyers, Jacob Sapochnick, offered us to file a motion to reopen the case. My husband told him that we don't have much money but that he would be able to save up $1000 before the deadline. This lawyer offered to split his cost in half so we would pay him the $1000 now and $1000 later and he would file to waive the $630 fee to file the motion.

He's taking your money for no good reason and wasting your time. Fee waivers don't get approved unless you're really destitute, and if you're that destitute it casts doubt on whether you can satisfy the financial requirements (the I-864). And the Circuit Court decision applied to your location, so the Motion to Reopen is guaranteed to fail.

And if yes, would it make more sense to leave the country right now and try to reopen the case from the consulate in Germany (or is that even possible?)

You can't reopen the I-485, but you can continue the green card process in Germany in a different way. Those court cases say you can't stay in the US to adjust status after a visa waiver overstay, but you still can immigrate via a consulate. So leave the US and have your spouse file an I-824 to transfer the case to a consulate in Germany. Then a few weeks or months after that, you'll complete the consular formalities including the interview, and return to the US with an immigrant visa. That means you'd be back in the US around summer, with a green card!

The consular processing could fail if they deem your I-485 to have been frivolous (because it would mean you'd have more than 180 days of unlawful presence), but that is highly unlikely. Make sure to bring proof that your I-485 was pending for the stated time, to avoid having the consulate count that period as unlawful presence.

 

[not_ya_wify]

Thank you so much for your informative answer. I didn't respond earlier, because I didn't find the adress of this forum.

So now we decided to reopen the case without the lawyer, because we found out how he would argue it.
We were going to send the letter away by tomorrow. Do you think it's a bad idea to reopen?

You are unlawfully present right now, but there is a good chance that your unlawful presence stopped accruing between 23 July 2010 (when you filed the I-485) and 30 December 2010 (the I-485 denial date). That is because unlawful presence does not accrue when a nonfrivolous I-485 is pending. There is enough controversy around the visa waiver (there is some disagreement among the Circuit Courts) that I don't think your I-485 will be deemed as frivolous. And if yours is nonfrivolous, you would only have about 80 days of unlawful presence right now (the time from May 14 to July 23, and December 30 until now).

The main-reason we want to reopen the case is to buy me some time to get prepared for the move. Right now we have barely enough for a flight and I want to take two of my kittens with me. We will need to pay for vaccinations, a vet certificate, a microchip, a special kennel and the fee the airline requires. So we wanted to file the motion and hope that it would take 2 or 3 months or so. So I could plan on what to do next.
If we file to reopen, will that make me non-frivolous for the time they need to decide or will it still count as unlawful presence? Also in case they haven't decided before April, can I leave the country without abandoning the case?

You can't reopen the I-485, but you can continue the green card process in Germany in a different way. Those court cases say you can't stay in the US to adjust status after a visa waiver overstay, but you still can immigrate via a consulate. So leave the US and have your spouse file an I-824 to transfer the case to a consulate in Germany. Then a few weeks or months after that, you'll complete the consular formalities including the interview, and return to the US with an immigrant visa. That means you'd be back in the US around summer, with a green card!

Can we file the I-824 even though my I-485 was already denied? And if yes, does that also count if the motion to reopen was denied or abandoned?
Because I just googled I-824 and on uscis.gov the title is "I-824, Application for Action on an Approved Application or Petition" and it says the following underneath "Note: USCIS will not process Form I-824 if your petition or application has been denied or has not yet been approved."

Also I have another question - in case they DO say I was unlawfully present the whole time and I am facing a three year ban, does that mean it is unlikely, that I will EVER be granted permanent residency or can I reapply my I-485 after the three year ban?

 

[BigJoe5]

Only the I-485 was denied. The I-130 is still approved and can be transferred to the Consulate via filing the I-824 (IMO, that is the better way to spend your limited resources as far as filing anything with USCIS). Did USCIS specifically find that your marriage is a fraud and deny the I-130??? You made no mention of that.

An I-485 has no appeal rights because it is a discretionary decision. There is no judicial review of that discretionary decision either. A Motion could be viewed as frivolous in this particular case and not stop the clock on unlawful presence. Is that a chance you want to take? You would likely have no problem in being approved for an immigrant visa abroad IF the I-864 gets resolved. It sounds like you have help within the household to get that approved.

Can't you give your kittens away?--come on, that's just being silly. There are plenty of kittens in America, too. But, if you have your heart set on it, don't pay the lawyer to file a probably pointless Motion and use the Consular Processing timeline to take care of your cat situation.

 

[not_ya_wify]

No, the I-130 was approved. I was denied the I-485 on the grounds of overstaying my Visa Waiver.

Why would the motion be frivolous? Does that mean I would get into deportation proceedings even if I leave before April (or 30 days after they deny me)? On the letter they send me, it said, I have the right to motion to reconsider. So why would they say it is frivolous?

I'm definitely not giving my babies away. They're just as part of the family as my husband and I. In the worst case scenario I would leave them with my husband's family but I wanna take them because I don't wanna be seperated from them. Also this is not the only reason why we need more time.
As I mentioned above, I neither have a home in Germany anymore nor a source of income. My best friend just moved to Berlin, so there's no one I could stay with until I find an apartment. If I go back to Germany, I will have to find a shelter. Then from there I need to apply for social welfare, which can take up to a month until they start paying me. Then I need to find an apartment, which costs so little, that the social welfare office pays for it (which is pretty difficult in Germany). Then I need to find a job.

I'm not paying the lawyer to file the motion. We'll file it by ourselves.

 

[Jackolantern]

If the original I-485 is found frivolous, the motion to reopen or reconsider will almost surely be also considered frivolous, which would mean you're accumulating even more unlawful presence.

The motion can be found frivolous even if the I-485 itself isn't. But note that motions to reopen or reconsider are usually decided quickly (typically less than 30 days), so you're not buying much time even if the motion is nonfrivolous.

On the letter they send me, it said, I have the right to motion to reconsider. So why would they say it is frivolous?

Because they'll determine whether it's frivolous only after you file the motion and they analyze the motion against applicable laws and precedents.

Having said that, it's almost certain that your I-485 won't be deemed frivolous. So make sure you are prepared to leave before April, and hope they don't put you in removal proceedings before you leave. If necessary, have your spouse send money to support you in Germany while you wait for the consular appointment.

Note that once the I-824 is filed, the I-485 and its motions will soon be canceled. You're not allowed to have both an I-485 and consular processing going on at the same time.

 

[not_ya_wify]

If the original I-485 is found frivolous, the motion to reopen or reconsider will almost surely be also considered frivolous, which would mean you're accumulating even more unlawful presence.

But I'm unlawful right now. Does that make a differenece if I leave in 10 days or in 30 days? I thought as long as I leave before April, I don't get a ban?

The motion can be found frivolous even if the I-485 itself isn't. But note that motions to reopen or reconsider are usually decided quickly (typically less than 30 days), so you're not buying much time even if the motion is nonfrivolous.

Well but it would at least be a little bit time. If we don't file, I would have to leave within 10 days. If we do file and they decide it in let's say week - wouldn't I get a week plus another 30 day ultimatum?

Because they'll determine whether it's frivolous only after you file the motion and they analyze the motion against applicable laws and precedents.

We were basically going to say that the letter they send us with the denial was a misstatement of the law. The writing in the letter states that they denied me because of the law saying I was not eligible for an Adjustment of Status due to my overstay. However they're decision was completely discretionairy since they only proceed this way in cities close to the border. That's why we want them to reconsider their decision.

So make sure you are prepared to leave before April, and hope they don't put you in removal proceedings before you leave. If necessary, have your spouse send money to support you in Germany while you wait for the consular appointment.

I was going to leave before April either way and my husband will give me half of his paycheck. But that won't help me much because my husband doesn't make that much money and the value of the dollar compared to the Euro is extremely low. In the end it wouldn't be enough to survive off of.

Note that once the I-824 is filed, the I-485 and its motions will soon be canceled. You're not allowed to have both an I-485 and consular processing going on at the same time.

Does motioning make it less likely for the consular to approve my i-485?

Thank you for your help

 

[Jackolantern]

But I'm unlawful right now. Does that make a differenece if I leave in 10 days or in 30 days? I thought as long as I leave before April, I don't get a ban?

If you leave on your own before April you won't trigger the ban. However, now that you're unlawfully present, they may put you in removal proceedings at any time. If the end result is that you're forcibly deported, you'll be banned for at least 5 years (5 years is the standard minimum for someone who is deported, even if their overstay was only a few days). However, you can request voluntary departure, and if they grant it you won't get the ban if you leave before the deadline the judge gives, and before you accumulate 180 days of unlawful presence. But beware that you may spend weeks or months being locked up in an immigration detention center before you see the judge.

Well but it would at least be a little bit time. If we don't file, I would have to leave within 10 days. If we do file and they decide it in let's say week - wouldn't I get a week plus another 30 day ultimatum?

Not necessarily. They could initiate removal proceedings the same day the motion is denied.

We were basically going to say that the letter they send us with the denial was a misstatement of the law. The writing in the letter states that they denied me because of the law saying I was not eligible for an Adjustment of Status due to my overstay. However they're decision was completely discretionairy since they only proceed this way in cities close to the border. That's why we want them to reconsider their decision.

Other courts have also ruled the same way; it's not just the ones in border states. Unless you have some high-powered lawyers who can challenge the court ruling in a higher-level Federal appeals court, your motion will fail like an ostrich trying to fly.

Does motioning make it less likely for the consular to approve my i-485?

I-485 is a process that is handled only by USCIS inside the US. Consulates cannot approve any I-485. What the consulate can approve is an immigrant visa, which would give you a green card via another route; upon entry to the US with the immigrant visa, you become a permanent resident and your physical green card will be automatically mailed to you within a few weeks after your entry. The court rulings are specific to the I-485 process and they don't take away your eligibility to pursue an immigrant visa via the consulate.

But you cannot have an I-485 and a consular green card process going on at the same time. So once the I-824 is filed to transfer the case to the consulate, the I-485 and any pending motions will be canceled by USCIS, and then USCIS will forward your I-130 to the consulate which will then take control from that point forward.

 

[not_ya_wify]

Thank you for your quick answer.

They could initiate removal proceedings the same day the motion is denied.

I guess then I have no choice but to leave. I already looked up a flight after your last answer. I found one that we could afford. I just hope it's still there by the time my husband gets home.

Consulates cannot approve any I-485. What the consulate can approve is an immigrant visa.

So what kind of visa (which forms) should we apply for once I'm back in Germany and how much money do we need to save up before we can file
or to be more precise - what is the filing fee + any other expenses I may have?

 

[BigJoe5]

http://travel.state.gov/visa/temp/types/types_1263.html fees

http://travel.state.gov/visa/immigrants/info/info_3190.html form is DS-230, further info and links at this site.

www.uscis.gov for the I-824 form and fee info

 

[Jackolantern]

I guess then I have no choice but to leave. I already looked up a flight after your last answer. I found one that we could afford. I just hope it's still there by the time my husband gets home.

Make sure to retain proof of your departure from the US; the consulate may want to see evidence that you left the US when you say you left, so they can validate how much unlawful presence you accumulated. So hold on to your boarding pass. If you stay in a hotel when you initially arrive in Germany, keep the hotel receipt.

So what kind of visa (which forms) should we apply for once I'm back in Germany and how much money do we need to save up before we can file
or to be more precise - what is the filing fee + any other expenses I may have?

BigJoe posted some useful links. You'll have to redo the medical in Germany, which may include a fee for the doctor (which may be paid by the government or your insurance, depending on what they cover in Germany). Note that you'll need to wait until the I-824 is processed and the consulate has notified you before you can submit the forms to apply for the immigrant visa. That may take anywhere from a few weeks to months.

 

[not_ya_wify]

So which visa do I apply for with the DS-230? A K-Visa? So does that mean I pay $405 for the I-824 first and later $350 for the K-Visa? That makes $755. Do I have to apply for anything else or are there other fees involved?

Also - do I need to submit another medical examination or is the one I submitted for my I-485 sufficient?

 

[not_ya_wify]

Make sure to retain proof of your departure from the US; the consulate may want to see evidence that you left the US when you say you left, so they can validate how much unlawful presence you accumulated. So hold on to your boarding pass. If you stay in a hotel when you initially arrive in Germany, keep the hotel receipt.

I am probably not going to live in a hotel. Is the boarding pass sufficient? And do I need the boarding pass from when I came to the US? Because I don't have that anymore.

BigJoe posted some useful links. You'll have to redo the medical in Germany, which may include a fee for the doctor (which may be paid by the government or your insurance, depending on what they cover in Germany). Note that you'll need to wait until the I-824 is processed and the consulate has notified you before you can submit the forms to apply for the immigrant visa. That may take anywhere from a few weeks to months.

Ok, can I redo the medical before I am notified or does it have to be within a certain amount of time before applying? Do I need to pay a fee for the medical to the consulate? Is that the only thing I need to redo?

It also says I need 2 new photographs. Do I really just need 2 or is there something I didn't read and I need to submit photos for every form I submit?
Also I would like to take the pictures while I'm still in the US, because biometric photos in Germany aren't squares and I know it's a huddle to get those in Germany.



EDIT:

Another question - do I have to answer any of these with yes because of my denied i-485?

f. An alien who failed to attend a hearing on deportation or inadmissibility within the last 5 years; who seeks or has sought a visa, entry into the United States, or any immigration benefit by fraud or misrepresentation; who knowingly assisted any other alien to enter or try to enter the United States in violation of law, who after November 30, 1996, attended in student (F) visa status a U.S. public elementary school or who attended a U.S. public secondary school without reimbursing the school; or who is subject to a civil penalty under INA 274C.

h. An alien who was previously ordered removed within the last 5 years or ordered removed a second time within the last 20 years; who was previously unlawfully present and ordered removed within the last 10 years or ordered removed a second time within the last 20 years; who was convicted of an aggravated felony and ordered removed; who was previously unlawfully present in the United States for more than 180 days but less than one year who voluntarily departed within the last 3 years; or who was unlawfully present for more than one year or an aggregate of one year within the last 10 years.

 

[Jackolantern]

I am probably not going to live in a hotel. Is the boarding pass sufficient?

I didn't expect you to live in a hotel; I was only talking about the first night when you arrive in Germany. Basically, the point is to keep documents that can demonstrate you were in Germany on the stated flight date or shortly after.

The boarding pass might be sufficient, but if you have more proof that's better.

Also make sure to give in your I-94W (if you still have it) to the airline agent when checking for the flight that departs the US, or to the agent at the gate after you check in. That greatly improves the chance that your exit will be properly stored in the system so the consulate will easily see it.

And do I need the boarding pass from when I came to the US? Because I don't have that anymore.

No you don't need that. That doesn't help with proving your exit from the US. But you should keep the I-485 receipt and I-485 denial, since those will be useful for the counting of your days of unlawful presence.

Ok, can I redo the medical before I am notified or does it have to be within a certain amount of time before applying? Do I need to pay a fee for the medical to the consulate? Is that the only thing I need to redo?

It also says I need 2 new photographs. Do I really just need 2 or is there something I didn't read and I need to submit photos for every form I submit?
Also I would like to take the pictures while I'm still in the US, because biometric photos in Germany aren't squares and I know it's a huddle to get those in Germany.

Fingerprinting, medical, and interview must be redone (but the consular interview doesn't require your spouse's presence). For more details of the consular process, search or ask in the Family Based Green Cards section: http://forums.immigration.com/forumdisplay.php?39

Once the I-824 is filed, you still have to wait weeks or months before the I-824 is processed and the consulate contacts you, so you'll have more than enough time to learn what needs to be done and get it done.

Another question - do I have to answer any of these with yes because of my denied i-485?

No. "Ordered removed" is referring to the result of removal proceedings, which haven't happened for you.

 

[not_ya_wify]

I didn't expect you to live in a hotel; I was only talking about the first night when you arrive in Germany.

Well I wrote a friend asking if I can stay at her place. If she says no, I will probably call a Foster home where I know some of the social workers. They have a small room for homeless teenagers. If that is free, I hope they let me stay there. I don't know if they will document my stay there though. I've never been homeless or stayed in that room before. Also I'm not a teenager.

Once the I-824 is filed, you still have to wait weeks or months before the I-824 is processed and the consulate contacts you, so you'll have more than enough time to learn what needs to be done and get it done.

Is it normal to take months? Of course I'd rather get it all done as quickly as possible.
What's the longest time it could take until I-824 and the Visa application are approved and I can go back to the US?
And how long will it at least take? Or on average?

 

[TheRealCanadian]

Is it normal to take months? Of course I'd rather get it all done as quickly as possible. What's the longest time it could take until I-824 and the Visa application are approved and I can go back to the US? And how long will it at least take? Or on average?

I would assume several months. The I-130 is approved, which makes things a little quicker, but the I-824 might take a bit.

 

[not_ya_wify]

several months until I get back to the US or several months until the I-824 is approved?

 

[Jackolantern]

several months until I get back to the US or several months until the I-824 is approved?

Either one. The I-824 could take several months. Or it might be processed quickly but then the NVC and consulate take long with the next step. Or both process quickly and you're back in 2-3 months. It's inconsistent and unpredictable. Be prepared for 2 months, 12 months, or anything in between.

 

[not_ya_wify]

What is the NVC?

I have another question - if I don't get a ban, can I come back to the US for visits? And if yes, do I have certain restrictions like I can't use a visa waiver anymore or so?