Interesting case - Filed I-485, attended and passed interview, yet received denial

A

Aquinox

New Member
Hi, I'm helping my younger brother out with the denial of his form I-485.

We (step-dad, mother, younger brother, and I) have, up until this moment, been handling the case ourselves, and have been regularly (every few months) been making appointments with USCIS to get information which we couldn't clarify online or over the phone. We made it pretty far with my brother's case, and it got blown out of the water...

Our step dad petitioned for his I-130, it was approved, and then my brother came to visit the US and spoke to an officer at USCIS. We took his approved I-130 to find out whether he was eligible to apply for an i-485 or whether he should go back to his home country and await a visa. We were told that he could file for the I-485 and continue to stay and study in the US. We had some doubts about his age because he had turned 18 years old, 4 months prior and were not sure whether he was still eligible or not. After confirming though, we proceeded to file, and of course submitted his birth certificate.

It went all the way through to the interview, where he passed and was told that he just needed to re-submit a page on a medical form which the doctor forgot to tick, and that after this, he could expect his green card in the mail after some time. We submitted the document and they confirmed and wrote that the application was being processed.

He's been studying in college ever since he filed for the I-485, and all of a sudden (no prior notice), we received a decision letter in the mail ~6months later (a couple weeks ago) that his application was denied because "you have provided no evidence to indicate you are immediately entitled to an immigrant visa on any other basis. There you are not qualified to adjust, and USCIS denies your form I-485."

It's really shocking. They don't really specify why or even what evidence they expected to begin with. We were forthcoming and open about the whole thing from the start. He didn't even need to stay in the US, but based on information from USCIS (note that we confirmed twice in person, with several months in between each appointment about the case because we knew it meant him discontinuing ties in his home country, including university).

So now we want to file an I-290b but I'm not quite sure how to go about doing it. We have a few days left before we have to file it, and I've got a rough draft ready, but I have so many questions about this still about this case. Should I argue that we don't understand what evidence they expect us to provide? We suspect it could be the age thing because we approached an immigration lawyer and he was baffled at how we made it this far when we weren't supposed to have even been able to get past the first tier since he was "over 18". He suggested that since we made it this far on our own, perhaps it would be best if we continued ourselves, because he just didn't know how to go about arguing our case.

Any suggestions? I think I could also argue that we made many decisions based on information we received directly from USCIS. What we really want is for him to get his green card, but we'd also be satisfied if he could at least complete his education (he's in the middle of his semester right now), and/or if he could get a retrograde priority date for a new I-130 which we plan to file for him (where our mother, a resident, will be the petitioner). Had we known that he wasn't eligible to apply for the i-485, my mom would have filed his i-130 immediately after she received her green card.

I hope the post isn't too convoluted - I'm really too sleep deprived at the moment. I hope someone can help.

Thank you for your time!
 
The 18 thing is just about when the parents got married, not when he immigrates. As long as the parents were married before he was 18, he counts as a child, and can be petitioned by his stepfather, no matter what age he applies to immigrate (after he turns 21 he would be classified as F1 category instead of Immediate Relative category, but I'm assuming he isn't there yet).
 
They got married right after he turned 18. Sorry I realize I hadn't even mentioned that my step dad (US citizen) married my mother and she got her GC via his petition.
 
If they married after he turned 18, then he never qualified to be petitioned as a child by the stepparent. Your stepfather should not have tried to petition him, and the petition should have been denied; it's a mistake that they approved it. It's not the I-485 that's the problem -- it's the I-130, which was approved incorrectly, and is now denied correctly. There is nothing to appeal -- the denial of the petition is completely correct.

If they wanted to marry with children between 18 and 21, a more preferable option would have instead been for the mother come on K-1 and then marry, and then children under 21 would have been able to come on K-2. But it's too late for that now.

The only way for him to immigrate now would be for his mother to petition him. Unmarried under-21 child of permanent resident is in the F2A category, which has a wait of about 1.5 years. Hopefully he doesn't age out, because unmarried over-21 child of permanent resident is in the F2B category, which has a wait of about 6.5 years.
 
That was exactly my worry! He will age out...had my parents realized that my step father should't have petitioned (USCIS basically said sure it's not an issue), he would have been able to immigrate the way you described, or at the very least in the F2A category, but since we've waited this long for this entire case, he will age out (his birth date is June 26, 1996) even if his mother applies for him tomorrow.

Is there absolutely no point in appealing this case? If it could buy us some time at least, for him to get his associate degree (he needs 8 months more to complete it), it would be very helpful. As per my understanding, he may continue to study while their decision to reject/approve the appeal is pending? Or perhaps it would be better to just leave? I'm also concerned what it means that he's been out of status for the past couple of weeks (we received the denial decision on August 6th 2016). Would that in any way affect his B1/B2 visa if he wanted to come visit us in the US in the future? Would he lose any immigration benefits?

We want to go about this the right way and not cause any trouble with immigration/customs, and USCIS has been far from helpful (I'd go as far as to say somewhat destructive with the inconsistent information we receive).
 
We hoped to at least be able to get an older priority date for the new I-130 that his mother would file for him, but I don't even know how I'd go about requesting that - let alone if that's even possible.
 
He might not age out. There is still almost a year until he turns 21. Under CSPA, the length of time the I-130 petition is pending is subtracted from his age. So for example, if the I-130 takes 6 months to approve, then he does not age out until age 21.5. It really depends on the speed of the I-130 processing and is hard to tell now. Though I-130s for F2A have been pretty quick to process these days, there are some tricks like forcing them to issue RFEs to you for the I-130 to drag it out for longer.

He can't really stay in the US. He is accruing "unlawful presence" and you don't want him to accrue 180 days of it as that will trigger a ban when he leaves the US. Also, since his Adjustment of Status was denied, you can expect that they will initiate removal proceedings against him soon if he doesn't leave. There is no "appeal" for AOS -- a Motion to Reconsider or Motion to Reopen doesn't stop "unlawful presence" or removal proceedings, unlike an appeal. He could wait until he's in removal proceedings and that will buy some time, though I'm not familiar with how much. He could try to ask for voluntary departure, though I am not familiar with how far in the future they are willing to grant that, and whether it could be enough to complete his studies. But if he isn't granted voluntary departure, he will be removed for sure, and removal also triggers a ban.
 
Okay, first off, I'm really kicking myself for not finding out about this forum sooner. The advice you're giving me is so clear-cut and extremely helpful. I can't thank you enough.

Yes, I'm aware that he is accruing "unlawful presence", and until now, had been wondering what exactly that entails, and how much of it is "bad". Would it be okay if he left in the first week of September (~2 weeks from now)? He could at least finish this quarter and collect his adacemic transcript that way, before leaving. We're really worried about whether he will lose any immigration opportunities, and about his B1/B2 visa - do you think it will be unaffected if he accrued a total of 37 days? Does it make any difference if it's less than 180 days (eg. 50 days vs 100)?

If there's a chance he won't age out, I can ask my mom to file for him this week. So we should forget about the I-290B then? As far as I've understood from your posts, it would be totally useless to our cause, right?
 
Oh, also, the idea you gave about voluntary departure - if he were to file for this, wouldn't he be ineligible to study (since he would still be considered out of status right?)? I looked it up, and it seems like he fits the requirements.

What did you mean by: "But if he isn't granted voluntary departure, he will be removed for sure, and removal also triggers a ban."?

Does that mean we will have no time to react if it gets denied, and he will automatically be removed and banned? Or will they give a regular denial notice and say you have x number of days to leave before removal proceedings?
 
"Unlawful presence" is only about the 9B ban. If one accrues 180 days of "unlawful presence" and then leaves the US, they have a 3-year ban; if one accrues 1 year of "unlawful presence" and then leaves the US, they have a 10-year ban. It's possible to try to apply for a waiver of this ban based on "extreme hardship" to his LPR mother, but it's best not to have the ban in the first place. He does not accrue "unlawful presence" while his AOS is pending, so he has only accrued a few weeks of it so far; just make sure he leaves before it approaches 180 days.

Voluntary departure is not something he can apply for now. It's something he would ask the immigration judge for once he is already in removal proceedings. Once he is in removal proceedings, it's beneficial to get voluntary departure so as not to have the consequences of removal. If he is removed (even if he leaves voluntary while under removal proceedings, but wasn't granted voluntary departure, he can still count as being removed), he would have a 10-year 9A ban. (It's also possible to overcome this ban but best not to have it.) It's up to the judge whether to grant voluntary departure, and the judge does not have to grant it. If granted voluntary departure, he also stops accruing "unlawful presence" as long as he complies with it. I am not sure whether going through removal and voluntary departure will give him enough time to finish his studies, so I am not sure whether it's worth it to wait and see or to leave ASAP before removal proceedings are started.

He is already out of status. It is up to the school whether he can study (though he has been studying so far, so I don't think it's a problem).

When the mother files the I-130, because there's a good chance he will age out, you should consider the idea of intentionally leaving out some document to force them to give you an RFE, to delay the I-130 approval which will delay his aging out. There's some risk but I think it's worth a try.

His B visa is gone. It was automatically voided when he started accruing unlawful presence. Plus, even if he didn't do that, the fact that he tried to apply for Adjustment of Status plus his family is all in the US screams immigrant intent, and he would not be able to get a B visa or enter the US with a B visa even if he had one anyway. He will have to wait until he can get an immigrant visa before he can return to the US.
 
Okay we attended a a long-awaited appointment with USCIS this morning. The immigration officer told us specifically that since my brother's I-485 was denied, he would "fall back" on the previous status he had - B2 visitor. And since his B2 visa expired on Dec 25 2015, he claimed that my brother has accrued ~8months of "overstay" (I asked him if it's overstay or out of status). I have confusion with regards to these terms, but he said clearly, multiple times that he would get an auto-ban if he were to leave the country now, and that he can't give advice about what to do so we should hire an attorney, but "according to the law, your brother will receive a 3 year ban once he leaves".

Is this just another one of those times where the immigration officer doesn't know the law, or is there something else behind what he's suggesting? At this point we're not concerned with school and we just want to get him out of the country in the best way possible - whether he has to file something before that or not, is something I'm still trying to ascertain. What's the best way to smoothen out this process, or minimize/stop a ban, if there will be one?
 
The person doesn't know the law. One does not accrue unlawful presence while Adjustment of Status is pending, even if Adjustment of Status is denied.
 
Thank you for your responses. Just an update to our situation; my brother left the US 2 weeks ago, and now I'm trying to help him file a new I-130 (mother is petitioning for him this time). Gonna file it in the morning. I had a doubt though - he received an Alien number during the previous process...should I include that "old" or previous Alien number on the new I-130 form where it asks for Alien number? Or do I leave it blank or write N/A or None?

and should I include a copy of his I-94?
 
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