this is my situation - input very welcome

A

AZBOfin

Registered Users (C)
Hello,

In mid 1990 my parents became permanent US residents (green card). In October of 1998 they filed an I-130 for me as an unmarried son over the age of 21.

The year before, me and my longtime fiancée opened up a business under an E2 status. To "protect" us and our business we got married in December of 1999. Our attorney at that time didn't advise us otherwise. She said that the pending petition will be adjusted to reflect that change.

I am now a married son of a permanent resident alien over the age of 21.
My parents became US citizen in 2000.

The status of the petition, which was filed for an unmarried son, changed now to 2nd preference category. The USCIS didn't inform us that our marriage changes this petition completely and will be revoked and denied.

We had a change in attorney because we felt of not being represented correctly - nothing was moving. Our new attorney advised us to file a second petition (I-130) for a married son of US citizen over the age of 21, since the first petition most likely will be revoked and denied.

A second petition (I-130) was filed in 2003 for a married son of US citizen - 3rd preference category - status pending.

To our surprise, the first petition was approved in 2005 and when priority date arrived we filed an I-485 (October of 2006).

We received an appointment notice for the biometrics and were invited to an interview.

In April of 2007 we were informed about intent to revoke since the original first petition, which called for an unmarried son (2nd preference), was no longer valid.

Our attorney answered with a letter to USCIS explaining the situation. No answer. We were advised by our attorney to wait and stay putt. We just kept up with the proper procedure and filings.

Last week (around April 20th) we received notice that our second petition was approved. Well done, everything is right on track.

Yesterday (April 29th, 2008), my parents (the petitioner) received a notice about the revoke of the first petition. After a year of waiting, the "intent to revoke" was finalized. This is absolutely correct, since this petition calls for an unmarried son of US citizen, and I am married now.

The second petition (3rd preference) is approved and we just have to wait for the priority date to arrive.

Also yesterday, we received a letter from USCIS that our whole case is being denied. They say that, as of April 2008, there are no visa numbers available for citizens from Switzerland.

We are completely floored by this. Why is the whole case denied? The second petition for 3rd preference category is approved/pending and no priority date was given. The letter from the USCIS field office is not one of those "official" papers, it's a simple letter. We haven't even filed a second I-485 for this petition yet. Do they have a mix up between the two petitions?

What bothers us most is the fact that it states: "There is no appeal to this decision"
And further: "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."


I appreciate any input.

Thanks a lot
Dominik aka AZBOfin
 
Your I-485 (based on the erroneous I-130) triggered it. You would have been in better shape had you not applied for an I-485 based on the first I-130. The first I-130 was approved in error, since USCIS had no way to find out that you were now married Do you have any legal non-immigrant status to fall back on?

AZBOfin said:
What bothers us most is the fact that it states: "There is no appeal to this decision"
And further: "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."
Click to expand...
 
Triple Citizen said:
Your I-485 (based on the erroneous I-130) triggered it. You would have been in better shape had you not applied for an I-485 based on the first I-130. The first I-130 was approved in error, since USCIS had no way to find out that you were now married Do you have any legal non-immigrant status to fall back on?
Click to expand...

Our attorney advised us to file I-485 even though the petition is erroneous to have "something" pending.

I don't have a legal non-immigrant status as of yesterday.

If I read your statement correctly, it would mean that a I-485 is based on one petition only - it doesn't roll over to another petition.
By filing a second I-485 I could regain control over the situation again - correct?

AZBOfin
 
No, you are out of status and can't file I-485 now. It would be denied right away. First of all, GET A GOOD ATTORNEY. It seems you got stuck with pretty lousy attorneys so far (which really sucks :( if you can't rely on your attorney's advise). Good attorneys are expensive, so probably don't try to save too much money on this.

Your only path at this point (short of marrying a US citizen) is to apply for consular processing and get an immigrant visa abroad (based on your new I-130). HOWEVER, and this is important. Make sure you have not earned a 3 or 10 year bar. And for this you probably really need an attorney. Your I-485 might be considered filed "in bad faith" since you knew or should have known that your I-130 is improper. In such cases the I-485 does not extend your status and you might have been out of status since the filing date. That can have very severe consequences. So again, spend some money on a knowledgeable attorney.
 
AZBOfin said:
I guess I am an illegal alien now :mad:
Click to expand...

what about your E2 visa? If you are still engaged in your business and visa is still valid then you might be able to file a new 130 (married son over 21) and wait it out on your E2.
 
E2 is not dual intent, so he lost his E2 status. He has a new I-130, thats not the problem. A potential bar and being out of status are the issues here.
 
LucyMO said:
on what basis?

your second PD isn't current, is it?
Click to expand...

yes, you're right. the second PD isn't current.
however, why does USCIS deny the whole case, even though the second petition is approved and valid?

i would publish the decision but i am not sure if this is appropriate and doesn't violate the terms of this open forum.
 
AZBOfin said:
yes, you're right. the second PD isn't current. however, why does USCIS deny the whole case, even though the second petition is approved and valid?
Click to expand...

Because the PD is not current, and the first I-130 was not valid when its PD was current. Therefore the I-485 needs to be denied. It's unfortunate, but logical.
 
nscagony said:
I wonder whether you can port the priority date since initially the I-130 submission was appropriate.
Click to expand...

this is what my last attorney was going for. there was a change of law in april of 2001 - after my parents (the petitioners) became US citizens and
after i got married.

here is part of his response in regards to the intent to revoke of the first petition:

"the notice states that the I-130 was approved in error. at the time the petition was filed (October 1, 1998), however, X was not married and so the petition was approvable. since the petition was approvable when it was filed, regardless of whether or not it was later withdrawn, denied, or revoked due to X getting married, X is still considered a grandfathered alien. therefore, the visa should not be revoked pursuant to 8 CFR 245.10(a)(3) which states, in relevant part, that "A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later...revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status...under section 245(i) of the Act."

because of this we filed the I-485 when the PD of the first petition became current.

i don't mind waiting another 2 or 3 years until the new petition's PD becomes current and then file another 485. if i have to pay a fine because i am out of status, so be it. but i don't see a reason why the whole case is being denied.

does anybody know if it's ok to publish letters received from USCIS?

thanks for taking interest in my case
AZBOfin
 
AZBOfin said:
X is still considered a grandfathered alien. therefore, the visa should not be revoked pursuant to 8 CFR 245.10(a)(3) which states, in relevant part, that "A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later...revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status...under section 245(i) of the Act."

because of this we filed the I-485 when the PD of the first petition became current.
Click to expand...

You need a new attorney. The part of the law you quote merely covers eligibility for 245i relief - it does not mean that the I-485 can be supported by the revoked I-130.
 
AZBOfin said:
"the notice states that the I-130 was approved in error. at the time the petition was filed (October 1, 1998), however, X was not married and so the petition was approvable. since the petition was approvable when it was filed, regardless of whether or not it was later withdrawn, denied, or revoked due to X getting married, X is still considered a grandfathered alien. therefore, the visa should not be revoked pursuant to 8 CFR 245.10(a)(3) which states, in relevant part, that "A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later...revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status...under section 245(i) of the Act."
Click to expand...

245(i) only gives you a privilege to stay and file I-485 in the US if immigration petition was filed before the said deadline. If immigration petition is based on wrong preference category, clearly it is void and I-485 cannot be filed based on invalid immigration petition.
You definitely need a new lawyer.


i don't mind waiting another 2 or 3 years until the new petition's PD becomes current and then file another 485. if i have to pay a fine because i am out of status, so be it. but i don't see a reason why the whole case is being denied.
Click to expand...
You don't have to pay a fine since you are not covered by 245(i), but you need to get a valid status. Whole case was denied for the reasons mentioned by the previous posters... i.e. I485 was based on invalid I-130.
 
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