Legal ramifications for pending I-485 using AB 540 in CA?

[The_Journey]

Let me explain my situation first:

My mom and I came here on B visas. We overstayed for 2 years, my mom and my step-dad (USC) got married (bona fide, love each other, live under single roof, filed tax jointly, joint bank account and etc... for 6 years now). My step-dad and my mom filed the (I-485s, I-130s, G-325As, I-765s and etc...) for herself and I, the applications have been pending for 6 years (I don't know why, who knows why, USCIS probably doesn't even know why). The only thing we got from the USCIS (recently) is a letter in December last year telling my mom to get her fingerprinting done, so I guess they haven't denied the I-485s yet. We got our EADs btw, mine expired 2005 (because I don't have a reason to work yet) while hers is current.

So now the real dilemma:

I have been applying for colleges and because our status(es) is still up in the air, I couldn't apply to the many scholarships and grants in CA. So I decided to give up going to a UC and rather go the community college route and transfer in 2 years to save money.

However, even the community college in our district (San Diego Miramar) refused to let us pay resident-fees because our applications are still pending. We have to pay nonresident-fees, which is ~$3000 and we just can't afford that in the current economy. We decided to try Grossmont College instead.

Now I have read online about AB 540, which is supposed to allow undocumented students to pay in-state tuition if they went to a public CA high-school for 3 years. The Grossmont College even has this Guidelines from the Chancellor's Office regarding AB 540. Can't post the link because I have less than 15 posts.

In the guideline it says AB 540 can be used by any aliens who are not nonimmigrant, so can I apply under this law?

Will there be any ramifications if I use the AB 540 while my permanent residence application is still pending?

It seems I have to sign an affidavit saying I will try to legalize my status the moment I am eligible to, will this have an adverse effect for me in the future?

Will using the AB 540 affect our current applications or possibly our naturalization process in the future?

Thank you very much for helping a confused and very stressed out senior in high-school

 

[BigJoe5]

Let me explain my situation first:

My mom and I came here on B visas. We overstayed for 2 years, my mom and my step-dad (USC) got married (bona fide, love each other, live under single roof, filed tax jointly, joint bank account and etc... for 6 years now). My step-dad and my mom filed the (I-485s, I-130s, G-325As, I-765s and etc...) for herself and I, the applications have been pending for 6 years (I don't know why, who knows why, USCIS probably doesn't even know why). The only thing we got from the USCIS (recently) is a letter in December last year telling my mom to get her fingerprinting done, so I guess they haven't denied the I-485s yet. We got our EADs btw, mine expired 2005 (because I don't have a reason to work yet) while hers is current.

So now the real dilemma:

I have been applying for colleges and because our status(es) is still up in the air, I couldn't apply to the many scholarships and grants in CA. So I decided to give up going to a UC and rather go the community college route and transfer in 2 years to save money.

However, even the community college in our district (San Diego Miramar) refused to let us pay resident-fees because our applications are still pending. We have to pay nonresident-fees, which is ~$3000 and we just can't afford that in the current economy. We decided to try Grossmont College instead.

Now I have read online about AB 540, which is supposed to allow undocumented students to pay in-state tuition if they went to a public CA high-school for 3 years. The Grossmont College even has this Guidelines from the Chancellor's Office regarding AB 540. Can't post the link because I have less than 15 posts.

In the guideline it says AB 540 can be used by any aliens who are not nonimmigrant, so can I apply under this law?

Will there be any ramifications if I use the AB 540 while my permanent residence application is still pending?

It seems I have to sign an affidavit saying I will try to legalize my status the moment I am eligible to, will this have an adverse effect for me in the future?

Will using the AB 540 affect our current applications or possibly our naturalization process in the future?

Thank you very much for helping a confused and very stressed out senior in high-school

You should have renewed your EAD to show your (c)(9) category which means a pending I-485 for adjustment of status. Mom and stepdad got married before you turned 18, right?

It is highly unusual for an Immediate Relative adjustment to remain pending for 6 years. Did you and mom have actual B visas or a Visa Waiver? If the visa waiver entry is the case and the I-485 was filed after the 90 days of authorized stay, then San Diego will likely deny it. Google for Momeni v Chertoff in the 9th Circuit.

 

[The_Journey]

Thank you BigJoe5 for the response.

I know it is unusual, I get that a lot when I tell people my case. We did enter on B visas. My mom and stepdad did marry before I turn 18. I do not know why USCIS take so long.

I showed the admission lady at the college I applied for our I-485 proofs such as previous EADs, fingerprinting appointments and etc... I even showed her the section of the "California Community Colleges Student Attendance Accounting Manual" regarding Alien Students and where it said that I need to show that I applied for change to permanent residence status to be eligible to be classified as residence for tuition purposes. She still insisted that the district policy requires that students have their I-485 approved before classifying them as residence.

As for the main question in my original post, will applying for college using AB 540 to pay residence fees and tuitions cause any current / future problems regarding my case?

 

[Jackolantern]

As for the main question in my original post, will applying for college using AB 540 to pay residence fees and tuitions cause any current / future problems regarding my case?

Ask a lawyer. But something like AB 540 shouldn't be necessary, because you should be able to get in-state tuition based on your I-485 receipt. Are the Grossmont College people also insisting on I-485 approval?

You also should consult a immigration lawyer about filing a WOM (Writ of Mandamus) lawsuit to resolve your and your mother's I-485. Six years is utterly ridiculous for a case based on marriage to a US citizen, and if it has taken this long it probably will never end without filing WOM.

Meanwhile also start contacting your Senator or Congressperson, and the USCIS Ombudsman (http://www.dhs.gov/files/programs/editorial_0497.shtm); the court expects you to try avenues like those, and give them a couple months to act, before filing WOM. Be sure to include specific details in your letter/message to them, such as the exact receipt date of your and your mother's I-485 (see the I-485 receipt notice) and the receipt number.

When filing WOM, be sure to ask the court to directly decide the case instead of remanding it back to USCIS, since after a 6-year delay you cannot expect USCIS to decide it in a timely manner.

Apply to renew your EAD, if you haven't already done so.

Do you know if the I-130 is approved?

 

[BigJoe5]

Adjustment of status is a "discretionary decision" therefore, you cannot request the court to decide the case. However, USCIS has a "duty to adjudicate the case" and that is governed by "within a reasonable time". Six years is not reasonable for an IR case. Similar cases have been won for mandamus after a delay of 6 months in the 9th Circuit where you are.

 

[The_Journey]

The issue about I-485 pending so long is not the point of this thread. We are dealing with that separately.

The point of this thread though is if AB 540 will have adverse effects on my immigration case.

Can anyone answer this?

Thank you very much.

 

[Jackolantern]

AB 540 is California-specific. And your case of being refused in-state tuition because of a pending I-485 is also unusual (actually it's the first time I've heard of ever that happening). So it's highly unlikely you'll find the answer to your question here.

But I think that you just happen to be dealing with an ignorant staff member who doesn't properly understand the California laws regarding in-state tuition for people who've applied for AOS, and a letter from a lawyer is likely to cause enough pressure on them to refer the situation to higher-level officials and/or their legal department who will ultimately concede that you are right.