I-485 Denied but I-130 Was Approved

D

DKoc

New Member
Hi Everyone,

Thank you for reading my questions in advance. I am a permanent resident in the U.S. and I petitioned for my wife by filing I-130 while she was a graduate student and legally present in the U.S. . While I-130 was still pending we filed for I-485 based on our priority date and the fact that she was working in the U.S. with her OPT. Recently we had the interview and found that our I-130 was approved while I-485 was denied with the argument that at the time of our application I-130 was not yet approved. We also received a notification that her EAD card that was given for the I-485 application will be revoked unless we can provide proof that her I-485 is still pending. However, nowhere in the USCIS website it is mentioned that you need the I-130 approved for being able to apply for I-485 change of status. I am also 100% certain we filled out and filed her adjustment of status after her priority date became eligible. Therefore we believe (and my attorney as well) that USCIS erroneously denied her I-485 application. My questions are:

- In this case would applying for a motion to reconsider make her I-485 still pending or would she lose that EAD card no matter what?

-Since her OPT is ending within a month we are worried that she will be out of status until a new EAD card is sent if we file for a new I-485. What would be the best strategy so that she can still remain and work in the U.S. without breaking any laws?

-What would happen if we file a new I-485 and she continues to work in the U.S. considering that they made an error while denying I-485?

-Lastly where in USCIS website does it say that you need to have I-130 approved for applying to I-485? (I just want to make sure that we have not done a mistake in this matter)

Thank you again!
 
You don’t have a priority date if your I-130 is pending approval. So how could your spouse’s priority date have been current when you filed I-485? The AOS petition was justly denied.

As a LPR, your spouse is not eligible for concurrent filing of I-130 and I-485 which technically speaking is what you did. Only a USC and their spouse are eligible for concurrent file.

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Thank you for your quick reply. We filed for I-130 and we got a priority date based on filing date through a notice of action. Based on her family preference immigrant F2A category we checked the visa availabilities and applied for the I-485 when there were visa's available based on her priority date. So can we not apply for AOS based on the bulletin's F2A priority dates? I have read almost all of the material on the USCIS website but I was not able to find anything there on whether if you can or cannot apply with a pending I-130. I do not know if this was still a concurrent application since we waited until there were visas available based on her priority date. Can you provide me the link to the USCIS website where it states that we should not have filed I-485 while I-130 was still pending based on my status?
 
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Thank you. We used the second table for filing "DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS". Her priority date was November 2017 we applied for I-485 in August 2018.
 
Also thank you for providing the link as well as the location of the statement. Is the exception mentioned in the instructions the fact that when your priority date becomes eligible you can apply for the I-485? It also says that approval of the I-130 petition would make a visa number immediately available. If approval of the petition makes you eligible why publish priority dates? Am I reading this wrong? Did we really make a mistake by filing for I-485 before the approval of I-130?
 
I have also read the additional instructions it says that we should be able to apply when her family preference status has visa availability based on her priority date :
If a visa is immediately available, applicants filing under a family-based preference immigrant category do not have to wait until Form I-130 is approved to file Form I-485. If a visa is immediately available, you may file your Form I-485 together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Otherwise, you may file your Form I-485 only after your Form I-130 is approved and a visa is immediately available.

Please let me know if I am reading this wrong.
 
Every single month after DOS visa bulletin is published USCIS comes up with clarification regarding I-485 filings. There are 2 dates final action dates & date of filing. USCIS clearly specifies which date should be followed for filing I-485. You need to watch these dates & file I-485 accordingly. Watch for 2nd category, country of chargeabilty for your spouse & I-130 priority. If the date shown in visa bulletin is past I-130 filed date, you can file I-485.
 
DKoc said:
Thank you. We used the second table for filing "DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS". Her priority date was November 2017 we applied for I-485 in August 2018.
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DKoc said:
I have also read the additional instructions it says that we should be able to apply when her family preference status has visa availability based on her priority date :
If a visa is immediately available, applicants filing under a family-based preference immigrant category do not have to wait until Form I-130 is approved to file Form I-485. If a visa is immediately available, you may file your Form I-485 together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Otherwise, you may file your Form I-485 only after your Form I-130 is approved and a visa is immediately available.

Please let me know if I am reading this wrong.
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Note that the date for filing is not the same as the priority date being current - that is the date in table 1. This probably means that you are reading the “if a visa is immediately available” caveat wrong, because the date has to be current in table 1 for a visa to be immediately available. Therefore, the next sentence you quoted “Otherwise, you may file your Form I-485 only after your Form I-130 is approved and a visa is immediately available.” is what is applicable in your case. F2A is currently only current to May 2017 - so there is still months to go until a visa is available for your wife. And i130 is not approved.

Without knowing the context, the sentence about the approval of the I130 meaning a visa number is immediately available sounds like it is referring to immediate relative categories (of USCs), not family preference- which is what your wife falls under.

The extract I quoted, from the instructions on the i485 about the petition being approved, is clearly an “and” not an “or”.
 
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Thank you again for your responses, your comments and feedback are very helpful.

Yes, we have used the USCIS' website to determine which table to use. In August 2018 USCIS website stated that we should use dates for filing chart to apply for I-485 adjustment of status. Based on that there were visas available for F2A category for individuals with a priority date earlier than Dec 2017. Our priority date was November 2017 so I assumed that was correct.

SusieQQQ you are correct I have misread that statement as an "or" rather than an "and". However, I still think that my reading of immediate availability is ok (I took that quote from page 20 of instructions that you have posted. On page 20 the additional instructions include instructions for family members of permanent residents.) My understanding of immediate availability is that if your priority date is earlier than the date that is posted then there are visas available for you. Which table you need to use is determined by USCIS on a monthly basis. Meaning that, as Whitemimauz3 stated previously, in the months that they say that you can use dates for filing chart table you can use that table if not then you have to refer to the final action date table. In August website directed us to use the dates for filing chart. The current website for August 2018 also shows the Dec 2017 as the priority date.
 
Again. Table B is the date you can file. It is earlier than table A, which is the date visas are available, because of the time it takes to process. Your lawyer should have been able to explain this distinction to you. There is no visa available for your wife yet because her priority date is not current yet. The description of Table A says: “NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.”. This is what is relevant for you - the date that visas are authorized for issuance. The description for Table B talks only about filing applications. It does not say anything about visa numbers being available, because it is not the table that is used to determine visa availability.

I honestly have nothing else to add. Your wife’s petition is not approved and her visa number is not current. Your current path is going to lead to your wife going out of status, and that alone will make her ineligible for AOS.
 
Sm1smom said:
You don’t have a priority date if your I-130 is pending approval. So how could your spouse’s priority date have been current when you filed I-485? The AOS petition was justly denied.
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The priority date of a family-based petition is the date the I-130 was filed.

Sm1smom said:
As a LPR, your spouse is not eligible for concurrent filing of I-130 and I-485 which technically speaking is what you did. Only a USC and their spouse are eligible for concurrent file.
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Not true. All family-based categories are eligible for concurrent filing, if a visa number would be available were the petition approved at that time.
 
SusieQQQ said:
Again. Table B is the date you can file. It is earlier than table A, which is the date visas are available, because of the time it takes to process. Your lawyer should have been able to explain this distinction to you. There is no visa available for your wife yet because her priority date is not current yet. The description of Table A says: “NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action date listed below.”. This is what is relevant for you - the date that visas are authorized for issuance. The description for Table B talks only about filing applications. It does not say anything about visa numbers being available, because it is not the table that is used to determine visa availability.

I honestly have nothing else to add. Your wife’s petition is not approved and her visa number is not current. Your current path is going to lead to your wife going out of status, and that alone will make her ineligible for AOS.
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Nope. Neither the two tables in the Department of State's visa bulletin (the Final Action Date or the Date for Filing table) are the table that determines whether I-485 can be filed in that month. Rather, every month, USCIS chooses one of the two tables to use as the table that determines whether I-485 can be filed that month. So for AOS filing, there is just one table per month, not two, for each category. For August 2018, for family-based categories, USCIS is indeed using the Date for Filing table, and the date in that one table is indeed "01DEC17" for the F2A category for all countries.
 
DKoc said:
Hi Everyone,

Thank you for reading my questions in advance. I am a permanent resident in the U.S. and I petitioned for my wife by filing I-130 while she was a graduate student and legally present in the U.S. . While I-130 was still pending we filed for I-485 based on our priority date and the fact that she was working in the U.S. with her OPT. Recently we had the interview and found that our I-130 was approved while I-485 was denied with the argument that at the time of our application I-130 was not yet approved. We also received a notification that her EAD card that was given for the I-485 application will be revoked unless we can provide proof that her I-485 is still pending. However, nowhere in the USCIS website it is mentioned that you need the I-130 approved for being able to apply for I-485 change of status. I am also 100% certain we filled out and filed her adjustment of status after her priority date became eligible. Therefore we believe (and my attorney as well) that USCIS erroneously denied her I-485 application. My questions are:

- In this case would applying for a motion to reconsider make her I-485 still pending or would she lose that EAD card no matter what?

-Since her OPT is ending within a month we are worried that she will be out of status until a new EAD card is sent if we file for a new I-485. What would be the best strategy so that she can still remain and work in the U.S. without breaking any laws?

-What would happen if we file a new I-485 and she continues to work in the U.S. considering that they made an error while denying I-485?

-Lastly where in USCIS website does it say that you need to have I-130 approved for applying to I-485? (I just want to make sure that we have not done a mistake in this matter)

Thank you again!
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I agree that it seems like a mistake. Concurrent filing allows the filing of I-485 before I-130 is approved, if a visa number is immediately available, in the way that availability is determined for I-485 purposes. You can probably do a Motion to Reconsider, though that will cost $675. Since it's such an obvious mistake, if you can get an appointment at a local office you might be able to talk to someone and they will raise the issue for you for free, but relying on that might be risky as you might miss the 30-day period to file a motion.

The USCIS Policy Manual, Volume 7, Part A, Chapter 3, section C talks about concurrent filing:

[...] In certain instances, the beneficiary may file an adjustment application together or concurrently with the underlying immigrant petition.

Concurrent filing of the adjustment application is possible only where approval of the underlying immigrant petition would make a visa number immediately available. Concurrent filing of the adjustment application is permitted in the following immigrant categories:
  • Family-based immigrants [...]
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The underlying regulation, 8 CFR 245.2(a)(2)(i)(B-C) goes into more detail:

(B) If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i), section 203(a) or section 203(b)(1), (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary's adjustment application will be considered properly filed whether submitted concurrently with or subsequent to the visa petition, provided that it meets the filing requirements contained in parts 103 and 245. For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition.

(C) A visa petition and an adjustment application are concurrently filed only if:

[...]

(2) the visa petitioner filed the visa petition, for which a visa number has become immediately available, on, before or after July 31, 2002, and the adjustment applicant files the adjustment application, together with the proper filing fee and a copy of the Form I-797, Notice of Action, establishing the receipt and acceptance by the Service of the underlying Form I-140 visa petition, at the same Service office at which the visa petitioner filed the visa petition, or;
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All family-preference categories (F1, F2A, F2B, F3, F4) are in INA 203(a), which is included in that description. It also makes it clear that AOS filed subsequently to the petition (and not necessarily at the same time) can be considered concurrent filing, and that the AOS will be considered "properly filed", and therefore should not be denied for not being eligible to file at the time of filing.
 
newacct said:
The priority date of a family-based petition is the date the I-130 was filed.


Not true. All family-based categories are eligible for concurrent filing, if a visa number would be available were the petition approved at that time.
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I stand corrected.
 
newacct said:
I agree that it seems like a mistake. Concurrent filing allows the filing of I-485 before I-130 is approved, if a visa number is immediately available, in the way that availability is determined for I-485 purposes. You can probably do a Motion to Reconsider, though that will cost $675. Since it's such an obvious mistake, if you can get an appointment at a local office you might be able to talk to someone and they will raise the issue for you for free, but relying on that might be risky as you might miss the 30-day period to file a motion.



All family-preference categories (F1, F2A, F2B, F3, F4) are in INA 203(a), which is included in that description. It also makes it clear that AOS filed subsequently to the petition (and not necessarily at the same time) can be considered concurrent filing, and that the AOS will be considered "properly filed", and therefore should not be denied for not being eligible to file at the time of filing.
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Wow! Thank you! Based on your response, I am more confident about my understanding of the law and our strategy. I am leaning towards filing to reopen. However, the part that I am not so sure is that when we file to reopen would her EAD card issued through the I-485 application still be valid? The attachment we have received states that if we can show the proof that I-485 is still pending then EAD will remain valid. Would filing motion to reconsider make her initial I-485 pending? Considering that motion to reconsider can be a very long process I am worried that when her EAD expires they might also deny renewing her EAD until the I-485 is approved, which would put her out of status at a later date. Is there a chance of this happening?

Another strategy is since it is an error on their part (I have talked with another lawyer he also thinks it is a mistake on their part) is to file a new I-485 with a strongly worded cover letter requesting that they fix their mistake. If they fix it immediately then it is a win; however, if they decide to go with the new filing then she would be out of status during the period from the expiring date of her OPT until she receives a new EAD card. Based on my understanding of the law (which I would accept that my understanding of this portion is not great) since they are at fault she should not suffer the consequences and a legal argument can be made that she can continue to work while waiting for the new EAD card. Is this really a valid option or is it too risky?
 
DKoc said:
Wow! Thank you! Based on your response, I am more confident about my understanding of the law and our strategy. I am leaning towards filing to reopen. However, the part that I am not so sure is that when we file to reopen would her EAD card issued through the I-485 application still be valid? The attachment we have received states that if we can show the proof that I-485 is still pending then EAD will remain valid. Would filing motion to reconsider make her initial I-485 pending? Considering that motion to reconsider can be a very long process I am worried that when her EAD expires they might also deny renewing her EAD until the I-485 is approved, which would put her out of status at a later date. Is there a chance of this happening?
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I believe that Motion to Reconsider is for if you think they made a mistake on a matter of law based on the evidence already submitted, and no new evidence is needed, whereas a Motion to Reopen is when you want them to consider new evidence. So I think a Motion to Reconsider will be more appropriate.

I am not sure whether having a pending motion will delay the revocation of the EAD until the motion is decided. The I-485 technically remains denied until USCIS decides in your favor and reopens the case. But if they do revoke the EAD, I am not sure there is anything you can do. EAD does not have anything to do with "status". Neither having a pending I-485 nor having an EAD gives her "status". However, having a pending I-485 allows her to stay in the US for as long as it is pending, regardless of whether she has "status"; whether she has an EAD is irrelevant.

If her EAD gets revoked, I think she should avoid working until she gets another EAD, as any unauthorized employment would bar her from AOS in her category.

DKoc said:
Another strategy is since it is an error on their part (I have talked with another lawyer he also thinks it is a mistake on their part) is to file a new I-485 with a strongly worded cover letter requesting that they fix their mistake. If they fix it immediately then it is a win; however, if they decide to go with the new filing then she would be out of status during the period from the expiring date of her OPT until she receives a new EAD card. Based on my understanding of the law (which I would accept that my understanding of this portion is not great) since they are at fault she should not suffer the consequences and a legal argument can be made that she can continue to work while waiting for the new EAD card. Is this really a valid option or is it too risky?
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Again, she is "out of status" when her F1 grace period runs out anyway, regardless of whether she has a pending I-485 and regardless of whether she has an EAD. Having a pending I-485 allows her to stay in the US. In her category, I don't think she should work if her EAD gets revoked.
 
Go with MTR route. Since there is an issue about your wife going out of status. If MTR gets accepted then I-485 technically will go in pending status that can help to get EAD.
 
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