485 rejection notice, but still within 180 days of I-94 expiry, can file again?

N

newbie1234

Member
My I-485 as derivative spouse (F2A category) filed in end-Nov, got rejected with 'additional alien worker information required' and I realized Part 2, item 10 was incomplete.

Now my I-94 was till June 2020, I filed I-539 for B1 extension till Dec 2020, and it remains pending, although it is not beyond that date too. But IF I-539 is APPROVED soon, it is still less than 180 days after last I-94 expiry if I want to file I-485 again and take benefit of 245(k)

So can I wait till I get I-539 decision OR should I leave the country?
 
My post is unclear & had a typo, so I rewrite it below:
My I-485 as derivative spouse (F2A category) filed in end-Nov, got rejected with 'additional alien worker information required' and I realized Part 2, item 10 was incomplete.
My last I-94 was till June 2020, and I-539 for B1 extension till Dec 2020 is still pending. If I-539 is APPROVED, it will be still less than 180 days after the new I-94 expiry so can I take benefit of 245(k) and file I-485 again? Also will I be technically out of status coz I-539 is till Dec2020 and its already Feb2021?
So can I wait till I get I-539 decision and then file 485 again, OR should I leave the country?
 
Doesn’t 245k only apply to employment based AOS? You are F2A? But in F2A spouse is principal not derivative so I am slightly confused as to what basis you are actually adjusting.

You are already out of status by two months even if the i539 to December is retroactively approved. unless I am missing something important (like the actual basis on which you are adjusting being employment based) I don’t understand why you haven’t left already.
 
Last edited:
@SusieQQQ - sorry my post is still unclear. You are right, I applied employment based as derivative of spouse who already got EB green card 3 yrs back. I was living in home country, entered US on B1 with I-94 valid will June 2020, filed I-539 extension (which is pending, and filed AOS in Nov 2020 (which got rejected as I mentioned above). Now, shall I wait for I-539 retroactive approval to Dec 2020 and file corrected AOS again?
 
@SusieQQQ - if I-539 denied, then I will leave and maybe face a ban/issue on re-entry coz of out-of-status between now (when I received 485 rejection) and my actual departure date. I expect I-539 decision in 2-4 weeks based on processing times.
Bigger issue for me is - if I-539 is approved to Dec 2020, am I even eligible to file corrected I-485 again? 245(k) says 485 is eligible if filed 180 days from last I-94 expiry and any prior OOS days is not counted. Hence asking. I can take that chance even if it seems tricky.
Thanks a ton for your prompt advice!
 
I don’t know enough about 245k to comment on that angle, sorry. on the face of what you’ve stated it sounds it will be ok if i539 is approved, but I don’t know enough about it.

Btw: You also need to define the difference between “just” out of status (which you have been since June, though it would retroactively have been reinstated as in status till Dec if I539 approved) and actual unlawful presence, which is what is relevant for a ban and would not count while i539 is pending. See the USCIS pamphlet on i539 for more explanation of that distinction.
(What I am not personally clear on is if the entire period while i539 is pending is protected against unlawful presence, or if it is just for the maximum 6 months you can get an extension for, or how having filed for i485 and then getting that rejected affects the status in between December and now)
 
@SusieQQQ - all very valid points. Thanks. As of now, I am not anxious about future re-entry issues. Worst case, I face a 3 year re-entry issue.
As of now, I am only thinking if I wait till I539 decision and if its approved, then whether I can resubmit I-485 basis 245(k) which allows 180 days since last valid I-94, not counting any prior overstays.
(I have never overstayed in past dozen visits during last 5-6 years on B1. This time, I did this to reunite with spouse & child - just FYI)
 
newbie1234 said:
@SusieQQQ - your point made me ponder and I wanted to seek your input - is I-539 non-immigrant extension (that's still pending) likely to denied if I declared immigrant intent by filing I-485 in the meantime.
Click to expand...
If the decision on the i539 has not yet been made I think it might affect it. Even without that it depends on your stated reasons etc, and having a wife and child in the US may already have raised questions. When did you submit the i539 btw? I’ve seen a number of reports on i539 decisions in the past couple of months and whether positive or negative they have usually come within 6-8 months. I presume you have been checking case status online as well as waiting for a physical notification?
 
@SusieQQQ - my reason was flights shutdown due to covid when I filed in June 2020. I attached proof of funds & visitor health insurance, and stated I am staying with my sibling (which I am). No mention of spouse & child when I filed I-539. It's only in Nov 2020, that my spouse & I agreed that I file AOS as a derivative.
I have been checking I-539 status online. Currently, in processing times, it shows processed till early-May 2020 so my I-539 receipt date of mid-June 2020 is not too far.
Any thoughts?
 
newbie1234 said:
@SusieQQQ - my reason was flights shutdown due to covid when I filed in June 2020. I attached proof of funds & visitor health insurance, and stated I am staying with my sibling (which I am). No mention of spouse & child when I filed I-539. It's only in Nov 2020, that my spouse & I agreed that I file AOS as a derivative.
I have been checking I-539 status online. Currently, in processing times, it shows processed till early-May 2020 so my I-539 receipt date of mid-June 2020 is not too far.
Any thoughts?
Click to expand...
what did you answer to,part 4 questions 3 and 4?
 
@SusieQQQ - as a summary, I think I have 3 paths:
A. If I leave now (when I just got my rejected I-485), I will have to explain to CBP at next re-entry that I filed I-539 & later I-485 in time and then CBP may void my visa & send me back or even impose 3 year ban.
B. If I wait till I-539 is denied and then leave, I need to additionally explain why I stayed beyond 485 rejection date?
C. And if my I-539 is approved, then I can file correct AOS again and stay.
Any other path? Thoughts?

PS - If I leave, can I file for consular processing as a derivative of EB based LPR spouse? If so, what forms are to be filed? I assume spouse just needs to file I-824 follow to join and need not file I-130 or I-864 etc. And this 824 then takes 2-3 years before I go for consulate interview?
 
newbie1234 said:
@SusieQQQ - I see your point. I answered No to Part 4, Item 3,4,5 - because at the time of filing I-539 in June 2020, I had no immigrant petition. Now if they process it now, the system will/may show that I filed a 485.
Click to expand...
But what was the basis of the i485? It requires an underlying petition (see part 2) - it is not a petition itself. If you were a derivative on an existing petition, which it seems you were to be able to file i485, the answer should have been yes.
 
Last edited:
btw: My understanding is that your B visa is already voided because even if the i539 is approved you have stayed beyond the extended date. Even if that is an incorrect understanding, given your history with past i485 filing on a B entry anyway, your chances of being allowed back in on a B visa are very close to zero in my opinion.
 
SusieQQQ said:
But what was the basis of the i485? It requires an underlying petition (see part 2) - it is not a petition itself. If you were a derivative on an existing petition, which it seems you were to be able to file i485, the answer should have been yes.
Click to expand...

@SusieQQQ - I filed 539 in June 2020 to extend my B1 stay, and LATER filed 485 in Nov 2020 with my spouse's green card as underlying petition.
Part 2Q 3,4,5 on I-539 asks whether any applicant (that's me) has any immigrant petition/visa ever - in June 2020 when I filed it, there was none. So I answered No.
Was my understanding correct?
 
[
newbie1234 said:
@SusieQQQ - I filed 539 in June 2020 to extend my B1 stay, and LATER filed 485 in Nov 2020 with my spouse's green card as underlying petition.
Part 2Q 3,4,5 on I-539 asks whether any applicant (that's me) has any immigrant petition/visa ever - in June 2020 when I filed it, there was none. So I answered No.
Was my understanding correct?
Click to expand...
maybe I misunderstood what you said earlier. So, what did you check off in part 2 of the i485? I130 family based, i140 employment based? There must have been something filed with you listed as either a principal or derivative with or before the i485, to be able to file an i485. Did you file the i485 by itself based on an existing petition, or did you file a new petition with it?
 
newbie1234 said:
- and stated I am staying with my sibling (which I am). No mention of spouse & child when I filed I-539.
Click to expand...
I also have to say, this part has kept bugging me. you’d been in the US almost 6 months, applied for another 6 months, did not mention the spouse yet later applied for adjustment based on the spouse, should you get to an i485 interview I think this is likely to raise questions in the mind of a USCIS interviewer with your whole file in front of him/her as to whether there was a material omission in the i539 application.
 
SusieQQQ said:
I also have to say, this part has kept bugging me. you’d been in the US almost 6 months, applied for another 6 months, did not mention the spouse yet later applied for adjustment based on the spouse, should you get to an i485 interview I think this is likely to raise questions in the mind of a USCIS interviewer with your whole file in front of him/her as to whether there was a material omission in the i539 application.
Click to expand...

@SusieQQQ - you raised 2 queries. Thanks. This 2nd query first - I-539 does not ask about spouse. It just asks your US address and reason to extend (covid flight shutdown). B1 visa application (which I filed 5 yrs back in home country) asks about spouse name/address where I stated correctly with spouse's US address. Even the CBP entry form doesn't ask about spouse. Whenever I visited US, I stayed with sibling and only on this visit, much after I filed 539 in June2020, my spouse & I agreed in Nov2020 that we reunite and I file I-485 with her underlying I-140 & green card.

Now to your 1st query - when spouse filed her own EB I-140 in 2006, and later I-485 in 2017 etc, I was mentioned in her petition as a spouse with our 1994 marriage date, BUT I was not an applicant in her I-485. We were living separately, she in US and I was in my home country out of our will without any legal recourse. We also have a child (now a teenager), a US citizen who lives with spouse. Going further back, I entered US first in 1999 on H1, spouse on H4. I left after completing H1 period, spouse stayed in US and moved to H1 then EB based GC.

That said, I hope we will convince officer if we reach interview. It's a family trying to reunite, after separating during a 25 year old marriage.

As of now, my concern is this @SusieQQQ -
1) wait for I-539, and if approved then file I-485 again using 245(k);
2) leave and try to enter again on B1 (if not voided), then file I-485 after 90-day rule;
3) leave and try for consular processing (I asked you above if I-824 follow-to-join is enough)

Any other options you can suggest? I will be supremely grateful to you. File I-485 & write to US congress representative? I also was reading about I-601 for some inadmissability waiver etc.
 
You must log in or register to reply here.
Top