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

well, I don’t know, expect questions. I know i539 doesn’t specifically ask about a spouse but you can see how an officer would be suspicious of how this process evolved. If your rationale is the marriage had broken down, you may be required to show proof of the bona fide relationship required for a green card as a spouse. arguing technicalities about how you were not even staying with your spouse for the i539 but now want to adjust on the basis of the marriage is not going to go down well imo. Anyway. As to your options.

1 seems pretty much what you intend to do anyway

2 is not going to be an option. It’s really not. Even if your visa is not voided as I believe it already is, they will see your history and I can almost 100% guarantee you will be refused entry. They will know you will try to adjust because you tried to do it before.

re 3, I don’t know anything beyond what is stated on uscis site about I824 processing times, which says 5-15 months. Of course add to that the time it will take to get an interview scheduled at your consulate.
 
@newbie1234
I believe you filed derivative employment based I-485 & missed out mentioning details on 3.a on page 3 & 9.a on page 4 of I-485. If that is the case your only luck is to wait until future months visa bulletin make your priority date to re-file I-485. I don't know if nunc pro tunc will work for you. You can try refiling & see if USCIS accepts your I-485. So until that time you need to maintain status in US or leave country. Your child can also file family based petition for you when he or she reaches 21.
 
@SusieQQQ - thanks a ton. Let me paraphrase what your wrote:

So B1 is or will be voided because non-immigrant intent is suspect now. Agreed. How to check if B1 is voided - call the consulate or visa center?

If I leave now, I can say later (at consulate or CBP entry) that I left right after I got 485 rejection and hence not unlawfully present.
If I wait, and 539 is denied, I have to later explain unlawful presence since Dec 2020 (effective date mentioned in 539)
If 539 is approved and I file 485, I still have unlawful presence but I use 245(k) to stay further and then see how it goes.

Question - do I expect 3 year bar? If 539 is denied, does it mean I overstayed 180+ days since Jun 2020, although I had a pending I-539 and I-485.
 
newbie1234 said:
@SusieQQQ - thanks a ton. Let me paraphrase what your wrote:

So B1 is or will be voided because non-immigrant intent is suspect now. Agreed. How to check if B1 is voided - call the consulate or visa center?

If I leave now, I can say later (at consulate or CBP entry) that I left right after I got 485 rejection and hence not unlawfully present.
If I wait, and 539 is denied, I have to later explain unlawful presence since Dec 2020 (effective date mentioned in 539)
If 539 is approved and I file 485, I still have unlawful presence but I use 245(k) to stay further and then see how it goes.

Question - do I expect 3 year bar? If 539 is denied, does it mean I overstayed 180+ days since Jun 2020, although I had a pending I-539 and I-485.
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No, the voiding is nothing to do with intent. As I already said before, b is automatically voided on overstay. Even if the i539 was successful, the maximum possible extension was to December (6 months) and you have stayed past that. What I also said was that I don’t know how the i485 application would have protected you from December to now, but in my understanding as of date of denial of i485 you have a B visa overstay that is now also unlawful presence. Hence, void. Now some people will argue that it’s not yet unlawful because i539 still pending - but max i539 extension date is already past so I personally believe it is now unlawful.

And please, I said this already, post 7, you need to distinguish between period of overstay vs period of unlawful status for any ban calculation. Either way (denial or granted extension) you are not yet in ban period in my understanding. What I am not sure about is how much unlawful presence you have accumulated since extension date.
 
Thanks again @SusieQQQ - I filed extension in June 2020 - so if denied, it's over 180 days. But it was pending so unlawful presence should count from Dec 2020 (less than 180 days so far). Thus my query on 3 year ban. Your view?
 
SusieQQQ said:
was clearly stated in the post you responded to.
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Yes thanks. I thought you asked for my extension filing date to estimate unlawful presence accumulated days, hence I replied that I filed in June2020.
Supremely grateful. You are extremely helpful. Let me process all this, google more, discuss with spouse, perhaps talk to a lawyer (avoided so far). I wonder if there is another way to reunite family (in my situation).
 
And @SusieQQQ - Since I have unlawful presence any which ways, I may still do this (post #23): If 539 is approved, I file 485 and use 245(k) 180-day exemption for EB immigration, to stay further and then wait for EAD and cross my fingers for RFE/interview.
 
newbie1234 said:
Yes thanks. I thought you asked for my extension filing date to estimate unlawful presence accumulated days, hence I replied that I filed in June2020.
Supremely grateful. You are extremely helpful. Let me process all this, google more, discuss with spouse, perhaps talk to a lawyer (avoided so far). I wonder if there is another way to reunite family (in my situation).
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I think at least a talk with a lawyer is probably warranted. You have certain complications and some apparent contradictions in the case.
 
SusieQQQ said:
I think at least a talk with a lawyer is probably warranted. You have certain complications and some apparent contradictions in the case.
Click to expand...

@SusieQQQ - I consulted and also read about 180 day exemption calculation (uscis.gov/policy-manual/volume-7-part-b-chapter-8).
Suggested option - I resubmit 485 right away instead of waiting for I-539 decision (expected in 2-4 weeks). If I-539 is denied, I can choose to wait for I-485 decision (that may take 8 weeks) or just leave. Whether 539 is approved or denied, B visa is voided, as you also said
 
Also since 485 was rejected most likely due to leaving Part 2, Item 10 blank (like many applicants I think), may I add a letter to USCIS to "use their discretion and pardon a mistake as leaving that field blank meant No by default and hence consider a receipt date of my first submission" etc etc.
 
I still think you need to talk to a lawyer so may as well ask about that while you do. I don’t know if they will accept your error as reason to retain earlier filing date. Priority date is defined as date petition is properly filed. There is no harm asking of course.

problems as I see it: saying you had no immigrant petitions outstanding on i539 when you did (you said you filed i485 based on wife’s existing EB petition which was obviously also in existence at time of i539 filing ) and potential misrepresentation finding as a result, apparently having no bona fide relationship with wife but filed as derivative, trying to figure out how much unlawful presence you have, this is all beyond my lay ability to give advice so I must respectfully bow out at this stage. I know you are in discussion with newacct on another thread and he is probably more knowledgeable than I wrt these issues.
 
@SusieQQQ - appreciate your revert. I did consult a lawyer. I had consulted the same lawyer in Nov2020 & then filed 485 on my own. Got inputs from newacct on how to fill 485. By mistake, I missed Part 2 item 10.

Lawyer's view: 245(k) 180-day clock starts when there is no pending extension application. Since I have a 539 pending, even if retroactive, I can file again and wait. But if 539 is denied, then I will be over 180 days & 485 will get denied or get RFE. And I am reconfirming with newacct.

To your points -
1) when I filed 539 in Jun 2020, I had no 485 filed. Wife's EB petition was approved long back & I was not an applicant. When they decide on 539, they will find a 485 filed later in Nov 2020 so may deny 539.
2) Bona fide relation with wife may result in RFE or interview issues.
3) unlawful presence is an issue for future non-immigrant visas, but I hope not for immigrant petition

Just want to say gratitude and also look forward to your continued advice and inputs on the above.
 
newbie1234 said:
[
1) when I filed 539 in Jun 2020, I had no 485 filed. Wife's EB petition was approved long back & I was not an applicant.
2) .
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this is just not adding up. Again, an i485 is not an immigrant petition. It is an application to adjust status based on an underlying immigrant petition. You either filed a standalone i485 in November because there was already a petition for you, OR you had to have a new petition filed with the i485. You indicated in a post above that you filed using your wife’s old EB, therefore, there was already an petition for you. But now you are saying you were not listed on that. So did you actually get a new I140 filed along with the i485? That’s why I asked what you put down for the basis for adjustment. You cannot adjust in the absence of a petition. I know you didn’t file an i485 by June, that is not what the question was asking.
 
@SusieQQQ - oh I do see what you asked. So wife proved approved 140, green card (551) and I used it to file 485 as derivative. So in 539 Part 4 filed in Jun 2020, it asks if I have ever filed or been an applicant on an immigrant petition or applied for AOS. And I said No, coz I was not an applicant on wife's 140 filed in 2006. But I used principal's approved 140 to file AOS as a derivative. I think it's common for family members to come on B1 and then file AOS as derivative. Am I missing anything?
 
Since spouse has employment based green card, my better options are to file AOS as derivative when in US or file follow-to-join if I am in home country.
I replied to your point about why I did not mention immigrant petition in 539. Awaiting your revert @SusieQQQ - do you still believe my 539 is misrepresented.
 
newbie1234 said:
Since spouse has employment based green card, my better options are to file AOS as derivative when in US or file follow-to-join if I am in home country.
I replied to your point about why I did not mention immigrant petition in 539. Awaiting your revert @SusieQQQ - do you still believe my 539 is misrepresented.
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I don’t know how an IO will interpret the chain of events.
 
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