Adjustment of Status denied

[anujo2080]

Hi,

My mother-in law sponsered my husband in 2001 for a Green Card. She was a Permanent Citizen of the US then, and my husband was not married and here in India. However, now my mother-in-law is a US Citizen and she was advised by the people at INS in the US, that she can go in for an 'Adjustment of Status' for the previous application and provide the additional information (wife's name and children's name). They also informed her that inspite of going in for an Adjustment of status for an application which was meant for 'unmarried son above 21 years of age', they would protect the date of application (April 2001) and that their priority date would be in accordance to it.

The priority date for our application has already come. Yesterday when my mother in-law went to meet those guys at INS again, the customer care guys there said that they wouldnot be able to help much and that the application will get rejected. There is no scope for adjustment.

We are very heart-broken now. We were told that our priority date, and the date of application would be protected and that they would consider the case since its been 7 long years and it's obvious that one can get married in a span of time.


Please help me understand this situation. Is there something we can do to mend this situation? Is there a possibility that our application can be considered (we still haven't heard anything official from the main office in California)?

Let me know something at the earliest please

Thanks

anujo2080

 

[boatbod]

Sounds like you and your husband were married before your MIL became a USC? If so, the I-130 petition for you MIL's "unmarried son/daughter over 21" became void and it will not be possible to modify it.

If however, the marriage took place after your MIL obtained her US citizenship, if will be possible to upgrade the petition to FB3 category.

 

[TNguy78]

We are very heart-broken now. We were told that our priority date, and the date of application would be protected and that they would consider the case since its been 7 long years and it's obvious that one can get married in a span of time.

I'm sorry to hear about your situation. But as soon as you and your husband got married, he no longer fell under the category "unmarried son/daughter over 21". To remain in that category, not only did he have to be unmarried at the time of filing, but he had to remain unmarried thoughtout the entire processing period until his application and adjustment had been approved.

He is now in the FB3 category. However, I wonder if there is a way to appeal the denial and have the petition changed to a FB3 category. I know your priority date isn't current for FB3, but it's closer than having to start all over again.

 

[PraetorianXI]

We are very heart-broken now. We were told that our priority date, and the date of application would be protected and that they would consider the case since its been 7 long years and it's obvious that one can get married in a span of time.

Obviously someone could get married, but doing so, he/she would know that his/her I-130 petition will become either void or downgraded... nothing new in that. You can not expect to get "the best of both worlds". He should have known better.

 

[LucyMO]

He is now in the FB3 category. However, I wonder if there is a way to appeal the denial and have the petition changed to a FB3 category. I know your priority date isn't current for FB3, but it's closer than having to start all over again.

there is nothing to appeal. They haven't been denied yet because they didn't file for AOS yet, because they don't have a basis for it. If they file for AOS based on the void I-130, their I-485 will be denied (and USCIS will take the money).

 

[austriacus]

anujo2080, did you get married before your MIL became a citizen? Are you in the US now or elsewhere? I'm assuming you're not from Mexico or Philippines, correct?

 

[Triple Citizen]

What took palce first, your marriage or your mother-in-law's naturalisation?

Let me know something at the earliest please

 

[anujo2080]

I got married before my MIL became a US citizen.

 

[boatbod]

I got married before my MIL became a US citizen.

The original petition became void at the time you married. There is nothing you can do to resurrect the original priority date.

 

[Jackolantern]

Isn't it possible to file a new I-130 based on the new category, but retain the priority date of the old one?

 

[TheRealCanadian]

Isn't it possible to file a new I-130 based on the new category, but retain the priority date of the old one?

Based on what I've read, I think it's quite likely provided it's by the same petitioner.

 

[Triple Citizen]

Worth a shot. I believe this forum is still awaiting the first iteration of such a case. Jury is out on this one....still

Isn't it possible to file a new I-130 based on the new category, but retain the priority date of the old one?

 

[anujo2080]

can we actually try doing that? Can my MIL file a I-130 again and keep the old priority date protected?....what are the chances of this thing working in our favour?

Thanks to all of you for answering my question

 

[TheRealCanadian]

can we actually try doing that? Can my MIL file a I-130 again and keep the old priority date protected?....what are the chances of this thing working in our favour?

Well, no one that we know has actually done this before, but it's worth a shot. Nothing says you lose the old PD, and from what's been posted here from the State Department documentation, if the new I-130 is applied for using the same petitioner as the old one, the PD should be carried over.

I would send in a copy of the old I-130 approval notice and write in bold letters on top of the new I-130 and the cover letter "PRIORITY DATE PORTABILITY" and see what happens.