Any body Got I485 denied even after MTR? If so whats the reason?

[wasapproved]

Just for curiosity are there any denials till now even after MTR?
Has any body seen those type of cases? If denied even after MTR what is the reason?
Thanks

 

[desiladka]

I would surely like to know about this. I am going to file my MTR in 1-2 days. I would also appreciate if people who have received denial post here as well with your details.


Thanks

 

[dazzling]

I would surely like to know about this. I am going to file my MTR in 1-2 days. I would also appreciate if people who have received denial post here as well with your details.


Thanks

If you are filing a MTR and or a Appeal (i.e. you are filing a I290-B), then if the officer is not satisfied with the MTR argument, they will send it to the AAO. They do not deny in such cases. If you only file MTR (this is based on your denial letter and what you can file), then there is a possibility of a denial.

So in a nutshell:
1. If you filed only MTR, then yes the MTR can be denied and you can appeal with AAO.
2. If you file MTR/Appeal, then instead of denying the officer will just send it to AAO and let them deal with it.

 

[glenmd]

Hi Dazzling,

Ok that means, If a person responds to NOID(not for a Denial). In that case if the VSC transferes the case to the local office. Is that good or Bad??

Please let me know your response.

Thanks
GlenMD

 

[desiladka]

If you are filing a MTR and or a Appeal (i.e. you are filing a I290-B), then if the officer is not satisfied with the MTR argument, they will send it to the AAO. They do not deny in such cases. If you only file MTR (this is based on your denial letter and what you can file), then there is a possibility of a denial.

So in a nutshell:
1. If you filed only MTR, then yes the MTR can be denied and you can appeal with AAO.
2. If you file MTR/Appeal, then instead of denying the officer will just send it to AAO and let them deal with it.

Does that mean that once I send my MTR and if the officer is still not happy with it, he will not deny but send it to AAO.

Tell us more about AAO. What happens when its transferred to AAO. What actually is AAO? How much time it takes once it gets to AAO?

Thanks

 

[dazzling]

Does that mean that once I send my MTR and if the officer is still not happy with it, he will not deny but send it to AAO.

Tell us more about AAO. What happens when its transferred to AAO. What actually is AAO? How much time it takes once it gets to AAO?

Thanks

AAO is the Administrative Appeals Office in Washington DC. That is the last resort to getting your application approved (unless you want to go to court, and the court will be the last resort in that case). Usually AAO takes anywhere from 6 months to a year to decide on the applications. If your petition has moved to AAO, then most people consider it to be gone because historically it has been seen that AAO only approves about 5%-10% of cases sent to them.

You can read about AAO decisions on some cases here:
What is AAO: http://uscis.gov/graphics/howdoi/aau.htm
Appeal Process: http://uscis.gov/graphics/howdoi/repealdenial.htm
EB2 Decisions issued by AAO: http://uscis.gov/graphics/lawsregs/admindec3/b5/index.htm
EB1 Decisions issued by AAO: http://uscis.gov/graphics/lawsregs/admindec3/b2/index.htm

 

[dazzling]

Hi Dazzling,

Ok that means, If a person responds to NOID(not for a Denial). In that case if the VSC transferes the case to the local office. Is that good or Bad??

Please let me know your response.

Thanks
GlenMD

Usually if the case is transferred to a local office, it will get approved (unless you are doing some fraud). I do not know of any case that was transferred to local office and it got denied. The reason a case is transferred to local office is because they want to interview you and check you out themselves. Also they may want to see originals of some documents that you submitted with your application because they may suspect fraud but have no means to verify one way or the other.

If the office thinks that your case is not approvable, he will deny straight.

 

[wasapproved]

Does this happened to any body and what are the case details?
Thanks for letting us know about this type of cases

 

[MASS NJ]

Dazzling,
What will be the legal status when you file MTR/appeal/go to court?. can you still work on your EAD?

Usually if the case is transferred to a local office, it will get approved (unless you are doing some fraud). I do not know of any case that was transferred to local office and it got denied. The reason a case is transferred to local office is because they want to interview you and check you out themselves. Also they may want to see originals of some documents that you submitted with your application because they may suspect fraud but have no means to verify one way or the other.

If the office thinks that your case is not approvable, he will deny straight.

 

[dazzling]

Dazzling,
What will be the legal status when you file MTR/appeal/go to court?. can you still work on your EAD?

I am not sure if you can use your EAD. Technically your 485 is denied and all related applications are denied, until they are reopened. So you should not work on EAD. If you have a valid H1 (or any other work visa), then you can continue using that. It is recommended that you do not work on EAD. Also if you are out of status (because you do not have a valid visa), then you should leave the country before 180 days have expired, else USCIS will put a lifetime ban on you from entering US. Fighting a case when you are outside the country, may be difficult, if not impossible.

 

[Rejected]

EAD allows to be in status and employed until revoked or expires.

The person is authorized to work and stay in status until the expiry of the current EAD, if the EAD is not revoked when the 485 was denied.

It all depends on the basis for denial.

 

[kamvp]

The person is authorized to work and stay in status until the expiry of the current EAD, if the EAD is not revoked when the 485 was denied.

It all depends on the basis for denial.

My attorney said the same.

 

[dazzling]

The person is authorized to work and stay in status until the expiry of the current EAD, if the EAD is not revoked when the 485 was denied.

It all depends on the basis for denial.

Not correct. Even though they do not send a separate notice to deny EAD and AP, since these are dependent applications they are not valid if the primary basis (i.e. 485) is not valid.

Some lawyers have an interpretation that until the 485 is denied by the AAO, it is not considered completely denied, hence EAD and AP are valid and it is OK to use them.

I had asked this question to my lawyer when my case was denied. She said it is not safe to use EAD and AP if your 485 is denied. She is a very reputable lawyer from a very reputable law firm.

Please read this from a murthy chat:

Chat User : Which is the best option, using AP or H-4 to go out of country and reenter into the USA?

Attorney Murthy : It depends on which option has the greater risk for a particular person. Generally, it is safer to enter on the H-4 if there is a likelihood that the I-485 could get denied. On the other hand, if there is a greater risk that the H1B employer could terminate employment earlier, the AP may provide greater protection. As long as the I-485 is pending, a person is considered in legal status in the U.S. and the EAD allows the person to work legally. The H1B/H-4 provide backup protection if the I-485 gets denied.

Link: http://www.murthy.com/print/chat0614_P.html

Even though it does not say clearly, but it can be inferred from the above that if 485 is denied, everything that is obtained because of pending 485 is invalid.

 

[dazzling]

My attorney said the same.

Please see my post above. Your lawyer is wrong on this one.

 

[Rejected]

Not correct. Even though they do not send a separate notice to deny EAD and AP, since these are dependent applications they are not valid if the primary basis (i.e. 485) is not valid.

Some lawyers have an interpretation that until the 485 is denied by the AAO, it is not considered completely denied, hence EAD and AP are valid and it is OK to use them.

I had asked this question to my lawyer when my case was denied. She said it is not safe to use EAD and AP if your 485 is denied. She is a very reputable lawyer from a very reputable law firm.

Please read this from a murthy chat:

Chat User : Which is the best option, using AP or H-4 to go out of country and reenter into the USA?

Attorney Murthy : It depends on which option has the greater risk for a particular person. Generally, it is safer to enter on the H-4 if there is a likelihood that the I-485 could get denied. On the other hand, if there is a greater risk that the H1B employer could terminate employment earlier, the AP may provide greater protection. As long as the I-485 is pending, a person is considered in legal status in the U.S. and the EAD allows the person to work legally. The H1B/H-4 provide backup protection if the I-485 gets denied.

Link: http://www.murthy.com/print/chat0614_P.html

Even though it does not say clearly, but it can be inferred from the above that if 485 is denied, everything that is obtained because of pending 485 is invalid.

*******************
"IT IS NOT SAFE IS DIFFERENT FROM IT IS NOT VALID." We are talking about a situation where there was an error. It all depends on the case.

The same site says ...
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Question 11. Should I save the time left on my H, in case my I-485 is denied? TOP

Really, each case is different. People who are concerned that they may be laid off or, for whatever reason, that their green card process may fall through, generally prefer to keep their H1B status in order to be able to file an H1B transfer with a new employer in case the I-485 is denied. Since AC21 law was passed in October 2000, a person may be able to extend the H1B beyond the 6 years under certain circumstances. For example, if a labor certification was filed more than 365 days ago, the person will generally qualify for an H1B extension beyond the 6 years if s/he has maintained H1B status. AC21 law may also enable a person to keep the I-485 going even after losing his/her job, based on a similar job offer from another employer.

If the applicant plans to take a job on the side or start his/her own business on the side, then the applicant would be required to obtain the EAD to work legally and the client would not be considered to be maintaining H1B status. However, it may still be possible to extend the H1B under certain, limited circumstances. Also, if the applicant has been holding H-4 status, but now wants to work and has obtained an EAD, it would then not make sense to extend the H-4 because that would be a non-working status. Some companies are, understandably, reluctant to incur the expense of extending the H1B after the I-485 is pending and the employee has obtained the EAD card to work because it is generally not necessary to extend the H1B to maintain status or to work. In general, I-485 denials are rare, but they do occur, especially if the person has any criminal record, failed to maintain status or is subject to the 3- or 10-year bars (and is not protected under 245(i) of the INA), or has a medical condition that could prevent or delay I-485 approval, or has been laid off and is unable to find same or similar employment with another sponsor.

***********************
"In general, I-485 denials are rare, but they do occur, especially if the person has any criminal record, failed to maintain status or is subject to the 3- or 10-year bars (and is not protected under 245(i) of the INA), or has a medical condition that could prevent or delay I-485 approval, or has been laid off and is unable to find same or similar employment with another sponsor."

Nowadays the denials are mainly because of error which doesn't fall under the categories mentioned above and the web site doen't cover that dark area. The cases and issues are different.

Pls note, I'm not trying to comment on the web site.

The validity of the EAD depends on the reason for the denial and the error. To issue an EAD, 485 should be in pending status and not always vice versa. Unless the EAD is revoked or expires it is valid.