AOS applicants: Beware!

[kflex]

I was going to post my story in the AOS 2008 thread, but I thought it probably would be more helpful if I posted a new thread. I hope people will learn from this and will not have to go through the same thing.

I am a DV 2008 winner from Asia (AS14xxx) and I am on J-1 with two-year residency requirement. I filed my I-485 application in mid April 2008 because I was instructed by a USCIS field office in California (in July 2007) to file my AOS application as soon as I was granted a J-1 waiver, and I got my waiver in mid April 2008. Everything went well. I had my biometrics done in early May, got the interview letter in late June, and had my interview by the end of July in Maryland (I moved here this January). I was told by the immigration officer in the end of interview that she was going to approve my case, and I will receive my green card in the mail. So I waited for a month, and I received nothing. I made an INFOPASS to ask my case status (although it showed "interview completed, now case under review" on USCIS website) and was told to wait for the mail. The next day (Aug 23), I received a letter from the local office stating that my case has been denied because upon the time the application was accepted (mid April), my visa number was not immediately available. They also attached INA 245 with the denial letter. I made an INFOPASS appointment for the next available date (Aug 29) and told them that I was instructed to file by the officer in California, and they told me the information I was given was incorrect. I also showed them the letter I received after paying my DV fee from KCC stating that I may file my AOS applictaion from Oct 1 2007 until Sep 30 2008, and I was told that the letter is not from the USCIS and they don't communicate with KCC. They told me to do another medical and re-apply. That was it. I think it is very unfair as I followed all the instruction I was given, and my case was denied. I don't think I will make it the second time as there is not enough time left, and in my case it took four months to get the interview. I told the officer that people filed their application before their number was current, and they got their green card. She said that other offices are not doing their job, and that would never happen in THIS office.

So on labor day weekend, I found some information in this forum about filing in advance. I contacted Maconcita as my case was processed in the same office as hers. Luckily, Maconcita filed the application the first day her number became current so her case went smoothly. I made another INFOPASS on Sep 4 trying to show them all the memos I found about filing in advance. I was finger pointed and yelled at in public during the INFOPASS by a very mean officer, and she yelled, "Don't you show me a memo from 1999! It is old! I said you cannot file before your number is current!". I was so humiliated and upset that I immediately contacted a lawyer. I showed my lawyer everything and my lawyer thinks the conflicts between the law (INA245) and the policy is very problematic. She went to the INFOPASS with me the next Monday (Sep 8) trying to explan it to the officer, but they wouldn't listen. Fortunately, my lawyer knows the district director, and the lady in the director's office (I don't know exactly what her title is) said she will contact the headquarter and they should have the answer that afternoon. However, we never received a formal explanation why there is a conflict and how a DV case should be handled, but two weeks later, informally my lawyer was told that people filed before their numbers were currnt, their green cards were wrongly granted by other offices!

I did a new medical and filed a new case locally on Sep 23 (I have a great lawyer who has connection). I had another interview yesterday (Sep 29), and today, the last day of the fiscal year, I got an email from my lawyer congratulating me that my case has been approved. I don't feel happy at all. I just feel very exhausted. It was a very painful process, and IF you let me choose again, I will go for CP. Although people in the higher level of the USCIS office are very nice, most of the INFOPASS people are extremely mean and unprofessional.

While my lawyer is stil waiting for the written explanation from the USCIS headquarter, please don't file your case until your number has become current. The wait is painful already. The denial is much worse, not to mention the money that has been spent and a lot of sleepless nights. Although the policy (or the memo) says you can file in advance and the Chicago lockbox starts to accept all the DV application with the same fiscal year, it doesn't mean they woud not deny your case because YOUR VISA NUMBER IS NOT IMMEDIATELY AVAILABLE UPON THE TIME OF FILING! Don't take the risk even your local office tells you that you can file anytime from Oct 1 to Sep 30. It is the LAW says you cannot!

I am just one of the unwary people who fell into the trap that was set up by the USCIS policy. I hope my story helps. Thanks to Maconcita for your willingness to share. I don't know how to link the memos, so it would be great if someone can help...

And badluck2, your case wasn't that bad...

 

[raevsky]

You were supposed to file I-485 not earlier than on June 6th. That is what the 1999 memo clearly says.
Instead you filed in April. That is the root of the problems.

 

[raevsky]

This number became current in August, and it was published on June 6th as becoming current in the upcoming months. So, you had to wait until June 6th with filing, what you did not follow.
That is in violation of 1999 memo what you did, and that is why your application was denied.
That is not in violation of 1999 memo what the CIS officer did, but rather in compliance with the memo.

That is not because you submitted I-485 before your case became current, but rather because you did it before your case was published as becoming current soon.

However, with the rank number that much it would definitely make more sense to do a CP instead of AOS.

 

[TNDV2008]

That is not because you submitted I-485 before your case became current, but rather because you did it before your case was published as becoming current soon.

The above statement seems to make sense...but my sis-in-law was denied for submitting her I-485 in October 2006, when the published bulletin indicated range for her number becoming current in November 2006...which is contrary to your logic

 

[raevsky]

Are you sure she applied in October 2006 rather than in late September 2006?
Do you have the exact date she submitted her I-485?
What was her approximate rank number including the country she played from?

 

[raevsky]

Maybe you have described this situation earlier here on the forum and you could point a link to that story?

 

[kolja]

I m sorry for you troubles -if its of any help;I 'm wondering where are other forum members to suport you -I got so much flack for my "negative comments " from other forum memebers in the past but here nobody is around (as usual)-my advice for you is to SUE THE A++ OUT OF THEM (I don't care what the next guy woul say )

 

[Johnkent]

USCIS officers do whatever they want as They don't have a clear policy. A few people like me applied 2 months early and never had any problem.
Am glad that you did get the visa thou but its just sad that u had to spend all that money again.

 

[raevsky]

However, I am not aware about any confirmed violation of this policy towards denial instead of approval.
Your case looks different - your application should have been denied, but it was approved. That would not seem a problem to me.

 

[kflex]

Thanks for your comments, raevsky. The answer I got from the local office is that they will deny any case that is filed before the visa number becomes current. So IF I did apply after June 6, my case would still be denied because "upon the time the application was accepted, the visa number was not immediately available." They don't care about the 1999 memo because it is not THE LAW. It is just a policy, and they don't HAVE to follow it.

I know it sounds rediculous, that a federal agncy does things so differently in different offices. According to my lawyer (who has friends in NYC USCIS office), my case would have been approved the first time if I lived in NYC as they don't deny a case like this.

And I did not intend to file early. I did it only because I was instructed to do so. I was too busy finishing up my degree back then that I did not even know I won the lottery until two months later after I received the package. I thought it was one of the junk mail! After I found out I won, I just made an INFOPASS then followed what the officer said. Believe me or not. I was so busy that I did not even have time to double check with ANOTHER officer in Maryland.

 

[raevsky]

Thanks for your comments, raevsky. The answer I got from the local office is that they will deny any case that is filed before the visa number becomes current.

UIn this case I would not be concerned too much because the reason for denial should have been very similar. They could have done an ommission about the reason for denial. Very much possible. Still seems a minor problem for me.

So IF I did apply after June 6, my case would still be denied because "upon the time the application was accepted, the visa number was not immediately available."

Would you be surprised if your case were approved instead? I would not. Because it would have been to be approved.

They don't care about the 1999 memo because it is not THE LAW. It is just a policy, and they don't HAVE to follow it.

They have to follow that policy. In April 2008 that policy was confirmed on a policy level again by USCIS as a valid policy.

I know it sounds rediculous, that a federal agncy does things so differently in different offices. According to my lawyer (who has friends in NYC USCIS office), my case would have been approved the first time if I lived in NYC as they don't deny a case like this.

Possible. Actually, the memo does not require them to deny the case if the deadline is violated. Instead, it requires them not to deny it in case the deadline was not violated.

And I did not intend to file early. I did it only because I was instructed to do so.

Still you violated the deadline. That is not their problem.

I was too busy finishing up my degree back then that I did not even know I won the lottery until two months later after I received the package. I thought it was one of the junk mail! After I found out I won, I just made an INFOPASS then followed what the officer said. Believe me or not. I was so busy that I did not even have time to double check with ANOTHER officer in Maryland.

I beleive you. The policy still prevails.

What seems rather strange to me though is that you mentioned you tried to rely on the memo in your last post. But this memo does not say it should not be denied. My understanding it says it could be denied instead.

 

[kflex]

Raevsky, according to my lawyer, the policy (1999 memo or 2008 stakeholder meeting) is valid; however, the USCIS local office interprets the policy very differently from the general public or the folks at Chicago lockbox. For instance, the USCIS' response to the question in 2008 meeting is that "the I-485 for an applicant with an FY 2008 selection letter that filed now would be accepted assuming all filing requirements, including submission of the appropriate fee and a completed signature were included". The officer at INFOPASS interprets this as "if all the requirements are fulfilled, including the AVAILABILITY of the visa number". If everyone reads it differently, then it is a problem. My case was accepted by the Chicago lockbox because they see my case as all the requirements were met, but my case was denied at the local office because according to the law, the requirements (availability of visa number) were not fulfilled.

Even though the policy is valid, as I said, the local office will deny any case that is filed before the visa number becomes current, based on the law (INA 245).

We are still waiting for the written explanation from the USCIS headquarter. I will surely keep you posted.

 

[kflex]

And I kind of hope that my case was rejected at the lockbox back in April because I would know I was not supposed to file early. It would have saved me a lot of time and trouble and money.

 

[LucyMO]

Your case looks different - your application should have been denied, but it was approved.

his first application was denied (due to policy), but his second AOS application got approved because he filed it after his number became current.

 

[raevsky]

I have just reread the memo. Actually, he way I read it is exactly the way they denied you your AOS. I do ot see any discrepancies.
If you sumbit I-485 before the number is published in visa bulletin, you cannot file your application. That is exactly what they wrote you in the letter.
Your lawyer could have told you a number of different things, yet I do not see a single confirmed case of violation of the policy by USCIS.

The officer at INFOPASS interprets this as "if all the requirements are fulfilled, including the AVAILABILITY of the visa number".

Correct. If in your case the application was filed before June 6th, the officer has to interpret it exactly the way you write. If it were filed before June 6th, the officer has to interpret it differently. That is the point of the memo.
So, from my point of view everybody in fact reads it the same way.

Even though the policy is valid, as I said, the local office will deny any case that is filed before the visa number becomes current, based on the law (INA 245).

How do you know? How many cases do you know when it was denied contrary to the memo? I know none.

We are still waiting for the written explanation from the USCIS headquarter

I have just provided you with a very good explanation. 245 is the right reason for denial in case the deadline is violated.

 

[raevsky]

his first application was denied (due to policy), but his second AOS application got approved because he filed it after his number became current.

If it was exactly like that, it both times complies with the policy.

And, kflex, regarding your lawyer. I have a strong reason to believe she realized from the very beginning you would lose the case. She has just found aclient and did not want to loose you, that is why she agreed to represent you. She definitely had all the rights to do that.

 

[kflex]

Raevsky, I hope you understand that my intention to post my story is to help others not to have to go through what I have gone through. I am not here to challenge anyone or to complain. Like I said, the answer I got from the local office is that IN THIS OFFICE they WILL deny your case if you filed one day before your visa number is current, even though the visa bulletin has been out 75 days before the number is current. And a policy is not the law, and they don't HAVE TO follow it. They should, but they don't have to.

And for your information, no matter what your strong reason was, you are absolutely wrong about my lawyer. She took my case on a pro bono basis, and I am very grateful that I have her as my lawyer.

Again, I posted my story just to help people, not to argue with people about the law or the policy.

Good day.

 

[raevsky]

The thing is that you could have rephrazed what they told you. In your own words. When they were telling that to you it had one sense, and when you are retelling the story, the sense could be a little different. Just because you think the sense is the same.
I still believe your case would have not been denied on that reason had you filed it ON OR AFTER June 6th. That is very logical and that is what is complient with the memo. Of course, there is a possibility that was too late anyway for them to process your case in timely manner. Unfortunately, you have provided no arguments to support you opinion.

 

[raevsky]

And, actually, that is not 75 days, just about 56 days only. From June 6th to August 1st.

 

[raevsky]

Again, I posted my story just to help people

I agree your experience is very helpful for people. However, I think, that proves that this memo should be know and should be followed. That is what I think. If you do not follow the memo, you get into trouble. You got into trouble because you did not follow the memo, not because the memo is not followed by CIS. Everybody who does not follow the memo could get into the same type of trouble. Your story is a good illiustration to this.