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Murthy.com
Question: I am a Chinese with a Ph.D. degree in Mechanical Engineering from a University in California. I have been working with the University as a Research Associate conducting research on a defense department project. I have published more than 10 articles in the international journals, a published review of my achievement by a leading scientist in my field. I thought I deserved a National Interest Waiver EB-2. I filed EB-2 I-140 petition concurrently with the I-485 application in September 2005, immediately prior to the EB-2 visa retrogression for Chinese in October 2005. It was a self petition. To my total surprise, last week, I received a denial of I-140 petition from the Service Center. Along with the decision of denial of National Interest Waiver petition, they also sent me a letter denying my I-485 application. I do not have a H-1B status as I have been working on EAD. I am totally crushed. What will happen with me?
A3: When one files concurrent I-140/I-485, the underlying proceeding for I-485 application is I-140 petition. If EAD and Advance parole applications are also concurrently filed, the underlying proceeding for the EAD and Advance Parole applications is I-485. What this means is that once the underlying legal proceeding of I-140 faces denial, all the concurrently filed proceedings of I-485, EAD, and Advance Parole applications also collapse as they lost the underlying legal foundation. This is what happened in your case. When one faces such denial of I-140 petition, one considers three options: (1) Refiling of I-140/I-485 or (2) Motion to Reopen or Reconsider or (3) Appeal to the AAO of the USCIS. Here, refiling of the concurrent I-140/I-485 is not available as the visa number is not available for your EB-2 priority date for China. Motion to Reopen or Reconsider is available within 30 days of I-140 denial, but decision of the motion can take months or even years. Pending the motion, you will not have any legal status and your unlawful presence clock will keep ticking from the date of denial of initial I-140/I-485 concurrent filing, subjecting you to either three-year bar or ten-year bar from returning to the U.S. once you pass six months or one year from the date of denial. Besides, pending the motion, you will not have any work permit. Neither do you have an advance parole. As for the option of an appeal to AAO, appeal is available only for I-140 denial. The denials of I-485, EAD, Advance Parole are not appealable. Pending the appeal, neither will you have any work permit. The unlawful presence will also keep running pending the appeal to the AAO. The processing times of AAO appeal are substantially backlogged at this time. If the Motion or Appeal is denied, one literally faces the end of a rope for the immigration journey. If the Motion to reopen is filed for I-140 petition and not I-485 application, the approval of the motion may or may not reinstate the I-485 proceedings depending on the discretion of the agency. There is no firm rule or policy as to the consequence of grant of Motion to Reopen of Denial of I-140 Petition on the denied I-485 applications. If the agency exercises a discretion and reintate the I-485 application, the agency will continue processing of the I-485 application. On the other hand, if the agency declines to exercise discretion and require the alien to refile I-485 application, the alien will not be able to refile I-485 application as the visa number has retrogressed. The same is true with the AAO appeal. The AAO does not have any jurisdiction to rule on the denied I-485 application and its reversal of the Service Center's I-140 petition denial will return the I-140 petition with approval. It has been a reality that in most of the cases of grant of motion to reopen or grant of appeal, the Service Centers have exercised a discretion and continued processing and adjudication of I-485 application. But it is a matter of discretion rather than a mandate. Retrogression of the visa numbers pending I-485 thus results in the harsher consequences than the situation where I-485 is denied when the visa number is available. You should immediately seek legal counsel.
