CIS denied my daughter's "Motion to Reconsider" ...

[lianlian]

Quote:
Originally Posted by ginnu
"File MTR through good lawyer and your daughter will get I-485 approved.

If the fingerprint is problem then Fingerprint technician can take Fingerprints on Card second time. If Finger prints are rejected three times then you are supposed to get Police clearance from the places you stayed and USCIS sends letter to applicant about that. If they had FP problem why they did not sent letter to go for FP again so that Card can be produced. FYI the card production ordered message comes after I-485 is approved.

Her PD was Aug 2000. Why USCIS did took that much time to approve Derivative Applicant when Primary got I-485 approved and Dervative filed I-485 when Primary I-485 was pending or with primary I-485?. Your lawyer can fight out and can get it sorted.
It is USCIS mistake.
Good Luck!!! "

Can some Master help locate the CIS fingerprint capture procedure... i.e., when CIS is unable to obtain a required FBI criminal background clearance because the alien's fingerprints were rejected two times as unclassified by the FBI, the CIS should request secondary documentary evidence (such as traditional ink and paper fingerprint capture) to satisfy the criminal backgound check requirement of the applicaiton.

This kind of opportunity was never made available to my daughter who was fingerprinted 4 times... otherwise her green card would have been produced before my status change.

Our Motion to Reconsider got denied yesterday....the denial letter has so many errors and the facts are wrong too (they cannot even correctly spell my daughter's two-letter last name...). we have spent over $31K in legal fee for this MTR and the officer who reviewed my daughter's file did not even read it thoroughly:

1) We filed a Motion to Reconsder but the CIS denied "Motion to Reopen" which is something we never filed. Motion to Reconsider and Motion to Reopen are two different things.

2) The denial letter mentions that my daughter should have filed I-485 within a year of the visa becoming available (which was from November 8, 2001 to November 7, 2002).

For Heaven's Sake, my daughter had not been in the country during that period (from 11/08/2001 to 11/07/2002)... She came in May 2003 and filed her I-485 in August 2003 (not September 2003 like the denial letter stated). My green card was approved in June 2003.

.... etc.

just realized that we are dealing with someone who is so irresponsible and careless... obviously they don't care...Our Motion to Reconsider is supported by citations to appropriate statutes, regulations or precedent decisions... while the CIS don't both to answer our questions in our rebuttal brief (particularly the facts and cited regulations and interpretations), but insist on that my daughter is no longer eligible to adjust status as a derivative alien due to my status change from LPR to USC.....

I feel like we are throwing our hard earned money (over $31K) into water and talking to the wall....

WHERE IN THIS WORLD CAN INNOCENT PEOPLE LIKE MY DAUGHTER AND I SEEK JUSTICE...WHERE IS THIS COUNTRY'S SENSE OF FAIRNESS? WE ARE INNOCENT PEOPLE, VICTIMS OF THIS BROKEN IMMIGRATION SYSTEM... MY DAUGHTER HAVE BEEN LEFT OUT WITHOUT ANY OPTION ... WHOM AND WHERE CAN WE GO TO FOR THIS KIND OF UNFAIR CIRCUMSTANCE AND UNFAIR LEGISLATION....WE ARE GOING CRAZY...

 

[Jackolantern]

You'll need to appeal this in court. You need to find a less expensive lawyer and prepare for an appeal. With the unusual nature of the case (naturalizing while derivative is still pending), if you look hard enough you might even be able to get pro bono representation by a lawyer who thinks it is groundbreaking enough to boost their reputation if they win. Or assistance from an pro-immigrant group.

Or if you're paying for it yourself, you might be able to find a lawyer who will take the case for a fixed fee (preferably, with the last part of the payment not made unless the case is completed successfully).

Otherwise, if you're paying per hour you'll need to take more control to contain the costs. Carefully prepare a letter for the next lawyer which explains your situation clearly, with a half-page summary so they can get the basic idea followed by some pages of more details and supporting documents (like the USCIS denials). You want it to be such that by reading your letter plus having a 1 or 2 hour discussion the lawyer can get a complete picture without running up the hours with a dozen back and forth emails and phone calls.

Then take control therafter -- don't just hand over everything to the lawyer to do what they want like it's a blank check. Major stages include writing up arguments for the appeal and appearing in court. At each stage you need to discuss with the lawyer what they will do next, whether the task is necessary, and what sort of money it is expected to cost before they go ahead with it. For some minor tasks you might be able to do them yourself and let the lawyer review the results, rather than having the lawyer do all of it.

File a FOIA request to get your daughter's A-file, to see if it has any evidence of her I-485 being approved, as it might be there given that you saw the approval online in 2007. FOIA requests take 8-12 months to process, but if you have a court date in the near future you can get it expedited. Or for the court case the lawyer may also be able to get a subpoena to make USCIS provide any records related to her apparent approval in 2007.

 

[lianlian]

thank you so so very much and you are truly truly appreciated!!!

Hi Jackolantern,

you are so so great - just came back from my info pass appt with CIS local office and one supervisor told me the same thing -- my daughter's case better go through removal process and to let immigration judge dedcide (but he added 'you can still file appeal if you want.')...

i am going to look as hard as i could for a fixed fee lawyer... debating right now whether we should file appeal with AAO first (can buy some time for us to be prepared for the next step) or just to wait for 33 days to get Notice to Appear ("NTA") to appear before an Immigration Judge. Like you have suggested, I am going to be 'full timed' involving in this case from now on; otherwise our family will be forcec into financial distress.

Our super expensive lawyer had filed FOIA for both my daughter and myself at the very beginning .... the denial letter (for MTR) states: "Although, at that time the users website reflected that the case was approved, two days later previously action taken was cancelled by the Texas Service Center." and the supervisor i spoke to this morning said, "it was a mistake, and your daughter's case was never approved." I told him: " but at least, i was not a USC when my daughter's case was adjudicated." Anyway, it apprears to me that they (CIS) don't want to take any additional efforts in dealing with this unusual / unheard of case...

Wanted to know if we lose at immigration court, what are other/additional options available for my daughter? go to federal court? wanted to have some ideas (in terms of a complete picture) on how each single step is supposed to be handled... thanks for your help again!!!

 

[Jackolantern]

Our super expensive lawyer had filed FOIA for both my daughter and myself at the very beginning .... the denial letter (for MTR) states: "Although, at that time the users website reflected that the case was approved, two days later previously action taken was cancelled by the Texas Service Center." and the supervisor i spoke to this morning said, "it was a mistake, and your daughter's case was never approved." I told him: " but at least, i was not a USC when my daughter's case was adjudicated."

If the initial approval actually happened in 2007 and was a mistake, in court they'll need to say what makes it a mistake.

Wanted to know if we lose at immigration court, what are other/additional options available for my daughter? go to federal court?

I figure you'd have to get the case heard in a Federal District Court.

 

[TheRealCanadian]

Not this again. You still haven't established that USCIS was in error, and that derivative beneficiaries can obtain Permanent Residence once the primary beneficiary is no longer a Permanent Resident.

Or did I miss it?

 

[aaifor]

Can you not file a fresh petition in FB2 category?

Yes i understand that the initial was employment based but what stops you from filing a new one in FB category?

I have heard from friends where someone entered the country on a tourist visa, overstayed illegally for over 10 years.

His parents became legal residents (through long pending FB application) ; gradually becoming US citizens and then filed for PR for their son who was illegal.

And the son did get his GC. And his parents filed his application while he was way over 21, though unmarried.

Your case is no way that bad.

 

[Jackolantern]

Can you not file a fresh petition in FB2 category?

No. If the denial remains, her daughter would be here illegally and would not be eligible to adjust status under FB2.

 

[lianlian]

If the initial approval actually happened in 2007 and was a mistake, in court they'll need to say what makes it a mistake.


I figure you'd have to get the case heard in a Federal District Court.

-- they said it's her fingerprints which the CIS machine cannot read (unclassified by FBI.... something like "her name check was not finished" )


-- where i can locate info for Federal Distric Court... wanted to educate myself a little bit.

thanks again.

BTW, i had filed I-130 for her in June but the waiting time is too long....

 

[Jackolantern]

-- where i can locate info for Federal Distric Court... wanted to educate myself a little bit.

Google for "Federal District Court" and your state name, and you might find the one that covers your state name.

However, given that she probably will soon be in removal proceedings and face an immigration judge, I don't know if that might be held in a different kind of court.

Once you go to court, you want to throw every bit of ammo possible because if you don't raise something in the initial court proceedings there are restrictions on whether you can raise it in a higher court. Throw everything and hope the court agrees with at least one:

- She was already approved in 2007

- You were a permanent resident when her AOS was filed

- Naturalization should not cause the derivative AOS to be denied

- By leaving your daughter's case pending for more than 5 years even though visa numbers were available almost of the time when you were still a permanent resident, USCIS failed their obligation to decide the case in a reasonable time, so this should be remedied by reinstating the AOS and having the judge decide the case in court if visa numbers are currently available for the category, or if visa numbers are not available USCIS should reinstate the AOS and promptly decide the case promptly once visa numbers are available, without denying it because of your naturalization. Or allow her to port your priority date to her family-based I-130 (not normally allowed, but this is an unusual case that may need unusual remedies ... judges have forced USCIS to do unusual things to remedy situations where there was an improper denial).

- Congress did not intend for families to become separated just because a family member becomes a citizen, as family unification is a fundamental principle of immigration law, and the laws and regulations in other situations involving naturalization allow the noncitizen beneficiary to either maintain a pending AOS (even though the category may change, like from F2B to F1), or immediately file a new one.

And your lawyer should quote whatever relevant statutes and regulations and court cases he/she can find.

 

[Jackolantern]

When did your daughter turn 21?

 

[Jackolantern]

His parents became legal residents (through long pending FB application) ; gradually becoming US citizens and then filed for PR for their son who was illegal.

And the son did get his GC. And his parents filed his application while he was way over 21, though unmarried.

He must have benefited from an amnesty like 245(i), because otherwise he would be ineligible to file AOS (as a result of being here illegally) as an over-21 child of a USC.

 

[TheRealCanadian]

- She was already approved in 2007

Was any approval notice ever generated? If they're basing their case on a transient message on the web site, that's not going to get far.

- Naturalization should not cause the derivative AOS to be denied

I'm still waiting for someone to back this claim up. This is really the only legal leg an appeal can stand on, and I don't know if it's even valid.

- By leaving your daughter's case pending for more than 5 years even though visa numbers were available almost of the time when you were still a permanent resident, USCIS failed their obligation to decide the case in a reasonable time, so this should be remedied by reinstating the AOS and having the judge decide the case in court if visa numbers are currently available for the category, or if visa numbers are not available USCIS should reinstate the AOS and promptly decide the case promptly once visa numbers are available, without denying it because of your naturalization.

You cannot petition a Court to order USCIS to do something it has no statutory authority to do. If the law does not allow the granting of permanent residence to derivative beneficiaries once the primary applicant is no longer an LPR, then no such order can be made. The OP should have sought relief earlier.

Or allow her to port your priority date to her family-based I-130 (not normally allowed, but this is an unusual case that may need unusual remedies ... judges have forced USCIS to do unusual things to remedy situations where there was an improper denial).

Unusual is one thing, illegal is another.

- Congress did not intend for families to become separated just because a family member becomes a citizen

Which is why they provided the IR, FB1, FB3 and FB4 categories.

And your lawyer should quote whatever relevant statutes and regulations and court cases he/she can find.

Which is what I've been asking for. The OP seems to be unsure of what the law says, and curiously uninterested in finding out.

 

[Jackolantern]

Was any approval notice ever generated? If they're basing their case on a transient message on the web site, that's not going to get far.

Of course the web site message would be insufficient. But having seen it, it gives a clue that other evidence of approval may be in the A-file, or can be subpoenaed from USCIS records.

I'm still waiting for someone to back this claim up. This is really the only legal leg an appeal can stand on, and I don't know if it's even valid.

You cannot petition a Court to order USCIS to do something it has no statutory authority to do. If the law does not allow the granting of permanent residence to derivative beneficiaries once the primary applicant is no longer an LPR, then no such order can be made. The OP should have sought relief earlier.

Unusual is one thing, illegal is another.

Which is why they provided the IR, FB1, FB3 and FB4 categories.

Which is what I've been asking for. The OP seems to be unsure of what the law says, and curiously uninterested in finding out.

The rest of your responses which "attack" my statements may very well be valid. But I was not asserting that there is solid ground for my statements. I am saying that every relevant argument that is not frivolous (even if it is dubious) should be brought up in case at least one of them sticks with the upcoming court or future appeals, and was just throwing some ideas out there for the OP discuss with the lawyer and possibly in court. If ten non-frivolous arguments are raised, maybe one or two will "stick", and that may be sufficient if the court agrees with it. And arguments not raised in lower courts can be rejected in appeals on the basis that they were not raised before, so it is important to raise them in the lower court if there is a hope of using them later in appeals. Bring up the points and let the court decide (or at least let the lawyer decide against using them), don't filter them out yourself because you think it is weak.

Also note that the idea behind legal remedies is to aim to make things be as if the law was followed all along. If USCIS executed their legal obligations properly, the green card would have already been granted before the OP's naturalization. Courts and USCIS itself have issued remedies that may seem legally funny, including but not limited to those involving "time travel" with nunc pro tunc. What seems illegal to you may very well have a valid precedent.

 

[lianlian]

When did your daughter turn 21?

In October 2005.

My I-140 Immigraiton Petition was current when my I-140 was approved which was Sep., 2001

 

[TheRealCanadian]

The rest of your responses which "attack" my statements may very well be valid. But I was not asserting that there is solid ground for my statements. I am saying that every relevant argument that is not frivolous (even if it is dubious) should be brought up in case at least one of them sticks with the upcoming court or future appeals, and was just throwing some ideas out there for the OP discuss with the lawyer and possibly in court.

Fair enough. The debater in me was thinking ahead to USCIS' response. Apologies.

I don't have much faith for retroactive granting of permanent residence, because there are no provisions for it within the INA except for asylum cases. If one could backdate permanent residence without explicit statutory permission in the INA, there'd be no need for CPSA, we'd just backdate the minor children to a point prior to reaching 21 and all would be good.

However, it is important for the original poster to do some legwork on her own and get the research done prior to going forward with an appeal. An appeal to a Federal District Court is an expensive and significant endeavor, and I'd venture that 99% of the immigration attorneys in practise cannot do it. Unfortunately, less than 99% of the will admit it. You need to know what the points of your appeal will be, which Jackolantern has helpfully started on.

But the next step, lianlian, is you need to determine whether the law is actually on your side, or whether you're attempting to get the District Court to set new precedent. The former is significantly harder, less likely and more expensive. That's why I keep asking you what the law says about obtaining derivative Permanent Residency after the primary applicant is no longer a Permanent Resident. Because that is the core of USCIS' reasons for denial, and that is also your best avenue for success in an appeal. That, of course, assumes that the law is on your side.

I'm amazed that you spent five years sending your attorney money for doing nothing, but it appears you are at risk for compounding your error. You keep mentioning (relatively) irrelevant facts like the age of the child and whether your PD was current. If those were a problem, the I-485 would have been rejected on those grounds years ago. It wasn't, so don't worry about it. Identify the problem at hand and attack it.

Sorry if I don't sound "helpful". I am trying to be, but you're focusing more on sympathy than a pragmatic resolution to your situation. To be entirely honestly, I think you'd be far better served immediately filing an I-130 for your daughter in FB1 or FB3, and demanding that her original priority date be honored, as CSPA seems to allow. That might make the date current or close to it. Failing that, setting a new priority date is good insurance in case the appeal fails (or drags on so long that the PD becomes current before it is finished litigation.) But unless you have a good and realistic appraisal from an attorney before you start the appeal, you'll be back here in a few years having spend $100k on attorneys with nothing to show for it.

Finally, make sure your daughter doesn't accumulate over 180 days of illegal presence, which has been ticking since her I-485 was denied. If she becomes subject to the 3/10 year bars and loses her case, she'll have even bigger problems.

 

[Jackolantern]

I don't have much faith for retroactive granting of permanent residence, because there are no provisions for it within the INA except for asylum cases. If one could backdate permanent residence without explicit statutory permission in the INA, there'd be no need for CPSA, we'd just backdate the minor children to a point prior to reaching 21 and all would be good.

I don't expect that they would actually backdate the green card, as that has other implications like the allocation to visa quotas. But it's not so far fetched that they would fashion a remedy with some sort of retroactive consideration to minimize the damage, like disallowing USCIS from counting the days since I-485 denial until now as illegal presence (something like this was done recently for those in the religious worker category whose concurrent I-485s were improperly rejected).

An appeal to a Federal District Court is an expensive and significant endeavor, and I'd venture that 99% of the immigration attorneys in practise cannot do it.

True. One approach for finding a suitable lawyer for an appeal in District Court is to look at actual decisions and see which lawyers argued them (in addition to the Courts own web sites and Google, some lawyers' web sites list examples of cases they successfully appealed).

But the next step, lianlian, is you need to determine whether the law is actually on your side, or whether you're attempting to get the District Court to set new precedent. The former is significantly harder, less likely and more expensive.

However, as I mentioned in a post above, a precedent-seeking case may attract a lawyer to work pro bono. Still difficult to handle, of course.

That's why I keep asking you what the law says about obtaining derivative Permanent Residency after the primary applicant is no longer a Permanent Resident.

More significantly, the primary applicant becomes a US citizen, which is not the same as other "no longer a Permanent Resident" situations.

Maybe a lawyer can prod USCIS to get some numbers on how many other AOS were in a similar situation and what happened. If the law is silent or ambiguous about this scenario, but USCIS approved those other similar cases, I would expect the court to make them approve this one (unless they have some other reason for denial).

 

[lianlian]

Of course the web site message would be insufficient. But having seen it, it gives a clue that other evidence of approval may be in the A-file, or can be subpoenaed from USCIS records.


The rest of your responses which "attack" my statements may very well be valid. But I was not asserting that there is solid ground for my statements. I am saying that every relevant argument that is not frivolous (even if it is dubious) should be brought up in case at least one of them sticks with the upcoming court or future appeals, and was just throwing some ideas out there for the OP discuss with the lawyer and possibly in court. If ten non-frivolous arguments are raised, maybe one or two will "stick", and that may be sufficient if the court agrees with it. And arguments not raised in lower courts can be rejected in appeals on the basis that they were not raised before, so it is important to raise them in the lower court if there is a hope of using them later in appeals. Bring up the points and let the court decide (or at least let the lawyer decide against using them), don't filter them out yourself because you think it is weak.

Also note that the idea behind legal remedies is to aim to make things be as if the law was followed all along. If USCIS executed their legal obligations properly, the green card would have already been granted before the OP's naturalization. Courts and USCIS itself have issued remedies that may seem legally funny, including but not limited to those involving "time travel" with nunc pro tunc. What seems illegal to you may very well have a valid precedent.

-you are truly truly appreciated, Jack!!!! I do need someone like you to guide me along the way in dealing with this unusual/unheard of case and learning how to communicate with an expensive lawyer which I neither had any experience before nor did any study/reading on immigration law and its associated processes and materials until 6 mons ago when i was told that my daughter's case had problem...your discussion and suggestions here give me very good idea on what to expect, what to be considered, how and why... really really apreciate your time and help.

 

[lianlian]

Fair enough. The debater in me was thinking ahead to USCIS' response. Apologies.

I don't have much faith for retroactive granting of permanent residence, because there are no provisions for it within the INA except for asylum cases. If one could backdate permanent residence without explicit statutory permission in the INA, there'd be no need for CPSA, we'd just backdate the minor children to a point prior to reaching 21 and all would be good.....

-- just don't understand why my daughter does not get protected by CSPA... FB child can convert his/her petition "to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1)." why my daughter cannot do the conversion.... family relationship does not change and she's still my daughter and I am her mother?


"SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS
AND DAUGHTERS OF NATURALIZED CITIZENS.
Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is mended by adding at the end the following:
`(k) PROCEDURES FOR UNMARRIED SONS AND DAUGHTERS OF CITIZENS-
`(1) IN GENERAL- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter''s classification as a family-sponsored immigrant under section
203(a)(2)(B), based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a
family-sponsored immigrant under section 203(a)(1).


See also 8 U.S.C. 1154 (k)(1)

(k) Procedures for unmarried sons and daughters of citizens
(1) In general
Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter’s classification as a family-sponsored immigrant under section 1153 (a)(2)(B) of this title, based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 1153 (a)(1) of this title. "

However, it is important for the original poster to do some legwork on her own and get the research done prior to going forward with an appeal. An appeal to a Federal District Court is an expensive and significant endeavor, and I'd venture that 99% of the immigration attorneys in practise cannot do it. Unfortunately, less than 99% of the will admit it. You need to know what the points of your appeal will be, which Jackolantern has helpfully started on..

-- "99% of the immigration attorneys cannot do it" this is too discouraging and it looks like we'd better to just give it up

But the next step, lianlian, is you need to determine whether the law is actually on your side, or whether you're attempting to get the District Court to set new precedent. The former is significantly harder, less likely and more expensive. That's why I keep asking you what the law says about obtaining derivative Permanent Residency after the primary applicant is no longer a Permanent Resident. Because that is the core of USCIS' reasons for denial, and that is also your best avenue for success in an appeal. That, of course, assumes that the law is on your side..

by reading our MTR (law and analysis section), the law seems at our side according to our lawyer's interpretation on the applicable law.

I'm amazed that you spent five years sending your attorney money for doing nothing, but it appears you are at risk for compounding your error. You keep mentioning (relatively) irrelevant facts like the age of the child and whether your PD was current. If those were a problem, the I-485 would have been rejected on those grounds years ago. It wasn't, so don't worry about it. Identify the problem at hand and attack it..

it's true that my first attoney was doing nothing (for the period before her I-485 interview, which was 5.5 years) ... our big $$$ is spent on the 2nd lawyer who handles everything after my daughter's interview.

BTW, I mentioned the age of my daughter...is to answer Jack's question.

Sorry if I don't sound "helpful". I am trying to be, but you're focusing more on sympathy than a pragmatic resolution to your situation. To be entirely honestly, I think you'd be far better served immediately filing an I-130 for your daughter in FB1 or FB3, and demanding that her original priority date be honored, as CSPA seems to allow. That might make the date current or close to it. Failing that, setting a new priority date is good insurance in case the appeal fails (or drags on so long that the PD becomes current before it is finished litigation.) But unless you have a good and realistic appraisal from an attorney before you start the appeal, you'll be back here in a few years having spend $100k on attorneys with nothing to show for it..

filed I-130 in June 09. thanks for the advice. we are in a dead-end situation and very desperated...any suggestions/comments/advice would be welcome and appreciated (don't want to miss anything and make mistake again...)

thank you again.

 

[Jackolantern]

-- just don't understand why my daughter does not get protected by CSPA... FB child can convert his/her petition "to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1)." why my daughter cannot do the conversion.... family relationship does not change and she's still my daughter and I am her mother?

This is different because it is an employment-based case with a family derivative, not a family-based petition per se.

by reading our MTR (law and analysis section), the law seems at our side according to our lawyer's interpretation on the applicable law.

What is the name and number of the section of the applicable law that was used in your MTR to support your case?

 

[aaifor]

-

"SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS
AND DAUGHTERS OF NATURALIZED CITIZENS.
Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is mended by adding at the end the following:
`(k) PROCEDURES FOR UNMARRIED SONS AND DAUGHTERS OF CITIZENS-
`(1) IN GENERAL- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter''s classification as a family-sponsored immigrant under section
203(a)(2)(B), based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a
family-sponsored immigrant under section 203(a)(1).

Sorry wish i could help but section (1) states an FB immigrant who is an LPR initially and later becomes a citizen.
In your case the initial application was EB hence it cannot be converted into an FB in FB1 from FB2(B) or any FB category at all.

The law unfortunately is very clear, if what you have stated is from the latest INA (Immigration and Nationality Act)