Don't understand the logic here why the law does not provide relief for EB derivative adjustment to protect EB's child? what is the difference between FB's child and EB's child? why they can do conversion while my daughter cannot...?
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CIS denied my daughter's "Motion to Reconsider" ...
- Thread starter lianlian
- Start date
Don't understand the logic here why the law does not provide relief for EB derivative adjustment to protect EB's child? what is the difference between FB's child and EB's child? why they can do conversion while my daughter cannot...?
Jackolantern
Registered Users (C)
If that is your email address, remove it before the spambots pick it up.
I won't be reading through tons of pages of MTR ... I was just hoping you would have seen the key statute or court case referenced in the MTR like INA 1234(a)(b)(c) or JohnDoe vs. INS and be able to list them here.
The lawyer may have swamped them with such a deluge of paper that USCIS really did not take the time to properly read it and consider it, so they ended up denying it for irrelevant reasons. Normally MTR's are very short and to the point, with the extended 100-page stuff reserved for court appeals. If the MTR involves a nuanced legal interpretation requiring dozens or hundreds of pages to explain, rather than a clear mistake that USCIS made, they're going to deny the MTR and leave it to the courtroom to fight out the details.
I won't be reading through tons of pages of MTR ... I was just hoping you would have seen the key statute or court case referenced in the MTR like INA 1234(a)(b)(c) or JohnDoe vs. INS and be able to list them here.
The lawyer may have swamped them with such a deluge of paper that USCIS really did not take the time to properly read it and consider it, so they ended up denying it for irrelevant reasons. Normally MTR's are very short and to the point, with the extended 100-page stuff reserved for court appeals. If the MTR involves a nuanced legal interpretation requiring dozens or hundreds of pages to explain, rather than a clear mistake that USCIS made, they're going to deny the MTR and leave it to the courtroom to fight out the details.
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If that is your email address, remove it before the spambots pick it up.
I won't be reading through tons of pages of MTR ... I was just hoping you would have seen the key statute or court case referenced in the MTR like INA 1234(a)(b)(c) or JohnDoe vs. INS and be able to list them here..
nothing like that, except a copy of RFE issued to one of my lawyer's clients whose fingerprints were rejected two time and the CIS sent out a REF for local police report... the statment my lawyer made in mtr: "the same opportunity was never made to my daughter who was fingerprinted four times, to allow her to submit documentary evidence to so she could obtain an alternative background clearance to satisfy the requirement of her application to adjust status in a timely manner."
the rest are his interpretations to the law and analysis.... my lawyer also attched a CIS interoffice memo from Robert C. Divine (Acting Deputy Director) RE: Legal and Discretionary Analysis for Adjustment. The memo states somewhere: "sometimes a case, especially when coupled with government errors or delay and complelling humanitarian factors, may justify an exercise of discretion resulting in an extraordinary favourable outcome for the applicant... " the point my lawyer made here is "the CIS should exercise its discretion resulting in a favorable outcome for my daughter given the multiple government errors, delays and complelling humanitarian factors, i.e., my entire family is here (they all can apply for N400 next May) & my daughter's case had been pending for almost 6 years w/o decision with numerous cis errors... the cis should apply the relevant laws and provide "expansive relief" ... to recosider its decision...
The lawyer may have swamped them with such a deluge of paper that USCIS really did not take the time to properly read it and consider it, so they ended up denying it for irrelevant reasons. Normally MTR's are very short and to the point, with the extended 100-page stuff reserved for court appeals. If the MTR involves a nuanced legal interpretation requiring dozens or hundreds of pages to explain, rather than a clear mistake that USCIS made, they're going to deny the MTR and leave it to the courtroom to fight out the details.
that's exactly what's happening here... had pulled all of our resource together and got almost the most expensive immigration lawyer in the city for my daughter's mtr which i had naively thought would do the work.... realized that we have been strategically wrong and all of our hard earned money being thrown into water with nothing accomplished except tons of further regrets and unbarable exhaustion. it's very obvious that they (cis) don't want to deal with my daughter's case. this will bring me one more question: should I file Appeal with AAO since it may turn out to be the same result ... since they act like robot.....
wanted to know: If the CIS made no mistake theoretically on my daughter's case according to the INA, is there any chance to turn over this case for the technical reasons (numerous CIS errors and excessvice delays) Going to court seems to be our last resort.
Jackolantern
Registered Users (C)
That doesn't look good then, if the lawyer couldn't find anything in the law or precedent that supports your case other than begging for discretionary relief.
Looks like she should gear up to leave the US before accumulating 180 days since the I-485 denial, then go for H1B stamping at a consulate in October. If granted the visa stamp and allowed back into the US, that would at least enable her to be in the US while fighting over the I-485 denial without accumulating more unlawful presence, and the 6 years of H1B would enable her I-130 to become close to current by the end of it (if she manages to stay employed 6 years, of course).
Still, if she does that she risks being unable to return to the US, but I don't see why that would happen if she leaves before being ordered removed and before accumulating 180 days of unlawful presence. But once leaving the US anything can happen.
Meanwhile contact the Ombudsman and explain your situation concisely and precisely, asking if they can obtain any information about how USCIS decided previous cases where the primary beneficiary became a citizen while a derivative AOS was still pending, especially cases where the parent naturalized when their child was over 21 (and thus ineligible for an "immediate relative" petition). The law is probably silent on this scenario because Congress surely didn't expect this situation to ever occur. So the courts would tend to defer to USCIS interpretation of what to do, as long as they are reasonable and consistent. If there are other similar cases and USCIS approved their AOS, they should have given you the same treatment.
Looks like she should gear up to leave the US before accumulating 180 days since the I-485 denial, then go for H1B stamping at a consulate in October. If granted the visa stamp and allowed back into the US, that would at least enable her to be in the US while fighting over the I-485 denial without accumulating more unlawful presence, and the 6 years of H1B would enable her I-130 to become close to current by the end of it (if she manages to stay employed 6 years, of course).
Still, if she does that she risks being unable to return to the US, but I don't see why that would happen if she leaves before being ordered removed and before accumulating 180 days of unlawful presence. But once leaving the US anything can happen.
Meanwhile contact the Ombudsman and explain your situation concisely and precisely, asking if they can obtain any information about how USCIS decided previous cases where the primary beneficiary became a citizen while a derivative AOS was still pending, especially cases where the parent naturalized when their child was over 21 (and thus ineligible for an "immediate relative" petition). The law is probably silent on this scenario because Congress surely didn't expect this situation to ever occur. So the courts would tend to defer to USCIS interpretation of what to do, as long as they are reasonable and consistent. If there are other similar cases and USCIS approved their AOS, they should have given you the same treatment.
Looks like she should gear up to leave the US before accumulating 180 days since the I-485 denial, then go for H1B stamping at a consulate in October. If granted the visa stamp and allowed back into the US, that would at least enable her to be in the US while fighting over the I-485 denial without accumulating more unlawful presence, and the 6 years of H1B would enable her I-130 to become close to current by the end of it (if she manages to stay employed 6 years, of course).
Still, if she does that she risks being unable to return to the US, but I don't see why that would happen if she leaves before being ordered removed and before accumulating 180 days of unlawful presence. But once leaving the US anything can happen..
Yeah, we are planning to do so.... had applied AP ... just received an email notification for "Approval notice sent." Hope this info will be a real/true thing this time (not like "Card production ordered.")...
Meanwhile contact the Ombudsman and explain your situation concisely and precisely, asking if they can obtain any information about how USCIS decided previous cases where the primary beneficiary became a citizen while a derivative AOS was still pending, especially cases where the parent naturalized when their child was over 21 (and thus ineligible for an "immediate relative" petition). The law is probably silent on this scenario because Congress surely didn't expect this situation to ever occur. So the courts would tend to defer to USCIS interpretation of what to do, as long as they are reasonable and consistent. If there are other similar cases and USCIS approved their AOS, they should have given you the same treatment.
not sure how to contact them (Ombudsman)... wanted to go there (Washington DC office) and explain our situation in person... cannot locate their contact info and/or office address....
As a practical matter, principal's naturalization (at least 5 years after the principal's green card was approved) would normally not occur before the adjudication of the derivative's I-485 application (which usually takes 3 years, at most, given visa number being current); therefore the principal's naturalization usually would not raise any issue with respect to the derivative's applicaiton to adjust status.... i guess this is the reason why the law is silent on this scenario ...
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Jackolantern
Registered Users (C)
She should not use Advance Parole to enter the US. It is not valid for entry, because the I-485 was denied. She needs to visit a consulate and get an H1B stamp in her passport, and use that to enter the US with H1B status.Yeah, we are planning to do so.... had applied AP ... just received an email notification for "Approval notice sent." Hope this info will be a real/true thing this time (not like "Card production ordered.")...
If the visa number remains available throughout, as it was in your case being in EB2 ROW, the I-485 would normally be decided in less than a year.As a practical matter, principal's naturalization (at least 5 years after the principal's green card was approved) would normally not occur before the adjudication of the derivative's I-485 application (which usually takes 3 years, at most, given visa number being current);
Yours may very well be the first case in US history of this occurring. Or at least the first case where there is no straightforward remedy (i.e. if your daughter was still under 21, you could simply file a family-based petition as an immediate relative). If you are not the first, they need to be consistent and approve your case if they have been approving other similar cases (unless the law actually and clearly prevents them from approving yours).
For contacting the Ombudsman, the form 7001 instructions say where you should mail the correspondence.
She should not use Advance Parole to enter the US. It is not valid for entry, because the I-485 was denied. She needs to visit a consulate and get an H1B stamp in her passport, and use that to enter the US with H1B status.
that means she cannot enter US by her A/P? My lawyer told me that the denial decision on her I-485 should not be final until 33 days pass if we don't file appeal... thanks to confirm....
Yours may very well be the first case in US history of this occurring. Or at least the first case where there is no straightforward remedy (i.e. if your daughter was still under 21, you could simply file a family-based petition as an immediate relative). If you are not the first, they need to be consistent and approve your case if they have been approving other similar cases (unless the law actually and clearly prevents them from approving yours).
For contacting the Ombudsman, the form 7001 instructions say where you should mail the correspondence.
thank you Jack.... hope my daughter's case is not the first in US history... and pray to God that I could find similar cases....
not sure if it is a good idea/doable in going to AAO for this kind of inquiry too...
Jackolantern
Registered Users (C)
The denial is not final yet, but right now the status is denied. Until that is overturned, associated documents such as EAD and AP have no real validity.that means she cannot enter US by her A/P? My lawyer told me that the denial decision on her I-485 should not be final until 33 days pass if we don't file appeal... thanks to confirm....
In addition, because she is not in H1B status nor any other valid nonimmigrant status, she needs to leave the US and enter with an H1B visa to acquire H1B status. If she was already in H1B status, she would have been able to reenter with the AP and continue with H1B status. Or just remain in the US with the status.
So if she wants to obtain H1B status, she needs to leave the US before 180 days have passed since the original I-485 denial (in May, correct?), visit a consulate to apply for an H1B visa using her approved H1B petition, and return in October or later (October 1 is when the FY2010 quota opens up to make more H1B visas available, unless she is going to work for a quota-exempt organization such as a university, in which case she can return before October).
The Ombudsman may be able to help you get some statistics on whether there have been any other cases like this and how many were approved or denied. If yours is indeed the first, you might be able to get pro bono legal representation because some lawyers and law firms like to work precedent-setting cases to boost their reputation.thank you Jack.... hope my daughter's case is not the first in US history... and pray to God that I could find similar cases....
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Further resolution on this case?
lianlian-
Can you please let us know how the appeals process proceeded for this case, and if you have been able to get the decision reversed?
Thanks.
lianlian-
Can you please let us know how the appeals process proceeded for this case, and if you have been able to get the decision reversed?
Thanks.
that means she cannot enter US by her A/P? My lawyer told me that the denial decision on her I-485 should not be final until 33 days pass if we don't file appeal... thanks to confirm....
thank you Jack.... hope my daughter's case is not the first in US history... and pray to God that I could find similar cases....
not sure if it is a good idea/doable in going to AAO for this kind of inquiry too...
Matter of O. VAZQUEZ, 25 I&N Dec. 817 (BIA 2012)
An alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Act, 8 U.S.C. § 1153(h)(1)(A) (2006), by filing an application for adjustment of status or by showing that there are other extraordinary circumstances in the case, particularly those where the failure to timely file was due to circumstances beyond the alien’s control.
http://www.justice.gov/eoir/vll/intdec/vol25/3754.pdf
*****************************************************************
Matter of WANG, 25 I&N Dec. 28 (BIA 2009)
The automatic conversion and priority date retention provisions of the Child Status Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002), do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner.
http://www.justice.gov/eoir/vll/intdec/vol25/3646.pdf
******************************************************************
June 21, 2012 http://www.slideshare.net/BigJoe5/alvarez-huerta-v-holder-5th-cir-june-21-2012-cspa-remand-to-bia
An alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Act, 8 U.S.C. § 1153(h)(1)(A) (2006), by filing an application for adjustment of status or by showing that there are other extraordinary circumstances in the case, particularly those where the failure to timely file was due to circumstances beyond the alien’s control.
http://www.justice.gov/eoir/vll/intdec/vol25/3754.pdf
*****************************************************************
Matter of WANG, 25 I&N Dec. 28 (BIA 2009)
The automatic conversion and priority date retention provisions of the Child Status Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002), do not apply to an alien who ages out of eligibility for an immigrant visa as the derivative beneficiary of a fourth-preference visa petition, and on whose behalf a second-preference petition is later filed by a different petitioner.
http://www.justice.gov/eoir/vll/intdec/vol25/3646.pdf
******************************************************************
June 21, 2012 http://www.slideshare.net/BigJoe5/alvarez-huerta-v-holder-5th-cir-june-21-2012-cspa-remand-to-bia
final result for this case?
Hi,
Could you please let us know whats the outcome of this case?
Thanks,
hvm
Hi,
Could you please let us know whats the outcome of this case?
Thanks,
hvm
that means she cannot enter US by her A/P? My lawyer told me that the denial decision on her I-485 should not be final until 33 days pass if we don't file appeal... thanks to confirm....
thank you Jack.... hope my daughter's case is not the first in US history... and pray to God that I could find similar cases....
not sure if it is a good idea/doable in going to AAO for this kind of inquiry too...
Jackolantern
Registered Users (C)
Lianlian hasn't posted anything in the forum since her last posting to this thread.
I know you're concerned about her daughter's case because of the similarity to your situation, but unfortunately it looks like she'll never return to give an update.
I know you're concerned about her daughter's case because of the similarity to your situation, but unfortunately it looks like she'll never return to give an update.
Similar case?
Someone we know is in similar enigma. Worse, in his case- derivative filed for AOS same time as principal and other derivatives in 2003 (EB3). Principal incl. other derivatives adjusted in late 2004/early 2005, and naturalized in 2010. Administrative delays (name-check, file separation, file transfer), and priority date retrogression plagued their case (and plenty of other equitable conditions).
However, during naturalization principal checked with every resource possible- congressional, legal and USCIS themselves and everyone agreed CSPA should protect the derivative even though they can't help with priority date. Every option was exhausted as the derivatives adjustment was the main focus.
Now as PD became current again, congressional resource trying to help was notified that case may be denied due to a similar reason identified in earlier post. It has been a nightmare after 9 years and now just escalates to further levels especially for something which is not even identified in INA and listed in FAM (a resource non-binding on USCIS). Several questions remain from this reference,
1. Difference between adjustment through EB3 in US vs. immigration as PR in consular processes
2. Legal basis of FAM references on USCIS
3. Is pending derivative FTJ or accompanying if i-485 is filed at the same time
4. In Family based immigration CSPA explicitly protects moving from greencard to citizen sponsorship and allows for retention of priority dates, and in cases where the FAM guidelines applies it is beneficial for applicant. Taken "out of context" allows little room for employment based derivatives in limbo
5. Is there a chance that this can be fought in the courts, or is there no alternative to this potentially incorrect interpretation immunized by discretionary powers afforded.
6. Also, notice that the date on this guideline is 9/3/08- does this apply if the filing date is earlier than 2008?
Hope there is help on this. Understandably, this situation was never imagined by congress and is also made worse by the cross-reference to FAM in a employment based adjustment case. If anyone has any suggestions, help is greatly appreciated.
Here is the FAM reference-
9 FAM 40.1 N7.2-4 Effect of Principal Alien's Naturalization on Derivative Status
(CT:VISA-1000; 09-03-2008)
A “following to join” derivative must immigrate to the United States prior to any naturalization as a U.S. citizen. If the alien fails to immigrate prior to any naturalization the citizen must file an immediate relative petition for the family members.
Lianlian hasn't posted anything in the forum since her last posting to this thread.
I know you're concerned about her daughter's case because of the similarity to your situation, but unfortunately it looks like she'll never return to give an update.
Someone we know is in similar enigma. Worse, in his case- derivative filed for AOS same time as principal and other derivatives in 2003 (EB3). Principal incl. other derivatives adjusted in late 2004/early 2005, and naturalized in 2010. Administrative delays (name-check, file separation, file transfer), and priority date retrogression plagued their case (and plenty of other equitable conditions).
However, during naturalization principal checked with every resource possible- congressional, legal and USCIS themselves and everyone agreed CSPA should protect the derivative even though they can't help with priority date. Every option was exhausted as the derivatives adjustment was the main focus.
Now as PD became current again, congressional resource trying to help was notified that case may be denied due to a similar reason identified in earlier post. It has been a nightmare after 9 years and now just escalates to further levels especially for something which is not even identified in INA and listed in FAM (a resource non-binding on USCIS). Several questions remain from this reference,
1. Difference between adjustment through EB3 in US vs. immigration as PR in consular processes
2. Legal basis of FAM references on USCIS
3. Is pending derivative FTJ or accompanying if i-485 is filed at the same time
4. In Family based immigration CSPA explicitly protects moving from greencard to citizen sponsorship and allows for retention of priority dates, and in cases where the FAM guidelines applies it is beneficial for applicant. Taken "out of context" allows little room for employment based derivatives in limbo
5. Is there a chance that this can be fought in the courts, or is there no alternative to this potentially incorrect interpretation immunized by discretionary powers afforded.
6. Also, notice that the date on this guideline is 9/3/08- does this apply if the filing date is earlier than 2008?
Hope there is help on this. Understandably, this situation was never imagined by congress and is also made worse by the cross-reference to FAM in a employment based adjustment case. If anyone has any suggestions, help is greatly appreciated.
Here is the FAM reference-
9 FAM 40.1 N7.2-4 Effect of Principal Alien's Naturalization on Derivative Status
(CT:VISA-1000; 09-03-2008)
A “following to join” derivative must immigrate to the United States prior to any naturalization as a U.S. citizen. If the alien fails to immigrate prior to any naturalization the citizen must file an immediate relative petition for the family members.
Jackolantern
Registered Users (C)
Perhaps the wrong question was being asked. It's not really a CSPA issue, it's an issue of whether naturalization terminates the derivative's ability to adjust status. The same issue could cause I-485 denial for a case where CSPA is irrelevant because the child is still under 21. Granted, it's less of a problem there because it can be remedied by filing an immediate relative I-130 and a new I-485, but it still adds time and money, and the delay in getting the green card could have other consequences such as causing the child to lose eligibility to derive citizenship under the Child Citizenship Act.However, during naturalization principal checked with every resource possible- congressional, legal and USCIS themselves and everyone agreed CSPA should protect the derivative even though they can't help with priority date. Every option was exhausted as the derivatives adjustment was the main focus.
If the I-485 is denied, and the Motion to Reopen or Reconsider fails, then yes it can be taken to court. But who knows what the court will decide. However, at least if there is a court case it can be brought to the attention of Congress who may be persuaded to amend the legislation to ensure continued eligibility for pending derivatives after the naturalization of the primary.5. Is there a chance that this can be fought in the courts, or is there no alternative to this potentially incorrect interpretation immunized by discretionary powers afforded.
Yes, if the guideline or regulation is based on a law that was passed before 2008.6. Also, notice that the date on this guideline is 9/3/08- does this apply if the filing date is earlier than 2008?
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What happened to the case that punter pointed out ????
Hi Punter, My case is similar to the one you quoted and I wanted to know if there was any updated on this by any chance ? Please let me know. I really appreciate that.
Thanks
Someone we know is in similar enigma. Worse, in his case- derivative filed for AOS same time as principal and other derivatives in 2003 (EB3). Principal incl. other derivatives adjusted in late 2004/early 2005, and naturalized in 2010. Administrative delays (name-check, file separation, file transfer), and priority date retrogression plagued their case (and plenty of other equitable conditions).
However, during naturalization principal checked with every resource possible- congressional, legal and USCIS themselves and everyone agreed CSPA should protect the derivative even though they can't help with priority date. Every option was exhausted as the derivatives adjustment was the main focus.
Now as PD became current again, congressional resource trying to help was notified that case may be denied due to a similar reason identified in earlier post. It has been a nightmare after 9 years and now just escalates to further levels especially for something which is not even identified in INA and listed in FAM (a resource non-binding on USCIS). Several questions remain from this reference,
1. Difference between adjustment through EB3 in US vs. immigration as PR in consular processes
2. Legal basis of FAM references on USCIS
3. Is pending derivative FTJ or accompanying if i-485 is filed at the same time
4. In Family based immigration CSPA explicitly protects moving from greencard to citizen sponsorship and allows for retention of priority dates, and in cases where the FAM guidelines applies it is beneficial for applicant. Taken "out of context" allows little room for employment based derivatives in limbo
5. Is there a chance that this can be fought in the courts, or is there no alternative to this potentially incorrect interpretation immunized by discretionary powers afforded.
6. Also, notice that the date on this guideline is 9/3/08- does this apply if the filing date is earlier than 2008?
Hope there is help on this. Understandably, this situation was never imagined by congress and is also made worse by the cross-reference to FAM in a employment based adjustment case. If anyone has any suggestions, help is greatly appreciated.
Here is the FAM reference-
9 FAM 40.1 N7.2-4 Effect of Principal Alien's Naturalization on Derivative Status
(CT:VISA-1000; 09-03-2008)
A “following to join” derivative must immigrate to the United States prior to any naturalization as a U.S. citizen. If the alien fails to immigrate prior to any naturalization the citizen must file an immediate relative petition for the family members.
Hi Punter, My case is similar to the one you quoted and I wanted to know if there was any updated on this by any chance ? Please let me know. I really appreciate that.
Thanks