Dad's I-485 denied, what is the right course of action - appeal or reapply? Please help.

I

ImmiSupp

New Member
Hi, I am a US Citizen and applied for my dad's status change last year Sep 16, 2018. He came to US with B/travelers visa which was valid until June 2020. Got approved advance parole document and approved I-130 . Reason for I-485 denial: 'you re-entered the US with your non immigrant visa without an advance parole document' and is asked to leave the country within 30 days :( :( We travelled outside of US as he had approved advance parole document. While returning we submitted the advance paroled document and his passports at the port of entry. Also explained to the officer that my dad is waiting for his GC and hence the advance parole document. The officer did not open the Advance Parole document and just mentioned that he has his visa valid up until next year so he is good.

What is the best course of action - should we appeal or reapply?
is that he doesn't have a valid status to stay even when we reapply?
What are our chances of getting approval when we reapply?

THANKS MUCH!!
 
Your dad entered the US on a tourist visa applied for a green card. He should leave the US as advised by USCIS, and apply for an IR5 visa via CP.

Listen to the recording of this site's immigration attorney saying never to enter the US with a tourist visa and convert into a green card. He says this is often treated as fraud by the government. *skip to the 28:30 minute mark of the recording where he mentions this topic.
https://forums.immigration.com/thre...nce-call-with-attorney-rajiv-s-khanna.341485/
 
@1AurCitizen,

OMG.. I am different things from different lawyers. What is IR5 visa and will he be eligible to apply immediately?

1. One of the lawyers advised to appeal the decision as we had Advance Parole document during travel?
2. The other lawyer advised not to appeal due to less chance of success yet reapply?
 
Not all lawyers are ethical in their approach to visa/immigration related matters.

An appeal may or may not work, wasting time. Your dad uses the approved i130, contacts NVC to send the file to his home country and be interviewed there. What is his home country?

IR5 visas are for parents of US citizens.
 
So it seems that he left the US while Adjustment of Status was pending after he was granted Advance Parole, and when he returned, he had both a valid Advance Parole and a valid B2 visa, and the officer admitted him on B2 visa. This is the problem. Someone who leaves with pending AOS would automatically abandon AOS unless 1) they were granted AP before leaving and re-enter on that AP, or 2) they had H1b/H4/L1/L2/K3/K4/V status leaving and re-enter on the same type of visa.

Here, the OP's father had to re-enter on AP, and not on B2 visa, in order for AOS to not be abandoned. He had his AP with him at the time of entry, but the officer, in ignorance or mistake, chose to admit him on B2, and the OP's father did not insist on being paroled on AP instead. It seems like it's the officer's mistake, and it seems like something that can be retroactively corrected, since he did indeed have the right documents with him at the time of entry. If CBP agrees to correct the class of admission, it might be possible to reopen the AOS, though I am not sure whether it will work.

He is eligible to apply again, since he entered legally the most recent time, so filing the I-485 (with all the supporting documents) again is a valid approach, though it would be more costly.
 
ImmiSupp said:
@newacct - That's totally correct! He had AP and did present to the officer in port of entry. Thanks for your response! Its very helpful!
Click to expand...

While this admission on B2 vs AP might have been a mistake, we discourage entering on a B2 visa and Adjusting Status. As Attorney Khanna noted in this recording, AOS on a B2 is considered fraudulent by the US government. The best option to apply for a green card is by petitioning a beneficiary and an interview in their home country.
 
@ImmiSupp
My parents are in a similar situation and we’re stamped b2 arrival. Any update on what you did with your father’s immigration? Highly appreciate any input
 
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