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DV 2023 AOS (Adjustment of Status) Only

Sm1smom said:
Hmmn! I see a couple of what I think could be potential issues here.

Your immigration file is actually valid and relevant when it comes to getting a GC approval. The entire immigration history gets reviewed before one gets approved, so your IO was correct in terms of letting you know they needed to request and obtain your previous asylum file.

In terms of the issues I see:
(1) Using your asylum based EAD for ongoing employment when the asylum case was already terminated could be an issue. That card automatically became invalid AFAIK following the termination of the pending asylum/removal proceedings (regardless of the listed expiration date on the card). I think you should have obtained a TPS based EAD card once you rolled over into that new status.
(2) The trip you undertook after filing for AOS could cause them to consider your AOS application as abandoned. You were not paroled back on an AOS based AP (which would have put you as AOS pending), you got paroled back with your TPS based AP card, not the same thing as being paroled on an AOS based AP.

I’m not trying to scare you, just letting you know those are some of the issues they need to resolve before approving your case. So hang in there, try to keep the faith and hope for the best. That’s really all you can do at this point.
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Thank you for response. Keeping my Faith up.
 
good evening guy.
i just join the forum do to a friend recommendation, she told me i can get help here. so here is a summary of my story.
i enter the usa in may 10, 2019 with my wife, then she applied for asylum in november 20, 2019 with our lawyer help. she got a rejection notice based on a missing information (on february 2020). then her lawyer applied again and she received a receipt noticed on march 2020. after 160 days we applied for working permit, and we have been using that until now. we applied for TPS and got approved in september 2022. i also won the DV lottery that year. I applied for adjustment of statut, but two days ago, i receive a letter saying that i fell out of statut from november 20 until the date i filed for TPS. and it also said that there is no evidence that I am eligible for the exception under section 245(i). I read a lot on the forum and i think I made a mistake on my application in question 61 where we are being asked if we are subject to public charge. I answered no . so my questions are:

being a derivative under my wife asylum statut didn't give me lawful presence in the USA even if i granted me a working permit?
it that mistake on question 61 affect my application?

My case wasn't denied but instead, it stated that i have 30 days to submit additional information, otherwise, my case will be denied.

what evidence do you think i need?

thank you for your time and patience with me guys.

looking forward to hear your though
 
shirley13 said:
good evening guy.
i just join the forum do to a friend recommendation, she told me i can get help here. so here is a summary of my story.
i enter the usa in may 10, 2019 with my wife, then she applied for asylum in november 20, 2019 with our lawyer help. she got a rejection notice based on a missing information (on february 2020). then her lawyer applied again and she received a receipt noticed on march 2020. after 160 days we applied for working permit, and we have been using that until now. we applied for TPS and got approved in september 2022. i also won the DV lottery that year. I applied for adjustment of statut, but two days ago, i receive a letter saying that i fell out of statut from november 20 until the date i filed for TPS. and it also said that there is no evidence that I am eligible for the exception under section 245(i). I read a lot on the forum and i think I made a mistake on my application in question 61 where we are being asked if we are subject to public charge. I answered no . so my questions are:

being a derivative under my wife asylum statut didn't give me lawful presence in the USA even if i granted me a working permit?
it that mistake on question 61 affect my application?

My case wasn't denied but instead, it stated that i have 30 days to submit additional information, otherwise, my case will be denied.

what evidence do you think i need?

thank you for your time and patience with me guys.

looking forward to hear your though
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I’m assuming you guys entered the US on a visitor’s visa in May 2019? If yes, both you and your wife fell out of status and accrued unlawful presence starting from Nov. 20 2019 (following the expiration of your authorized stay) due to the rejected asylum application which you had to re-file. That subsequently made you ineligible to file for a DV based AOS application. Currently having a valid TPS status did not override the out of status previously accrued. If you had exited and re-entered the US after obtaining your TPS, before filing for AOS, the previous out of status might not have mattered and they might have subsequently overlooked the illegal presence at that point.

Addressing the INA 212(a)(4) issue is actually quite easy - sending in an updated I-485 with the “YES” response selected for that question (and maybe a short note indicating the question was misunderstood) will fix that. The bigger issue is the out of status part. I have no idea as to how you can demonstrate you were not out of status for the noted period.
 
Sm1smom said:
I’m assuming you guys entered the US on a visitor’s visa in May 2019? If yes, both you and your wife fell out of status and accrued unlawful presence starting from Nov. 20 2019 (following the expiration of your authorized stay) due to the rejected asylum application which you had to re-file. That subsequently made you ineligible to file for a DV based AOS application. Currently having a valid TPS status did not override the out of status previously accrued. If you had exited and re-entered the US after obtaining your TPS, before filing for AOS, the previous out of status might not have mattered and they might have subsequently overlooked the illegal presence at that point.

Addressing the INA 212(a)(4) issue is actually quite easy - sending in an updated I-485 with the “YES” response selected for that question (and maybe a short note indicating the question was misunderstood) will fix that. The bigger issue is the out of status part. I have no idea as to how you can demonstrate you were not out of status for the noted period.
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Thank you so much for the information. so basically if i understood it clearly, we didn't know that staying in the usa with a pending asylum is considered as unlawful presence since they basically say in the receipt notice that we are allowed to stay.
The only way to adjust our statut now will be to win the asylum case?
 
shirley13 said:
Thank you so much for the information. so basically if i understood it clearly, we didn't know that staying in the usa with a pending asylum is considered as unlawful presence since they basically say in the receipt notice that we are allowed to stay.
The only way to adjust our statut now will be to win the asylum case?
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Hmmn no, that’s not what I tried to explain. The main issue as far as I can see in this case is not about the pending asylum. The issue is about the period between when your authorized stay expired (in Nov, 2019) and when your 2nd application case was accepted. If your first asylum application had been received and accepted before your authorized stay expired, you will not be dealing with trying to demonstrate you were not out of status during that period.

Yes.
 
Sm1smom said:
Hmmn no, that’s not what I tried to explain. The main issue as far as I can see in this case is not about the pending asylum. The issue is about the period between when your authorized stay expired (in Nov, 2019) and when your 2nd application case was accepted. If your first asylum application had been received and accepted before your authorized stay expired, you will not be dealing with trying to demonstrate you were not out of status during that period.

Yes.
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understood. thank you so much
 
*Sm1ssmom*. thank you for taking your time in this matter. I just went over the rejection noticed that we received during the first application and it basically said that they are considering the original attempted filing date. and when i read the noticed of intend to deny again, it basically says that the unlawful presence was obtained from the date we filed for asylum until the date we filed for TPS. so basically it looks like having a pending asylum is like an accumulation of unlawful statut even if they said that we can remain in the territory.
do you know if there is anything that we can send them to contradic that?
is there anyone in this forum who was able to prove that pending asylum is not an unlawful statut?
 
shirley13 said:
*Sm1ssmom*. thank you for taking your time in this matter. I just went over the rejection noticed that we received during the first application and it basically said that they are considering the original attempted filing date. and when i read the noticed of intend to deny again, it basically says that the unlawful presence was obtained from the date we filed for asylum until the date we filed for TPS. so basically it looks like having a pending asylum is like an accumulation of unlawful statut even if they said that we can remain in the territory.
do you know if there is anything that we can send them to contradic that?
is there anyone in this forum who was able to prove that pending asylum is not an unlawful statut?
Click to expand...
As far as I know, when you have a pending asylum application, you are only "authorized to stay" and do not accumulate "unlawful presence". However, if you do not have any other immigration status, such as F1 or H1B, you are considered to be out of status, which means you do not have lawful immigration status. When it comes to adjustment of status you need to have "lawful Immigration status"
 
shirley13 said:
*Sm1ssmom*. thank you for taking your time in this matter. I just went over the rejection noticed that we received during the first application and it basically said that they are considering the original attempted filing date. and when i read the noticed of intend to deny again, it basically says that the unlawful presence was obtained from the date we filed for asylum until the date we filed for TPS. so basically it looks like having a pending asylum is like an accumulation of unlawful statut even if they said that we can remain in the territory.
do you know if there is anything that we can send them to contradic that?
is there anyone in this forum who was able to prove that pending asylum is not an unlawful statut?
Click to expand...
Okay, so what is the acceptance date noted on the NOA for the second asylum application in that case? Does it say Nov 2019? That is the only conclusive proof that your first attempted date was considered.

Anyway aside from that, what your notice of intent to deny seem to be focusing on is that you were out of status between when your asylum application was pending and you subsequently obtained your TPS status. Yes your pending asylum application legally allowed you to remain in the US without accruing an illegal presence, the fact remains it did not stop you from becoming out of status. If you had any other valid status during that period, you can use it to rebuttal the out of status claim. The out of status period wouldn’t have mattered if the pending asylum application got approved. You can take a look at the Asylum Pending tab/sheet of the AOS Process Spreadsheet where asylum pending status is discussed in more detail.

Like I earlier on explained, if you had exited and re-entered the US after obtaining TPS and before filing for AOS, your case might have had a slight chance of being approved (if the IO fails to closely review your immigration history). Notice I used the phrase ’might have had a slight chance’ - that is because “the departure and subsequent reentry of an applicant who has at any time failed to maintain a lawful immigration status or violated the terms of the nonimmigrant status on any previous entry into the United States does not erase the bar” INA 245 (c) (2) and INA 245 (c) (8).
 
Hi mom, I received my Bio appointment notice and I am deciding to do it earlier. Does it require to call ASC centre to request for earlier appointment or I just can go there with my derivatives and see whether the security allow us to enter or not?
Thank you
 
fahimeh said:
Hi mom, I received my Bio appointment notice and I am deciding to do it earlier. Does it require to call ASC centre to request for earlier appointment or I just can go there with my derivatives and see whether the security allow us to enter or not?
Thank you
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I did my fingerprint in the same day when I received the bio notice, i told them I’m gonna be out of the state in the date of the appointment.
 
fahimeh said:
Hi mom, I received my Bio appointment notice and I am deciding to do it earlier. Does it require to call ASC centre to request for earlier appointment or I just can go there with my derivatives and see whether the security allow us to enter or not?
Thank you
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If an earlier appointment slot was available, they would have assigned it to you. What you got is the official earlier available slot, calling (assuming you’re able to find the phone number for your assigned ASC) will not get you an earlier slot.
 
Hi @Sm1smom , completed my bio on 4/5 and still waiting for IL. I initiated a congressional inquiry & waiting another 2 weeks to hit the 30 day response time for USCIS to respond to my congressional rep.

I connected with a live agent today & was informed that no interview has been scheduled. I was also told that the last update on the case was on 5/31 showing that an appointment has been requested. I asked to clarify what the "appointment" was for & was told that "An interview appointment has been requested but not scheduled."

1) Is it typical to receive an update like that?
2) Anything you advise I do at the mean time (apart from patiently wait)?

Thanks!
 
grantedgogr said:
Hi @Sm1smom , completed my bio on 4/5 and still waiting for IL. I initiated a congressional inquiry & waiting another 2 weeks to hit the 30 day response time for USCIS to respond to my congressional rep.

I connected with a live agent today & was informed that no interview has been scheduled. I was also told that the last update on the case was on 5/31 showing that an appointment has been requested. I asked to clarify what the "appointment" was for & was told that "An interview appointment has been requested but not scheduled."

1) Is it typical to receive an update like that?
2) Anything you advise I do at the mean time (apart from patiently wait)?

Thanks!
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1. It is not unusual for the agents to state anything they feel may one wants to hear, as long as it enables them to quickly round up and end a call/chat.
2. A quick review of the the 2022 and 2021 Timeline spreadsheets shows applicants from your FO did not have to wait as long as you have. The good news is it shows your FO is familiar with DV based AOS applications and the need to expeditiously process them. The long wait you're experiencing may be due to pending background check clearance , hence the yet to be scheduled interview. If that were to be the case, there's really nothing else you can do except "patiently wait", keep your fingers crossed and hope for the best.
 
Hi. I sent my i485 form at the end of April, on May 3rd received notice from USCIS that they received my form, and on May 5th that biometrics is not needed. After that neither notification nor any status update on the USCIS site. CN is current in April. FO - Chicago, IL. Please advise, should I contact USCIS somehow, or better don't do that?
 
Boris01 said:
Hi. I sent my i485 form at the end of April, on May 3rd received notice from USCIS that they received my form, and on May 5th that biometrics is not needed. After that neither notification nor any status update on the USCIS site. CN is current in April. FO - Chicago, IL. Please advise, should I contact USCIS somehow, or better don't do that?
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Do add your data to the Timeline spreadsheet - that will provide the needed insight to your case and enable us better analyze it.
 
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