FYI - I-485 denial

[fast_gc_seeker]

FYI-

Check the attached file which shows somebody's 485 was denied based on violation of section 245(k) along with 245(i) and 245(a)

 

[needgchelp]

This guy was out of status for more than 180 days, which is why his 485 is denied.

 

[slt]

Wrong!

What this memo says, if you are denied I-485 YOU WILL not be able to reapply, IF your last NON-IMMIGRANT status (!!!!) expired more than 180 days ago. i-485 status does not count.

 

[vetagaadu]

UN...plz respond

Yes, that is also how I read it.

However, as long as you stayed less then six months after the denial of the 485 and you don't get back into a non immigrant visa, you should be able to go the consular route.

So according to this document, person will get approval if he/she is out of status for lessthan 6 months (it is not indicated that it should be LAST entry , it means that person could be out of status for lessthan 180 anytime that he/she was in US...)

am i right ?

 

[nato]

Your interpreation is what we believed so far, but this denial supports what slt said

Yes, that is also how I read it.

However, as long as you stayed less then six months after the denial of the 485 and you don't get back into a non immigrant visa, you should be able to go the consular route.

 

[jambalakadi1]

hi UN,

just for understanding using some dates..

lets lay applicant john applied I-485 on 10-JAN-05 (valid non-immigrant status)
H1-B & I-94 expired on 20-Jan-05

now I-485 denied on 30-JULY-05

are you saying that john CANNOT reapply I-485 because its more than 180 days from H1-B expiration?

If yes, shouldn't be the I-485 AOS period considered "Legal Status" ? why not?

 

[tammy2]

This was first reported on http://www.shusterman.com These are mostly RN cases which were re-filed after initial denial of I-485 because of Visa screen issues. It looks like once the I-485 was denied they are counting 180 days from date of expiry of original non-immigrant visa instead of counting it from I-485 denial date. Attorney Shusteman is going to give details update in his news letter.

 

[nato]

UN another scenario and some more clarifications

say H1-B expires after 10 days of 485 applicationA
Now A is pending for 180 days.
485B is applied on another grounds while 485A is still pending and more than 180 days passed already for H1-B expired.

1)In this situation is 485B a valid filing
2) how does an approval or denial of 485A change the situation

Another case.
The denial above seems to be very confusing. once EAD is used any non-immigrant status is invalidated, so you actuall do not have a non-immigrant status after 180 days, which means anyone using EAD is already prone to above denial
quote from a lwayer
"that if you also file for an EAD based on the I-485 and use the EAD to work, that your are THEN deemed to have brought an end to your H-1B status. "

You have to make the distinction between lawful prescence (period of authorized stay) and status.

When you have a 485 outstanding you are in lawful status.

However, to apply for a 485 you had to be in a NON-IMMIGRANT status no later then 180 days prior to applying for a 485.

 

[nato]

fast_gc Has this guy appealed, looks like not a valid reason for denial

can you post some more dates this is the only dates in the letter

According to the information you provided, you entered the U.S. on January 9,2003, and your valid
nonimmigrant status expired on July 8,2003. You had a previously pending Form 1-485. However, during
the time that application was pending you were in a period of authorized stay, not a valid nonimmigrant
status. Therefore, at the time of filing this 1-485, you were not in a lawful nonimmigrant status.

FYI-

Check the attached file which shows somebody's 485 was denied based on violation of section 245(k) along with 245(i) and 245(a)

 

[nato]

which sounds completely illogical, 180 days should be from denial

otherwise no one can ever use EAD and refile another case, bcos once EAD is used any other non-immigrant status is invalidated..and as per the basis of the above denial eveyone using EAD is already in out of status and needs to depart if denied..ridiculous what can you expect out of these dumb guys

This was first reported on http://www.shusterman.com These are mostly RN cases which were re-filed after initial denial of I-485 because of Visa screen issues. It looks like once the I-485 was denied they are counting 180 days from date of expiry of original non-immigrant visa instead of counting it from I-485 denial date. Attorney Shusteman is going to give details update in his news letter.

 

[nato]

The problem is

that even after 140 is approved, they still are asking questions related to 140 while doing 485 adjustment, like ability to pay and for future job based GC. In this scenrion 485 is not denied due to inadmissability.

Also say 140 approved and 485 denied later on due to something related to 140 e.f ability to pay, exp etc. then the underlying 140 is denied too leaving no room to use the same 140 for CP.

this situation was created by concurrent filing. Before your 485 could only get denied due to out of status or inadmissability issues. If this happened, you couldn't get a greencard so what would be the point of re-applying.

However, this clause never contemplated the 485 being denied because 140 was denied.

 

[tammy2]

after i saw this decision, I researched last night. What AAO stated was correct and within the law.

My suspicion is that since these RN submitted I-140/I-485 without visa screen USCIS might have thought is first I-485 were frivolous.

 

[nato]

diasdv of interfile

filing 2 485 is allowed not recommended due to possible confusion. some people in the forum have done that based on their lawyers reco.

2 140 + 2 485 better than interfile bcos you are covering the base totally and not depending on possible issues with respect to single 140 causing 485 denial.

also once the 485 is approved the other one is automatically cancelled out as I read somehere in the fourm.
f

 

[nato]

Un..

a)So within 180 days it is still allowed under the same rule or some 245K

b)The basic issue is if one wants to use EAD then what are the choices because even if H1-B not expires it is deemed abondoned..as per the lwayer comment I just posted, which also goes back kind of sub to support the thread that H1-B backup useless, if EAD is used.

possible. there was another poster, sent me an e-mail too a few months back.

He was on h-1, he extended but didn't extend wife's h-4.

140 got denied while 485 was pending. Two months after denial of 485, him and wife re-applied 485. USCIS denied his wife's 485 stating that it wasn't filed within six months of expiry of non immigrant status. At the time i thought it was a mistake. Looks now that USCIS/AAO is enforcing this.

 

[nato]

that would make sense..

say H1-B expired for over 1 yr
485 denied today.
have ?? 180 days to get back to H1
QUOTE=unitednations]you have to get back onto h-1 or h-4 before 180 days of date of denial of 485 and then re-apply. I think there is also a grace period of 120 days if you file to get back onto h-1 or h-4 before the 180 days starts towards the 3/10 year bar.[/QUOTE]

 

[tammy2]

you have to get back onto h-1 or h-4 before 180 days of date of denial of 485 and then re-apply. I think there is also a grace period of 120 days if you file to get back onto h-1 or h-4 before the 180 days starts towards the 3/10 year bar.

It depends upon reason of denial too.
If some one who is not clearly eligible to apply in EB1 get denial then they may start counting 180 days since the date his expiry of his previous visa.

 

[pralay]

140 got denied while 485 was pending. Two months after denial of 485, him and wife re-applied 485. USCIS denied his wife's 485 stating that it wasn't filed within six months of expiry of non immigrant status.

This make sense, because if this is allowed then a person can stay pretty long time by just re-applying I-485s one after another.

 

[CSHANKY]

The best route then is to start with a clean-slate, if possible. Which is, to re-enter US with a new I-94 and filing a fresh I-485. That way, all your past sins are expunged and you can readily leverage on the 245(k) - which consider LAST and ONLY LAST entry. I have discussed with several lawyers, some the very best and they agree.

However, exit and re-entry may not be a solution for all. So be VERY careful...and a good lawyer should be always consulted.

Another point - H1 does not get invalidated if you merely "have" an EAD - you have to "use" the EAD to invalidate it. By law, you can renter US on AP and use your prior H1 approval to work.

See.....


05/05/2005: Approaching Summer Travel Season and H-1B Traveling With Advance Parole

on

http://www.immigration-law.com/Archive XI.html

 

[jambalakadi1]

CSHANKY,

But how do some one reenter with valid i-94 when I-485 is denied? you mean yo apply for a non-immigrant visa like H1 or H4?

my wife's H4 is expired and she is on AOS. Can she apply for H1-B now and reenter using H1-B? Will USCIS allow this? what happens to the Pending I-485?
I think being on H status while I-485 is pending is the safest approach.

 

[kv2002]

My case and possibilities?

I asked the same question couple of months ago and UnitedNation answered that my case is safe and qualifies for 245K. But reading the denial case in this thread made me ask this question again. Guys please let me know what you think of my case...Do I have a chance?????

Here is a brief history of my case.

1) We applied for 7th year H1 for me and H4 extension for wife BEFORE our I94 expired, and well after my I94 expired (approximately after 230 days) INS denied my extension application. (H1 was denied since I couldn't prove that my LC was pending for over 365 days then. LC was applied by Company A, but 7th year h1 was applied by Company B). After the denial I got the proper proof from Dept.of.Labor but it was too late. Even they denied our MTR request. Stopped work immediatly.

2) Waited 30 days to file appeal, and meanwhile my Labor with company B got approved and was able to file I140/485/EAD/AP together. (Applications were filed 40 days after H1 was ultimately denied, but 8 or 9 months after I94 expiry. So I really don't know what counts for 245K). After AP approval all my wife could even travel once out of this country and comeback without any hassel using AP. I started working again after receiving the EAD.

I-140 was approved after 3 months and now waiting for the fate of my I485!

My lawyer says my unlawful days started only after the H1 was denied and not after the I94 expired since we filed the H1 before expiration. If thats true I have stayed only 40 days unlawfully/out of status.

I am hoping 245k will cover my case. What do you all think of my case???

Thanks all.

RIR/EB3/PD-08/2003
VSC -
I140/485 R.Date : July/04
I140 - Approved on Oct/04
Code3 FP gave on Mar/05
Waiting (hopefully) for I485 approval......