Grandfathering in under 245i - immediate lawyer advice needed please!

Z

zstar

Registered Users (C)
My father in law became perm res. In 1993
He filed for my wife as unmarried daughter/under 21 in 1994
I-140 was approved
He never filed for I-485 not knowing that it had to be filed.
We got married 1998 – and everyone said that petition is dead as she is married now and over 21
My f-in-l became us citizen in 2003 and filed for another petition for my wife as married daughter/us citizen/over 21
Petition was approved recently
Last month we received a letter from Ins revoking the initial I-140 approval filed in 1994 and she is married now.
According to 245i we should still be able to grandfather in even it was revoked as it was "approvable when filed,"
We want to file for our 485, including me as an after acquired family and grandfather the old priority date ( 1994).
My lawyer is saying that it will be denied as the 1994 petition was later revoked and he wants to file a letter to HQ instead asking for the revocation to be suspended. Because INS should have change the category to married daughter of US citizen instead of revoking it all together.

My question is, it is very clear that the revocation doesn’t count on family based filing as 245 I supports "approvable when filed," and thus we should be able to grandfather in.
Can I get an expert 2nd opinion on this from someone please?
 
zstar said:
My father in law became perm res. In 1993
He filed for my wife as unmarried daughter/under 21 in 1994
I-140 was approved
He never filed for I-485 not knowing that it had to be filed.
We got married 1998 – and everyone said that petition is dead as she is married now and over 21
My f-in-l became us citizen in 2003 and filed for another petition for my wife as married daughter/us citizen/over 21
Petition was approved recently
Last month we received a letter from Ins revoking the initial I-140 approval filed in 1994 and she is married now.
According to 245i we should still be able to grandfather in even it was revoked as it was "approvable when filed,"
We want to file for our 485, including me as an after acquired family and grandfather the old priority date ( 1994).
My lawyer is saying that it will be denied as the 1994 petition was later revoked and he wants to file a letter to HQ instead asking for the revocation to be suspended. Because INS should have change the category to married daughter of US citizen instead of revoking it all together.

My question is, it is very clear that the revocation doesn’t count on family based filing as 245 I supports "approvable when filed," and thus we should be able to grandfather in.
Can I get an expert 2nd opinion on this from someone please?
Click to expand...

Sounds complicate,

Try here:

http://www.immigrationportal.com/forumdisplay.php?f=18

Good Luck
 
When you say I-140, do you mean I-130? that is the petition for an alien relative if you are talking about family based. I-140 is petition for an alien worker...

The I-485 in this case just can be file if the applicant not the petitioner is inside the US and in that moment the priority date is current and there is a visa number available.

If she married while she was waiting for her visa number and priority date since your father in law was a permanent resident, she lost that opportunity because she got married and that petition gets void since permanent resident CANNOT petition for married sons and daughters.

Revoke means that previous approval are void. So there is nothing to do IF it was filed, revoke means that the approval of that petition is void. Yes, the 245 means IF a petition was filed, the problem that you cannot continue a 245 without the first part that is the I-130. The 245 is dependant of the first one.

Sorry , you cannot file a 485 pending in something that is revoke. And second, you don't retain the priority date of 1994 since she got married and that petition is void. Your father in law became a USC in 2003 and your wife got married in 1998 see? IF she waited until 2003 and married THEN things were different and the your FIL could upgraded the case. That is why your FIL had to file another petition since the previous one is not valid anymore and not because USCIS only said so, the law states that a US LPR cannot apply for married citizens.

Good luck,
 
To put even in a more simple way, if a person file a petition for a relative (I-130) and the applicant can file an adjustment of status (I-485 Based on the conditions of the I-130) BUT the I-130 does not get approved, the I-485 gets cancel.

The 245 it is part of the law that allow you to file for AOS if you had a previous application as a relative prior to April 2001 BUT in your case that previous application got revoke.
 
zstar said:
According to 245i we should still be able to grandfather in even it was revoked as it was "approvable when filed,"
We want to file for our 485, including me as an after acquired family and grandfather the old priority date ( 1994).
Click to expand...

This is not gonna work. He filed I-130 for your wife when he was PR, a PR could sponsor children ONLY IF THEY'RE UNMARRIED. Once your wife got married, the I-130 was voided.

I don't see any chance to reopen the case unless your wife divorces you :p (Kidding)
 
Sorry, I meant I-130 not I-140.
What happens to the ""approvable when filed," terms under 245i. It does say that if the petition was later revoked for any reason the person can still grandfather under "approvable when filed," senario. And my wife did have approved I-130 in 1996?
 
She had a approved I-130 in 1996. If they filed for her 485 she could be a citizen by now. But they never filed the 485 by mistake.
Now, she has a new I-130 approved(2005) as a married daughter of a Us citizen but I dont think she can file for 485 against that yet.
 
245i

Denials, revocations and withdrawals of visa petitions

In cases where petitions have been denied, revoked or withdrawn, adjudicators attempting to determine whether the beneficiary of the pre-January 15 filing is grandfathered must took to that filing and determine whether it was "approvable when filed," If it meets this standard, then the beneficiary is grandfathered even if the filing was later denied, revoked or withdrawn


Family-based immigrant visa petitions filed with the Attorney General

When the pre-January 15, 1998 petition has already been approved, it meets the "approvable when filed" standard and thus provides a basis for grandfathering unless the approval was later revoked. It is important to note, however, that denied, revoked, and pending cases may also meet the "approvable when filed" standard, as discussed above.

When the I-130 that supports the grandfathering claim is unadjudicated, officers should review the petition to determine whether it was "approvable when filed." Cases that are deficient because the Service requires additional information, such as a birth or marriage certificate, and in which. the petitioner would ordinarily be allowed to provide the additional information pursuant to 8 C.F.R. 103.2(b)(8) are sufficient for grandfathering purposes once the additional information is submitted and the Service concludes that the petition was "approvable when filed."

In some cases, it may be difficult for the alien to present or for the Service to secure relevant records to determine whether an alien is grandfathered or to reconstruct whether a petition would have been "approvable when filed," In these cases, officers should contact the Headquarters Office of Adjudications, as described at the end of this memorandum, for further guidance.
 
So?
I still don't get what is the problem here.

I will put it in 3 points...

1. You wife had a petition on 1993 filed for her LPR father. The petition I-130 was approve on 1994. She was still single. How you know that she could apply for AOS (I-485)? A person with an approved I-130 CANNOT file for AOS unless the priority date is current AND there is a visa number available for her. At that time I don't know but normally the process takes several years.

2. On 1998 she married you, meaning that automatically her previous approved I-130 got void since an LPR CANNOT file for a married daughter and sons. Even without a note, remember the National Visa Center does not know about it since probably her priority date was not current by that time. The approvals are filed and get on the Consulate when the priority date and visa numbers are available.

3. The claim of the 245i that a person can file for AOS with a previous petition (before 2001) that was "approvable" by that time is IF there is no other objection of approved that petition. In this case the objection is that she got married in 1998 and the petitioner, her father was still a LPR, not a USC.

4. Even if she file under the grounds of the "approvable" and after you make a fight of that revoke should be revoke, if that is possible...you are NOT in that petition anyway. That petition is solely of your wife not yours. You cannot get included to that petition since petition is for single adults...and this point is just in a ver hipotetic way.

I am not sure if you understand the fact that even if she is able to file for AOS after fighting the revokation, that does not mean that the I-130 will be approvable since the grouns where the I-130 should be approved was later void by her since she got married. Is not that an approved petition is done on stone, is like a permanent residency. USCIS can grant you permanent residency but there are many grounds that it can be take it out. And most important an AOS application is not independant of the I-130, for this matter the I-130 should be approved for be able to get a chance to obtain an approvable I-485. The I-485 without the approved I-130 does not exist.

You can ignore your attorney and talk with another one who is willing to go the way you want it. It is your money and your time.

Good luck,
 
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Well im in a similar situation

in 1992 my fiance's dad filed a i-130 for my fiance (unmarried adult son of a resident)
let me also point out that he EWI
Valentines day of this year he proposed. we went to a lawyer last week and told us that we cld get married and then he wld do the paperwork for the 245-I, because he applied in 1992 he meet's "grandfathered" status (i dnt know anything about lawyer fee's but he is charging us 2500) there is another problem his application was submitted, he has a reciept however it was never approved. the lawyers say thats not normal but nothing to worry about.

I hope we are doing the right thing
 
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