I-485 denied - "out of status"

#1
Hi everybody,

I have a pretty complex case and I would like to hear if any of you have/had a similar experience. Here it is:

I entered the US on B1-B2 tourist visa in March 2009. My church filed I-360 for a special religious worker, which was approved in August 2010. In September 2010, I filed I-485 to adjust my status.
My husband (which I married in 2008) lives in the US since 1998, but still waiting for the approval of his I-140 (he is out of status for quite some time). He was married to the US citizen, but divorced her before he got his papers. However, his family petition was filed before April 30, 2001 as well as the labor certification for his work visa. So, he can be considered a “grandfathered alien” according to 245(i). He also filed I-485 based on my approved I-360 at the same time as I.

However, after filing of I-485, we got intent to deny letters. The reason for mine was: out of status, which is true because I was out of status for over a year. The reason for this is that my church advised me not to take any actions, not to file extension of I-94 and I got myself into this problem.

The reason for my husband’s intent to deny is: out of status as well. The USCIS claims that his first marriage was fraudulent and they do not acknowledge his “grandfathered status” + if they denied mine I-485, they had to deny his, since I am the principal alien of approved I-360 petition.

We both replied to our intent to deny letters. I submitted the letter from my church in which they admit that they advised me wrongly and they accept their fault. My husband tried to explain that his marriage was a bona fide. However, neither of our responses the USCIS accepted and we got denial decisions.

Since there is no appeal option, we filed Motion to reopen (my husband) and Motion to reconsider (me).

In my husband’s motion we submitted affidavit from his ex-wife, her sister, some mutual friends, pictures of them together on several occasions and family gatherings, joint tax return, phone bill with both of their names on the same address … to prove bona fide marriage and to prove his “grandfathered alien status”.

In my motion, I tried to argue that I could be considered “grandfathered” through his status, since The Title 8, CFR, part 245.10 states: “Grandfathered alien means an alien who is the beneficiary (including a spouse or child or the alien beneficiary) if eligible to receive a visa …”.
I tried to explain that he was a PRINCIPAL alien in both of his old petitions and that accordingly I, even married him after April 30, 2001 could benefit from his grandfathered status, since the above mentioned quote does not limit which spouse (the one before or after 2001). Furthermore, the USCIS in their decision said that I could not be considered a grandfathered alien “in my own right and may not independently benefit from section 245(i)”. So I tried to argue that I, as his present spouse, should be able to benefit from his grandfathered status since we got married before he adjusted status (and became a resident) and since I am not adjusting my status independently, but together with him.

I don’t know does this sound too complicated?! Please don't tell me to consult a lawyer, because we did. She gave us this idea of "transferring the grandfathered alien status", but she asked too much money for filing a Motion for which she claims has a slim chance of success.

I was just wondering has anyone had a similar experience and tried to “transfer” his spouse’s grandfathered status to her/himself? If yes, what was the outcome?

And does anyone knows what is the processing time for Motions I-290B in Nebraska?

Thank you in advance for any information.

Adriana
 
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