I-485 Denied;please Help!!!!!

P

polina87

Registered Users (C)
Hi All,
My I485 was denied (Employment base GC, I am the dependant)-
Reason:"A visa was not available at the time this application was received".We are appealing(MTR), because on the date of the I140(EB3) was approved,the EB3 with priority date in 2003 was available.
MTR was filed on DEC10,but still no answer.
Meanwhile I lost employment eligibility ,as my I485 is no longer pending, which leads to my current unemployment.

has anyone been in the same situation?????How long does it take for MTR to be approved?

Meanwhile we are appealing denied EB2,which was concurrently filed with the previously mentioned denied I485.If the EB2 gets approved how is this going to change the situation with the denied I485?
Please share your knowledge.....
 
polina87 said:
We are appealing(MTR), because on the date of the I140(EB3) was approved,the EB3 with priority date in 2003 was available.
Click to expand...
The I-140 date is irrelevant. What matters is when the I-485 was filed. Exactly when was it filed and which country/category was it filed in?

And can you clarify what is going on? You also filed an EB2 I-140/I-485 with you as the primary?
 
Last edited by a moderator:
Clarification

I-485 filed Oct2006 concurrently with I-140 EB2 and EB3

Employment based -2nd and 3rd preference.

I other words the attorney filed I-885,I-140 second and third pref. all together in Oct2006

Jun07-EB3 approved
Sept07-EB2 denied-filed appeal same month

Dec 07 -I 485 denied, because "A visa was not available at the time this application was received"
DEC 07 -Motion to reopen

My husband is the primary am the dependant.
I hope this helps in clarifying the case...
 
Clarification

--------------------------------------------------------------------------------

I-485 filed Oct2006 concurrently with I-140 EB2 and EB3

Employment based -2nd and 3rd preference.

I other words the attorney filed I-885,I-140 second and third pref. all together in Oct2006

Jun07-EB3 approved
Sept07-EB2 denied-filed appeal same month

Dec 07 -I 485 denied, because "A visa was not available at the time this application was received"
DEC 07 -Motion to reopen

My husband is the primary am the dependant.
I hope this helps in clarifying the case...
 
It is correct denial

polina87 said:
Clarification

--------------------------------------------------------------------------------

I-485 filed Oct2006 concurrently with I-140 EB2 and EB3

Employment based -2nd and 3rd preference.
Click to expand...

If you belong to RoW and your PD is 2003 then:

In October 2006 EB3 category PD earlier than 01-MAY-02 was current.
You needed to have PD at least 30-APR-02 or earlier to be eligible to file concurrently I-140/485 in EB3 category (you were not eligible). Your EAD worked based on filed EB2 filed concurrently I-140/485 but not EB3.

http://travel.state.gov/visa/frvi/bulletin/bulletin_3032.html

It does not matter that EB3 became current for everyone in june 2007.
Their denial is correct that "A visa was not available at the time this application was received" (October 2006).
 
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Two I-140s were filed for the same person (your husband)? Which I-140 was the I-485 tied to, and what's the priority date and country of chargeability? (just say ROW if not India/China/Mexico/Philippines)

If your PD was not current at the time of filing the I-485, the MTR will be denied. So you should refile the I-485 rather than pursue an MTR.
 
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PD is May2003
Row
I 485, EB2, EB3 -filed Oct 2006
Jun2006- EB3 approved- PD MAy'03 was available, therefore I485 should have been approved?IS that so?

Aug 2006 EB2 denied

Oestion: Which date is considered: the date you file the I485 or the date the EB2 or EB3 is approved????
I am totally confused now...
 
PD is MAy03
country-ROW
I-485 was filed concurrently with I-140-second preference and I-140 -third preference
So, I aasume it was tied to both-EB2and EB3?
Thanks!
 
polina87 said:
PD is May2003
Row
I 485, EB2, EB3 -filed Oct 2006
Jun2006- EB3 approved- PD MAy'03 was available, therefore I485 should have been approved?IS that so?

Aug 2006 EB2 denied

Oestion: Which date is considered: the date you file the I485 or the date the EB2 or EB3 is approved????
I am totally confused now...
Click to expand...

Did you work on EAD anytime after Aug 2006 ?
If yes they can consider it as unauthorized employment.
 
polina87 said:
PD is MAy03
country-ROW
I-485 was filed concurrently with I-140-second preference and I-140 -third preference
So, I aasume it was tied to both-EB2and EB3?
Click to expand...
One I-485 cannot be tied to both at the same time. Were two I-485's filed?

EB3 ROW was not current for a May 2003 PD in October 2006, but EB2 ROW was. So the I-485 denial is correct for EB3.

What was denied for the EB2? The I-140?
 
polina87 said:
PD is May2003
Row
I 485, EB2, EB3 -filed Oct 2006
Jun2006- EB3 approved- PD MAy'03 was available, therefore I485 should have been approved?IS that so?

Aug 2006 EB2 denied

Oestion: Which date is considered: the date you file the I485 or the date the EB2 or EB3 is approved????
I am totally confused now...
Click to expand...

OK, let me get this clear first.

1. Your labor PD is MAY 2003.
2. Your labor approved on June 2006.
2. Your lawyer filed 2 petition of I-140. One for EB2 and one for EB3 after your labor is cleared.
3. In October 2006, your lawyer filed I-485 for both EB2 and EB3.

The cut-off date on Oct 2006 for EB-3 catagory is 01MAY2002, which means your EB3 should not fall under the cutoff date, thus it can be denied due to visa number unavailibility.

http://travel.state.gov/visa/frvi/bulletin/bulletin_3032.html

So is your I-140 filed under EB-2 has ever been approved?
Now that you are saying your EB-2 I-485 has been denied as well?

what is this, Aug 2006 EB2 denied? which one was denied, is it I-140 or I-485?

Sept07-EB2 denied-filed appeal same month - which application denied, is it I-140? If it was I-140 denied, they could have denied the I-485 based on your application as your I-140 being denied as well.

Denying I-140 could also lead in your I-485 denied (could be ability to pay) or your Education background. What was required in your labor? BS degree plus five years experience or MS degree or only BS degree?
 
EB2 denied, because " the offered position is not a job that required a professional holding and advanced degree..."
W
We appealed, and we are still waiting for response.
If we decide to refile we should first wait for respond for the above mentioned EB2 ,and if it gets approve we should then refile I485?
If we refile based on approved EB3, the PD MAy2003/ ROW is not current?IS this correct?
Thanks
 
polina87 said:
EB2 denied, because " the offered position is not a job that required a professional holding and advanced degree..."
W
We appealed, and we are still waiting for response.
If we decide to refile we should first wait for respond for the above mentioned EB2 ,and if it gets approve we should then refile I485?
If we refile based on approved EB3, the PD MAy2003/ ROW is not current?IS this correct?
Thanks
Click to expand...

It seems like the labor is not qualified for/under EB2. They will deny your motion again under EB2. Now the EB3 that was denied earlier due to the cut-off date not being current - does your I-140 approved under EB3 yet or what is the status of the I-140 filed under EB3?

Appealing means, if it is granted, you don't have to refile I-485. (EB2)

Since your EB3 is denied as well, does that mean your I-140 also being denied that was filed under EB3?
 
You can't refile for EB3 now. The PD cutoff is Nov. 2002.

The EB3 denial of the I-485 is clear-cut correct. The EB2 denial (which I presume you meant the I-140) depends on various specifics of the job, and we don't have enough information to comment on that ... except that I will say that if the EB2 petition was for the same job as the EB3 petition, and the EB3 labor certification didn't require a Master's (or equivalent based on years of experience), the EB2 would be an obvious rightful denial.
 
I-140 third preference was approved June30,2007-It was never denied.It was filed Oct 2006, concurrently with I485


I-140 second preference was denied -Aug2007.We appealed...
 
If the only status for you and your husband is AOS pending, than the best you can do by filing appeal for denied I-140 in categoryEB2 is to win the time and hope that EB3 is current again soon for EB3 RoW.

Since EB3 is current you may file I-485 based on the approved EB3 I-140 and you are fine. If you get denial of your appeal for EB2 I-140 before your PD is current for EB3, you must leave the country not to be out of status.
 
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