I-485 Denied

5

5150

Registered Users (C)
Hi Gurus

On Aug 8, 2011, my I-485 was denied for the reason that I have been working in the US without the Service's (USCIS) authority.

Background

1. My application is familiy based-unmarried child over 21 of a USC
2. I have a valid EAD that expires in 12/31/2011
3. I've been on an F1 visa since 06 when I came into the US
4. I've been employed on campus as a student aide
5. I applied for EAD in 07 and 08 based on Economic hardship and were both approved

My questions at this point are
1. Could this be an error on the part of USCIS?
2. Can I appeal and win?
3. How long does it take for the appeal to be reviewed and decided upon?
4. Is my EAD still valid? and can I continue working legally?
 
I am really sorry to hear this setback. Just take a deep breath, everything happens for a reason. Speak to a lawyer. I think it is the fact that you are over 21. Were you over 21 when your parent filled?
 
Hey thanks a lot for the concern. Yes I was over 21. I had my I-130 approved so that should not be an issue. I was already past that stage.
 
Wow! I thought the experts on the forum said unauthorized work is overlooked for immediate family members. Now clarify a bit, did you work without USCIS authority? You state that you applied for EAD in 07 and 08. Did you work in 2009 and 2010 without EAD?

5150 said:
Hi Gurus

On Aug 8, 2011, my I-485 was denied for the reason that I have been working in the US without the Service's (USCIS) authority.

Background

1. My application is familiy based-unmarried child over 21 of a USC
2. I have a valid EAD that expires in 12/31/2011
3. I've been on an F1 visa since 06 when I came into the US
4. I've been employed on campus as a student aide
5. I applied for EAD in 07 and 08 based on Economic hardship and were both approved

My questions at this point are
1. Could this be an error on the part of USCIS?
2. Can I appeal and win?
3. How long does it take for the appeal to be reviewed and decided upon?
4. Is my EAD still valid? and can I continue working legally?
Click to expand...
 
5150 said:
Hi Gurus

On Aug 8, 2011, my I-485 was denied for the reason that I have been working in the US without the Service's (USCIS) authority.

Background

1. My application is familiy based-unmarried child over 21 of a USC
2. I have a valid EAD that expires in 12/31/2011
3. I've been on an F1 visa since 06 when I came into the US
4. I've been employed on campus as a student aide
5. I applied for EAD in 07 and 08 based on Economic hardship and were both approved

My questions at this point are
1. Could this be an error on the part of USCIS?
2. Can I appeal and win?
3. How long does it take for the appeal to be reviewed and decided upon?
4. Is my EAD still valid? and can I continue working legally?
Click to expand...

Did you ever work off-campus without a valid EAD, such as during any gaps between the expiration of one EAD and the approval of the next? Were you still attending school full-time when you filed the I-485?

An EAD granted for the purpose of allowing an F1 student to work off-campus due to economic hardship requires you to maintain F1 status to work. Once you stop attending classes and your F1 status lapses, you would be out of status if you continue to remain in the US and work, even if the EAD is still unexpired. And going out of status would cause you to be ineligible to adjust status in the over-21 children of USC category.
 
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I thought he said EAD was approved and expires this year, doesn't that mean he was authorized to work?
 
Kanani said:
I thought he said EAD was approved and expires this year, doesn't that mean he was authorized to work?
Click to expand...

He had EADs in 2007 & 2008. A "current" EAD would have been issued based on the pending I-485. There was a GAP in the EADs. The "current" EAD was canceled when the I-485 was denied.

There is NO APPEAL and it does not look like he would stand a chance before an IJ.
 
BigJoe so hypothetically this would not be the case if he were adjusting through marriage to USC instead of over 21 child of USC?

BigJoe5 said:
He had EADs in 2007 & 2008. A "current" EAD would have been issued based on the pending I-485. There was a GAP in the EADs. The "current" EAD was canceled when the I-485 was denied.

There is NO APPEAL and it does not look like he would stand a chance before an IJ.
Click to expand...
 
ananga73 said:
BigJoe so hypothetically this would not be the case if he were adjusting through marriage to USC instead of over 21 child of USC?
Click to expand...

Yes, the spouse of a USC is an "immediate relative" (IR) and an IR is waived the unauthorized employment bar to adjustment.

In addition, an employment-based AOS applicant can have "some" unauthorized employment forgiven under INA 245(k) [please read it.]. This does not apply to this poster.
 
As far as I know, there are several rules for F1 student employment. In any case F1 student have to maintain full-time student status. Fail to do so will put one out of status unless given valid reason for reduced course load and only two times during entire tenure one can apply for reduced course load. CPT is allowed only 20 hours/week. While maintaining F1 status one should not work at any place except job is directly related to one's major field of study. However with economic hardship its little different story as person can work anywhere but hour/week remains same and in summer one can work full time on either situation. One has to wait at least a year to be eligible for economic hardship work. Also, as per rules one can not work before and after validity period of EAD. Violation of any of this will be considered illegal work. Also social security and EAD given to F1 student will have condition of "valid with DHS authorization only".
 
You know it is so terrible to face a situation where your entire family is here and you may have to leave. Please consult a competent lawyear.
 
No I was never out of status. I came into the US and joined a community college before transfering to a four year college. I've always maintained 12 units load through out except the last semester at the junior college, which was in fact approved by the DSO. All the jobs that I've held have been on-campus. After my EAD expired in 2009, I never renewed it because I was going to school and taking 18 units. I think she just overlooked all the evidence I provided including the I-20s both current and old ones. I have never failed to attend classes and my 3.8 GPA can attest to that.
 
Talking about the gap. After my EAD expired in 2009, I never renewed it and quit my off-campus employment because of my class schedule. However, I continued working on-campus as the law allows. Read USCIS website on F1 employment on-campus. In part it states that F1 students can work on-campus without the permission of USCIS or DSO.
 
Looks like they must have assumed you worked off campus during that EAD gap.

You'll need to file a Motion to Reopen. Include a letter listing the timelines for all your off- and on-campus work and the EAD validity periods, pointing out that the only time you worked off-campus was with a valid EAD. Also include transcripts to prove that you had a full-time class load for all semesters (except the summer breaks and that last semester before graduating from community college, both of which are allowed less than full time under the student visa regulations). Also include copies of the EADs if you still have them. And have a lawyer review all the MTR paperwork before submitting it (unless you want the lawyer to do the preparing -- it would cost more but USCIS would probably take it more seriously with the lawyer's letter backing it) .
 
You could be right. I submitted all those documents-copies of EAD, I-20s, Transcripts and SEVIS records-but still got denied. I will file a motion ASAP because based on the weight of evidence I submitted, I should not have been denied. The funny thing about this is that I went back to that office and asked to see my file. As she was flipping through the pages, everything was there. I still do not understand the grounds for denial. I had all 2 copies of EAD (01/02/07-12/31/07 and 01/25/08-1/14/09. The new one (12/30/10-12/29/11) was missing. She had asked for it during the interview which i thought she made copies of. I think its a mistake on their part that should not have occured. What do you think?
 
I received an email today from USCIS stating that they have reopened my I-485 and are reviewing their earlier decision. What does this mean? Anyone with any ideas?
 
They reopened it without you filing a motion to reopen? That's great news! Probably the supervisor noticed the obvious error when reviewing the denial, and took the initiative to reopen it on their own instead of waiting to hear from your lawyer.

Within the next few weeks you should either get a letter in the mail saying that they have reopened the I-485 (which would put it back into pending status), or you'll get the GC itself.
 
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Just like you said, I got the letter stating that the case has been re-opened. I also got another letter from the Oficer who initially denied my case asking for proof that the company I worked for when I had my Economic hardship EAD is educationally affiliated with the school I was attending. She also needs a copy of a current I-20 showing that I am in current non-immigrant status. Does this make any sense to you? With Economic hardship I thought one could work for any employer regardless of the affiliation. As for non-immigrant status, does it stop when you apply for adjustment of status? How do I respond to this situation? Is this a sign of incompetence on her part? Grrrrrr what's wrong with this peoooople.
 
You're right, the economic hardship EAD doesn't require the employer to have any affiliation with the school. The IO must have been thinking of curricular practical training. Did the EAD or I-20 at the time have any indicator of the EAD being based on economic hardship? Or did you submit any other evidence to show that fact?

As far as your nonimmigrant status is concerned, what is important is to show that you had the status when you filed the I-485. Perhaps that is what they really meant, but you never know.

Looks like you're dealing with an inexperienced IO, who is seeing their first case of an F1 student who worked off-campus and is adjusting status on a basis other than Immediate Relative of USC. After gathering your evidence, I would suggest bringing it and the denial+reopen letters to a lawyer and have them write a cover letter to include with your response, with the letter quoting the relevant regulations and/or court cases to bolster the legitimacy of your off-campus employment and point out that you were only required to maintain F1 status until the I-485 filing date. When they see that you have a lawyer they'll take you more seriously and be much more cautious about denying you again.

The consultation and letter should cost you less than $1000 (you're not asking them to take over the whole case, you just want them to look over your facts and evidence and write the letter which you'll submit yourself). Discuss the price early, let them know that you're a student so you can't afford thousands of dollars. If they can't do it for less than that move on to the next lawyer. That's still a lot of money for a student, but better to tackle this now instead of having to deal with another denial and appeal.
 
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