I-485 marriage based denied..possibility to reapply? please help...

arranger said:
if 30 days has elapsed, then yes, in my experience your motion will be denied as untimely filed. there is no reason why this should have any adverse effect on future filings, though. it seems there is no harm in MTR attempt. you will likely be granted your waiver, it is just a matter of getting the opinion and submitting it and so on. again, no need to wait to have letter in hand. reapply now. CSs are familiar with your situation.
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Thank you for your response. My 30 days to file MTR is over now, but another lawyer that I talked to said that maybe we could still file and explain the reason why we can't file MTR within 30 days. And if "they are nice", they might let us do it. I'm not confident about that avenue that much as I know that USCIS is pretty strict about the time line. In that case then I will lose more money and time. Do you happen to know anyone who file MTR after 30 days? Should I still try to do MTR or just reapply?
 
akatu said:
I meant to file MTR not for AOS but for J1. Basically you can do both.

In the cases I mentioned lawyer used this venue: filed MTR to correct an error 1 year after original approval of J1. I believe I-824 also could be filed.
you do not have to file for waiver because 2 yr requirement was marked erroneously, just suppliment with suffucient documentation showing that you did not fall under that restriction at the time of application for J1.

You can wait for decision and re-apply for AOS also.
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Yes I did go for that. I'm in the middle of the process to fix the problem with my J. I anticipate that the result will be out by the end of April and it would say that I'm not subject. Then I'm still debating whether I should still force to do MTR for AOS even though it's after 30 days or I should just simply reapply. What do you think?
 
certainly no harm in attempting the MTR. yes, i have seen numerous cases in which MTR was accepted despite being slightly beyond 30 days. it is a question of workload for the adjudicators. usually, it appears easier/faster for them to deny MTR if they have sound basis. the pressure for them is to move it along. however, they also understand that you are still seeking to reapply anyway, and they are aware that you will likely be approved. so, good DD's often initiate this policy-- keep the backlog down. the MTR need not be a big deal. you can write it yourself. be clear and brief. explain WHY you missed the deadline. there are always these exceptions. get it in the mail now, then work on reapplying. as i said, the waiver will be recognized, it is not that unusual for Js. you will get there. good luck.
 
ndc121 said:
When you went from J to F, did you leave the country and get an F visa stamp?
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Yes, I leaf the country. My J ended in June 2001. I went home and applied for F with I-20 I got from school. I didn't have any interview. They gave me 5 years. Then I came back in August.
 
arranger said:
certainly no harm in attempting the MTR. yes, i have seen numerous cases in which MTR was accepted despite being slightly beyond 30 days. it is a question of workload for the adjudicators. usually, it appears easier/faster for them to deny MTR if they have sound basis. the pressure for them is to move it along. however, they also understand that you are still seeking to reapply anyway, and they are aware that you will likely be approved. so, good DD's often initiate this policy-- keep the backlog down. the MTR need not be a big deal. you can write it yourself. be clear and brief. explain WHY you missed the deadline. there are always these exceptions. get it in the mail now, then work on reapplying. as i said, the waiver will be recognized, it is not that unusual for Js. you will get there. good luck.
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My result comes out today and I'm not subject. Hoorayyyy I'm so happy. But now I've to figure out what to do since my 30 days to file motion to reopen for for them to reconsider my case is over. Anyway, I agree with u. It's only less a week after the 30 days and I do believe that they might give me a break. Too bad I'm stuck on the weekend. But maybe if I get the mail out by tomorrow (Sat) and do over night, they'll receive it on Mon. Many thanks for your response....I'll keep u and everyone updated.
 
Yuo should go for MTR and state that there is a new evidence in your case thatr was not availble prior. If they deny, sue them in Federal court.
 
need advice

i got married to usc and i applied for my papers < everything required was provided i mean everything) . ok , now i applied on febuary9th 2006 and i still havent received my work permit or n e kind of communication from INS ... could n e one know what i should be expecting and when and if n e one can throw on some more light on it .. will appreciate their effort
thanks .! :rolleyes:
 
akatu said:
Yuo should go for MTR and state that there is a new evidence in your case thatr was not availble prior. If they deny, sue them in Federal court.
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How can I do that? Is it o.k. for me to fight back if they deny my MTR because of untimely filed?
 
cooliopepse said:
i got married to usc and i applied for my papers < everything required was provided i mean everything) . ok , now i applied on febuary9th 2006 and i still havent received my work permit or n e kind of communication from INS ... could n e one know what i should be expecting and when and if n e one can throw on some more light on it .. will appreciate their effort
thanks .! :rolleyes:
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You should at least hear from them within 4-6 weeks after u filed your paper work. U should contact customer service at 18003755283 and inquire them.
 
whoa. there are a few things to consider before we run off suing everyone:

number one-- under US law, it is not possible to "sue" the federal government (US constitution). you may press a complaint, yes. you may pursue any and all administrative relief, yes. but not "sue."

number two-- remember CIS has every right, as i mentioned earlier, to deny the MTR as untimely filed. that is a simple matter of US law. it would be pointless to try and argue against this simple fact. there is no evidence to support you anywhere.

remember also, if you WERE to try and pursue this complaint in an agressive way, do you have any idea how long these matters take? you will be paying attorneys for a minimum of THREE YEARS. does that sound like it would be worthwhile?

before you go taking advice from people, consider who you are listening to.

in your case, as i suggested, do pursue the MTR, only with the attitude of seeing what happens. simultaneously reapply. be patient, do not make a nuisance of yourself. be polite, as i can see you are. you have a strong position and it is likely just a matter of time and patience. it will come. good luck.
 
Thank you for all advices. I contacted my lawyer again and this time he supported me to file MTR since it's only couple days after the 30 days ended. This is what he found in his research about possibility to file MTR after the 30 days.

"8 CFR 103.5
§ 103.5 Reopening or reconsideration.


(a) Motions to reopen or reconsider in other than special agricultural worker and legalization cases -- (1) When filed by affected party -- (i) General. Except where the Board has jurisdiction and as otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the affected party files a motion, the official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision. Motions to reopen or reconsider are not applicable to proceedings described in § 274a.9 of this chapter. Any motion to reconsider an action by the Service filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reconsider. Any motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner. "

My lawyer dropped the request in person today at the local office. He also cited the above law to back up our point. Since contacting DOS and waiting the result from them is beyond my control, he requested that CIS accept our MTR. Plus as DOS said that I'm not subject, it simply means that they admited to the error made when issuing me 2 yrs HRR. I'll keep everyone posted how it turns out and whether CIS accept my MTR. Many thansk for all advices so far.
 
exactly so, angle. you have a good attorney. he poses the request well, and that makes a big difference. good possibility they will accept, and if so, you will be on your way in no time. keep us posted.
 
I'll definitely keep everyone posted. It's been two days after my attorney dropped the request, but we haven't heard anything. But I guess no news is good news at this point.
 
Just an update....A week has passed after my lawyer filed MTR. So I emailed my lawyer to inquire about the situation. He told me that local CIS definitely take the MTR for processing, but whether they would grant the motion or not is anotehr issue. Anyway, this is what he said (which, of course, make me worried):

"The fact that they accepted it means that they will consider whether or not we have established "good cause" for the late filing. They could take the position that you should not have even filed until you had the proof that you were not subject. At this point, the only real issue is whether or not there was good cause for you not having the proof when you filed; if so, then they should grant the motion and approve your application for adjustment of status."

So, does anybody have an idea how likely they would deny my MTR?? It's only less than a week when we filed it and all that time was because we were waiting for the result from DOS, which is beyond our control. Plus, it is obvious that the whole issue I have stems from the fact that DOS made a mistake at the first place. My lawyer always scares me. Wjat do you think?
 
thaiangle!

First of be patient and I wish you good luck.
Secondly, yuor atrtroney's words only speculation.
"They could take the position that you should not have even filed until you had the proof that you were not subject." - this consideration does not make sense. You were not the subject at the time of filing and a proof of that was provided to you by CIS after they responded to you request to fix this matter. And youcould not file MTR timely because the material fact was not there. Now when you provide evidence of a new fact here is the "good cause". And if the do not respond or deny MTR, you can and should sue them in Federal court, because they already broke the Law by making mistake as you mentioned before. And it is not necessarily that it will take too long.
 
whoa. once again, SLOW DOWN. first of all, as i mentioned before, there is no "suing in federal court." follow the procedures and be reasonable and patient.

angle, your attorney is correct in analyzing your legal position, however, like most attorneys, he may have motive to keep you alarmed. in truth, the CIS decision is, in a way, a little simpler than described. as i said earlier, CIS has complete discretion in granting or denying MTR, even if filed "late." CIS makes these decisions on a daily basis at a relatively low level. they are in no way obligated lawfully to do anything one way or another. so there is no malfeasance regardless of what outcome is. also, CIS did act properly in failing to approve first petition, based on evidence at the time. remember "MTR" is not like an argument in a court of law. it is simply a REQUEST for additonal consideration. the truth is, behind the scenes, decisions on these MTRs are motivated almost entirely by practical considerations. so what is best and easiest for CIS will rule.

often this can work in your favor. there is the recognition that your case is approvable once you reapply anyway. and CIS will recognize this. and it saves them time and money to approve it NOW, instead of forcing you to reapply, which they know you will do. despite your attorney's comments, there is usually no higher legal argument debated here.

that being said, there is no timetable for response to MTR. i would never expect anything as soon as a week, though. much depends on where you reside, assuming you sent the MTR to your local district. you didn't mention where you are, some places much worse then others. good new is, times are way down now in general. i would think the 30-day frame is earliest you might expect anything.

stay calm, you are in good hands with your attorney and a good position overall. you will see that CIS is not your enemy. so no wars. and sorry akatu, no suing. focus on your objective: adjustment.

good luck.
 
Joyce @ thiangle

For the last few months, I’ve completely stopped answering to anyone thru PMs because I just don’t have much time to answer to so many PMs that I receive all the times. However, I do choose sometimes to answer to only those PMs wherein cases are seemed to be a little bit complicated and complex, yet still it depends on my mood and availability of my time.

You might be aware of the fact that people cannot answer in detail thru PM because of the limitation on the text size. Thus, I’ve chosen to answer to you here because I always answer in detail by covering all the issues. Plus, who knows my opinion might help someone else too who might be in a same situation like you are.

Though some of your concerns have already been answered, yet still I’m going to remind the tape a bit back.

[1] I’ve noticed about you having said many times that your attorney ALWAYS scares you. So, if this is the case then you should fire him or get rid of him. People should not keep/hire the attorney just because a particular attorney is aware of their case; rather having a trust on a lawyer is very important. If you don’t trust your lawyer, then it is my advice to look for another lawyer. I do understand that another lawyer might cost you some extra money but money is not that important when you are cliffhanging on such an important decision of your life which is called-immigration to this country. I wonder why you did not look for another lawyer when you are always scared of your attorney.

[2] I’ve read your case history completely and I’m glad to know that DOS (Department of State) has finally corrected their mistake. There is no doubt that they made a terrible mistake when they stamped your passport with an annotation that stated that you were subjected to 2 years home residency requirement. Though a J visa holder must fall under 2 years home residency requirement but the job you came in for under J visa is exempted from 2 yrs home residency requirement. However, this is not an issue anymore as DOS has corrected their mistake recently.

[3] Since the said annotation on your passport with J visa was the sole reason for your I-485 to have denied before then your application for adjustment of status would get approved this time around since DOS has now corrected their mistake.

[4] You don’t have to worry about being overstaying here because your overstaying will automatically be forgiven without questioning it as you are the immediate relative (wife) of a US citizen (your husband). So, this issue is out of picture too.

[5] You have recently filed a MTR, thus you should keep some patience as it could take up to 12 weeks to have a decision on such kind of Motion. Granting of this Motion means approving of your I-485. Thus, it might take a while for USCIS to review your whole case. Just keep some patience.

[6] The question of whether or not USCIS would accept this late Motion is yet remained to be seen. Nobody (again nobody) can answer this question, believe me. Why? Because USCIS retains the sole right to deny this Motion of yours under a technical ground due to a fact alone that such motion must have been filed within 30 days of denial on I-485.

However, USCIS MIGHT go ahead and accept it, which is going to happen in my opinion. Why? Because USCIS does have the discretion to accept late Motion so long they are convinced that there was a reasonable cause of late filing of such Motion which you have already told them when you told them in your motion that you did not have correction from DOS.

But keep it in mind that accepting a late Motion is under the discretion of USCIS wherein you have no right to appeal whatsoever if they choose to deny it.

If USCIS denies your motion on a technical ground mentioned above, then you can file I-485 all over again. Adjudication on immigration applications are very quick now-a-days, like 4-6 months at most. Thus, re-filing is still better than spending so much money on attorney and wasting so much time on all this Motions.

Nevertheless, I strongly believe that your MTR will be granted. You have to know one fact about my prediction or instinct. I’ve made so many predictions on this site (different forum) for the last one year or so, even on a complicated case wherein there was no hope to prevail, but they all turned in a way as I predicted.

Thus, I believe my instinct is right this time too in your case when I say that USCIS will grant your Motion and approve your I-485. Thus, don’t worry much about all this.

By the way, which country are you from?

If you have any further question, provide me your email address thru PM (Private message) to me because I answer in detail which I cannot do thru PM. Let me know how all goes.

Good Luck.
 
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Thank you so much for all advices from everyone. I feel more calm reading through your message and that I have support. Yes..I'll be patient.

To answer Arranger and Johnny, I'm from Thailand and currently reside in Albany, NY. I had my interview and filed MTR through local CIS in the town.
 
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