I485 denial for dependants

[Hadasa]

Need urgent help. Has any gone through this situation? Please let me know your suggestions.

7th year extension was not applied for dependants. Their I485 was denied as they are out of status since last extension. We cannot use 245(i) and 245(k) as they are out of status for more than a year and they were not physically present here on a day which allows using 245(k). We first received ‘intent to deny’ letters. My company applied for 7th year extension via ‘nun proc’, which is still pending. But we did receive denial communications last week. It tells that there are no provisions in INS that we can appeal on this.

Please help me to overcome this. Does any know what CIS next step is? Do we get letter to leave the country? I am not sure what we have to do now. Do we have to leave the country voluntarily? My company attorney and every other immigration attorney are at an American Immigration Lawyers Association Conference until Sunday.

 

[value1]

i-485 denial

Hadasa

Dont get upset. Tell us,

1. why did you not apply for 7th yr extension for your dependents? Were they not in the country? If they were not in the country then were they travelling on AP?

2. Did your dependant's I-485 application was pending with USCIS when you did not apply for 7th yr extension? If their I485 was pending then they were in I-485 pending status. They were not out of staus.

You have to tell more details before someone could share opinion.

 

[pralay]

Need urgent help. Has any gone through this situation? Please let me know your suggestions.

7th year extension was not applied for dependants. Their I485 was denied as they are out of status since last extension. We cannot use 245(i) and 245(k) as they are out of status for more than a year and they were not physically present here on a day which allows using 245(k). We first received ‘intent to deny’ letters. My company applied for 7th year extension via ‘nun proc’, which is still pending. But we did receive denial communications last week. It tells that there are no provisions in INS that we can appeal on this.

Please help me to overcome this. Does any know what CIS next step is? Do we get letter to leave the country? I am not sure what we have to do now. Do we have to leave the country voluntarily? My company attorney and every other immigration attorney are at an American Immigration Lawyers Association Conference until Sunday.

As you did not provide much details and timeline, I am assuming they were out of status before applying I-485. They are not eligible for 245(k) due to the fact that they were out of status more than 180 days. However, being dependents, they could be eligible for 245(i) provided they are in USA. Are they in USA now?

On the other hand, if you cannot reopen their case, their only option will be consular processing.

 

[Hadasa]

Here are the details in chronological order.

I140 filed in Sept 2003
I485 filed in nov 2003 (all)
6th year ended Feb, 2004

7th year extn filed in Feb, 2004 (primary only) as EAD not received for primary. My company told me it is not necessary to file 7th yr extension for dependants as their I485 was still pending.

7th year extn denial in Oct 2004 - reason I140 denial (education evaluation)

I485 - denial letters in Nov 2004 for all

I140 (new with labor substitute) filed in oct 2004 & appd in Nov 2004

I485(old) denial letters in Nov 2004
I485(new) filed in Dec 2004 (all)
7th yr extn (primary) approved in Dec 2004 (as new I140 approved)


I485 intent to denial letters for dependants in Apr 2005 - as per CIS, they are out of status after 6yr period.they are treating it as if the old AOS never happened.

sent I-539 (nunc pro tunc) for dependants 7yr extn to keep them in status

I485 approved for primary Jun 2005

received denial letters for dependants jun 2005 even though I-539 still pending.

We are all in USA since the begining of 2003

 

[tammy2]

Here are the details in chronological order.

I140 filed in Sept 2003
I485 filed in nov 2003 (all)
6th year ended Feb, 2004

7th year extn filed in Feb, 2004 (primary only) as EAD not received for primary. My company told me it is not necessary to file 7th yr extension for dependants as their I485 was still pending.

7th year extn denial in Oct 2004 - reason I140 denial (education evaluation)

I485 - denial letters in Nov 2004 for all

I140 (new with labor substitute) filed in oct 2004 & appd in Nov 2004

I485(old) denial letters in Nov 2004
I485(new) filed in Dec 2004 (all)
7th yr extn (primary) approved in Dec 2004 (as new I140 approved)


I485 intent to denial letters for dependants in Apr 2005 - as per CIS, they are out of status after 6yr period.they are treating it as if the old AOS never happened.

sent I-539 (nunc pro tunc) for dependants 7yr extn to keep them in status

I485 approved for primary Jun 2005

received denial letters for dependants jun 2005 even though I-539 still pending.

We are all in USA since the begining of 2003

When did you apply for Labor? Are you eligiable for 245(K). If you are eligiable check does grandfathering helps them?

 

[pralay]

I485 - denial letters in Nov 2004 for all
I485(new) filed in Dec 2004 (all)
7th yr extn (primary) approved in Dec 2004 (as new I140 approved)

I485 intent to denial letters for dependants in Apr 2005 - as per CIS, they are out of status after 6yr period.they are treating it as if the old AOS never happened.

I don't think your attorney is handling the cases very well. Probably you need to find a better attorney. From your timeline, as I understand your dependent's old I-485s were denied on Nov 2004 and they filed for new I-485 on Dec 2004. That makes only 1-2 months of out of status. When I-485 is denied I doubt the whole duration of I-485 pending period will be considered out-of-status. Law is not very clear about concurrent filing and impact on status/I-485 when I-140 gets denied. I am not aware of any memo/guideline that explains this issue. However, as the law is not clear, USCIS should not determine status/out-of-status in adhoc basis. They became out-of-status only after I-485 denial date. When they received NOID letters, your attorney could easily show that the out-of-status period is only 1-2 months, hence they are eligible for 245(k). But instead your attorney filed 7th year extention which was unnecessary and not to mention it was too late. Your attorney still can file for MTR (motion to reopen) with the fact that they were not out-of-status 1+ years, but only 1-2 months.