I485 Denied for Friend and Need Experts Advice. Very Urgent!

[Jharkhandi]

Mr. J.


Check this out -
http://www.twmlaw.com/resources/non...buyingtime.html

The Appeal of an Appeal

As amended in 2002, AC21 §106(b) states that extensions of H-1B status shall be granted in one-year increments “until such time as a final decision is made to deny the [labor certification] application” or in a case in which the labor certification application is granted, “to deny a petition” based on its approval. What is a “final decision”? Is it the decision of the Service Center or the INS Administrative Appeals Office (AAO)?

This question was asked of the INS General Counsel in 1991, and the answer, in so many words, was that it ain’t over till it’s over. The INS Western Region wanted to know what happens to an I-485 adjustment of status application filed in conjunction with an I-130 or I-140 immigrant visa petition when the petition is denied. Would the I-485 be considered pending if the petition denial was appealed, and would interim benefits such as employment authorization continue during the appeal process? In other words, the Service wanted to know when the petition denial was final: after the Service Center denial or after a decision on an appeal?

Paul Virtue was then Acting INS General Counsel. He noted that Service regulations specifically state that if a decision is appealable to the Board of Immigration Appeals, the decision is not final during the appeal process. Yet nowhere did the regulations state the same for decisions appealable to the AAO. Mr. Virtue’s short answer was: “It is our opinion that as long as a decision may be reversed on direct appeal or certification, the Service should not consider that decision final. This includes I-140 third- and sixth-preference petitions.”

Under a heading “INS Regulations Should Be Amended to State Explicitly That a Decision That is Appealable to the AAU Is Not Final Until the Right to Appeal Is Waived, or the Appeal or Certification Is Decided,” the General Counsel said that, “as long as a decision may be reversed on direct appeal or certification, the merits of the matter have not been finally determined and, therefore, the decision should not be acted upon as if it were final.”

That position is recognized elsewhere in INS regulations and procedures. For example, the standard language the INS uses in its denial notices states the following: “If you wish to file an appeal from this decision, you may do so. Your notice of appeal must be filed within 30 days from the date of this notice, 33 days if this notice was received by mail. If no appeal is filed within the time allowed, this decision is final.” This means that if an appeal is filed, the decision is not final. Moreover, adjustment applicants who file for employment authorization are entitled to renew their applications in one-year increments “including any period when an administrative appeal . . . is pending.”

Corrected link is:

http://www.twmlaw.com/site/resources/nonimmigrant/buyingtime.html

Nice article- a must read for good insight. Thanks UN.

It may work good in case of H1b visa extension.

Anyway quoting from same article:

It’s elementary, but should still be said: AC21 §106 applies only to nonimmigrants who are in H-1B status.

Paul Virtue was then Acting INS General Counsel. He noted that Service regulations specifically state that if a decision is appealable to the Board of Immigration Appeals, the decision is not final during the appeal process. Yet nowhere did the regulations state the same for decisions appealable to the AAO.

And the context is interim benefits like EAD and AP in case of 485 denial followed by appeal. AC-21 is not interim benefit nor is 485.

The whole article is around extension of H1b as (possible interpretation of )interim benefit of 485. And hence is the predictable conclusion:

Conclusion

Amended AC21 §106 is an area fraught with uncertainty. The advice offered here may not work in every case. Moreover, forthcoming INS and Department of Labor (DOL) regulations may reject or moot some of our suggestions and analysis. For example, the DOL has proposed overhauling and streamlining its labor certification system. If that happens, labor certification applications may take less than a year to be decided, thus obviating the need to worry about many of the issues raised in this article. Given the nature of the bureaucratic beast known as the DOL, however, don’t bet the ranch on that happening.

Despite these caveats, some of the suggestions in this article may be the last lifeline for H-1B workers at the end of their six-year rope. Required by ethics codes to be their zealous advocates, we offer our ideas and strategies, and wish you safe sailing in uncharted waters. at the end of article.

It, in no way applies(or can ever be argued) to using AC-21 as interim benefit.

 

[Jharkhandi]

-------------------------------problem is it is not incorporated. it is a sole proprietor. Company is his brother.

-------------I looked up for i864 and said the sponsor has to be permanent resident or u.s. citizen. You can have a joint sponsor but at first read it looks like both would have to be permanent resident or u.s. citizen. He could have gone the route of substitute sponsor but that is to substitute for someone who has died (i believe).

------------------sole proprietor versus incorporated. This could be done, that is incorporate a company and sell assets, etc. from sole proprietor to company. This could be very expensive (lawyer, accounting fees). There is also negative tax consequences. Also, don't know how successor of interest would apply. It is worth a short but expensive to do and very difficult to turn around in a short period of time.

I wouldn't dare.

UN is expert on the topic any day - hats off!

 

[Jharkhandi]

agreed that the article was around 7th year extension, ead and ap.

However, the comments and regs. is from 1991. 7th year extension wasn't around then.

Paul Virtue was then Acting INS General Counsel. He noted that Service regulations specifically state that if a decision is appealable to the Board of Immigration Appeals, the decision is not final during the appeal process. Yet nowhere did the regulations state the same for decisions appealable to the AAO.

If this is in the context of using ac21 when application has been denied, I agree with you that changing employers probably would not work, I believe I used bad terminology about being in pending (don't know what else to call it). However, if he did not have any status to stay inside the country but he is appealing the denial then he wouldn't have to leave until the appeals have been exhausted.

That is really my main point. He can stay until appeals have been exhausted. Using ac21 after it has been denied would be risky.

Definitely he can stay during appeal - no question about it. It is like batsman on cricket ground cannot be asked to go to pavilion till decision is made.

In 1991, interim benefits were attached with 485 like EAD and AP. So in the same context question was put up - what happens to interim benefits? Would it be considered gone? The answer is no - not as long as it is with BIA. BIA is supposedly highest body and cannot be overruled as per media crap from uscis. (it has been overruled - one of the cases was by Shushterman - but not related to this topic).

The same idea of interim benefit idea is applied to H1b visa and that is why you see people who got LC rejected in extension year are not forced to go back till H1 is valid!

Last but not the least, Paul Virtue's interpretation has no meaning till he puts it as a memo or directive and he cannot do so as his role is limited to recommendation. These benefits cannot be decided by General Counsel,but recommended and that too when asked for. BIA is not forced to accept it.

Tell me what do you think about role of XXX:

1) Office of the XXX. Headed by the XXX, the office provides legal advice to the Commissioner, the Deputy Commissioner, and staff; prepares legislative reports; assists in litigation; prepares briefs and other legal memoranda when necessary; directs the activities of the regional counsel; oversees the professional activities of all Service attorneys assigned to field offices; and, makes recommendations on all personnel matters involving Service attorneys.

Check 8 CFR 100.2(a)(1) it is about role of office of General Counsel.

Thumb rule is: benefits will stay till appeal is with BIA and cannot be guaranteed otherwise. Second - MTR doesn't allows to use AC-21 as it is no interim benefit.

 

[lvsonii]

lvsonii

unitednations, no update in my case. I did new i485 with new employer but i am waiting for answer for refile new i485.lawyer told me for refile i485 its chance of 50-50 %.I dont know my application new i485 (ac21) immigration will accept or not?I will get answer in 10 days.After denied i485,my case is very complicated.