Mother's 485 denied

S

shriyaz

Registered Users (C)
HEllo

My mother's 485 was just denied due to non-availability of birth certificate. We are trying to get this from India however, we I think have about 30 days before removal proceedings start. I was thinking of refiling with her school leaving cert (that we got only now) and consular office birth certificate.

By filing we become removal proceedings stop and buys us some time to get the NABC.

IS anyone is similar situation. Your responses are appreciated.

Thanks
-rick
 
Reapplying after an I-485 denial, without having nonimmigrant status, will usually result in them just initiating removal proceedings and denying the new I-485.

What you need to do is get the birth certificate (not a NABC) and file a Motion to Reopen. Or leave the US before they initiate removal proceedings, and reapply with consular processing (i.e. no I-485), if she overstayed her visa by less than 180 days.
 
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Go the MTR route. When did your mother's I-94 expire?

Cases like this validate my strong stand of always going the CP route. Due to lack of proper documents, your mother now is in a spot of bother. If her overstay is beyond 180 days, she is subject to a 3 year ban.

shriyaz said:
IS anyone is similar situation. Your responses are appreciated.
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No she has not extended beyond 180 days. However now when she goes back, won't she be subject to a 3 year ban. I thought that being a close relative of s US citizen, she can stay. The only issue here is it is taking a little longer for us to get the Non-availability cert.
 
Provided there is an I-485 in the works. Her I-485 got denied. This is where her trouble started.

shriyaz said:
I thought that being a close relative of s US citizen, she can stay. The only issue here is it is taking a little longer for us to get the Non-availability cert.
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You think it would be denied right away or, would I get an RFE by which time I am sure that I will get the Non-availability certificate from India
 
If I could tell the future, I would be at Mandalay Bay in Las Vegas right now sitting infront of a Roulette table.

I believe it will most likely be denied. There is a reason I am advising the CP route. As long as she leaves before 180 days of overstay, she will have a very decent chance of being issued an immigrant visa. Once that window closes, the only chance is MTR on the denied I-485.

shriyaz said:
You think it would be denied right away or, would I get an RFE by which time I am sure that I will get the Non-availability certificate from India
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shriyaz said:
You think it would be denied right away or, would I get an RFE by which time I am sure that I will get the Non-availability certificate from India
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Probably denied right away, because of the recent denial and the lack of valid nonimmigrant status. File an MTR, don't reapply. Or she should leave the US and reapply via consular processing. Refiling I-485 is likely to accelerate removal proceedings, which can result in a multi-year ban.

Earlier in the thread you said you are able get a consular birth certificate. How is it that she can obtain a consular birth certificate but not the actual birth certificate?
 
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The Indian consulate I understand gives a birth certificate on their letter head. My mother was born in 1951 and at the time either records did not exist or are probably destroyed right now. What we are trying to do is get a non-availability birth certificate. So from what I understand it would be denied even though she is under 180 days (we have abuot 60/70 days left more) after I-94 expiry. I was thinking on the lines of MTR and wait for 45 days and then reapply with the non-availability certificate.

The new I-485 when applied with the certificate would be denied under what law?
 
TheRealCanadian said:
She's an immediate relative. Why would either cause a denial?
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That's how they operate. There are cases on this forum where the spouse of a US citizen got denied, reapplied, and got promptly denied again even when the original reason for denial was something non-criminal like failing to respond to an RFE or missing the interview. And then removal proceedings soon follow the 2nd denial. When your I-485 is denied they want you gone, they don't want you reapplying again and again when you're unlawfully present.

I also think there is something in the law or regulations that disallows applying for I-485 following a denied I-485 (even for Immediate Relatives), if you have no valid nonimmigrant status and have never departed the US and been readmitted since the denial. But I'll have to research that to confirm it.
 
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Jackolantern said:
That's how they operate. There are cases on this forum where the spouse of a US citizen got denied, reapplied, and got promptly denied again even when the original reason for denial was something non-criminal like failing to respond to an RFE or missing the interview. And then removal proceedings soon follow the 2nd denial. When your I-485 is denied they want you gone, they don't want you reapplying again and again when you're unlawfully present.
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I'd be very curious to see this. There's no basis for denying the subsequent adjustment if the first was denied for a reason that wasn't fatal to subsequent petitions like an inadmissibility issues.

I also think there is something in the law or regulations that disallows applying for I-485 following a denied I-485 (even for Immediate Relatives), if you have no valid nonimmigrant status and have never departed the US and been readmitted since the denial. But I'll have to research that to confirm it.
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Please do.
 
Hello

We have applied MTR and we will give it say 4 weeks. IF we do not get any response we will go ahead an refile the I485.

My question is when do we get the removal proceeding notice? My mother has not yet overstayed for more than 180 days. Obviously the last thing I want is she being arrested and going to jail.

Anyone, please help me with this question

Thanks
 
TheRealCanadian said:
I'd be very curious to see this. There's no basis for denying the subsequent adjustment if the first was denied for a reason that wasn't fatal to subsequent petitions like an inadmissibility issues.
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If a Notice To Appear has been issued prior to the filing and acceptance of the new I-485, that itself disqualifies the new I-485.

Perhaps USCIS sometimes manipulates the situation by noticing the person had a recent denial when they're about to enter the I-485 application details into the system. So this is brought to the attention of the supervisor, who says to issue an NTA for the old one (before performing the I-485 data entry), followed by a denial of the new I-485. So technically the NTA was issued prior to the I-485 being receipted.
 
Concerned4us said:
Given the potential consequences, you need to consult with an attorney and formulate a plan.
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Yes we did. What the attornety suggested was let us wait for the MTR for about 4 weeks since we got the NABC from India. However if no response is received in 4 weeks then we will go ahead and file the new I-485.
 
Jackolantern said:
If a Notice To Appear has been issued prior to the filing and acceptance of the new I-485, that itself disqualifies the new I-485.

when does the Notice to appear get issued. Is that anytime after the 30 day period mentioned in the denial letter

Perhaps USCIS sometimes manipulates the situation by noticing the person had a recent denial when they're about to enter the I-485 application details into the system. So this is brought to the attention of the supervisor, who says to issue an NTA for the old one (before performing the I-485 data entry), followed by a denial of the new I-485. So technically the NTA was issued prior to the I-485 being receipted.
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How does the removal proceeding work? Can we go in front of the judge and present the new documents that we now have.
 
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