My daughter's I-485 got denied

L

lianlian

Registered Users (C)
-- Her I-485 receipt date was 08/26/2003
-- her PD should be my PD (Aug 2000)
-- E26 Derivative adjustment category
-- My green card was approved in June 2003.

The reason to be denied is due to my status changed from LPR to USC (I became USC in Oct 2008). However, her online case status remained as "Card Production Ordered" from 10/25/2007 to at least 10/17/2008 which was prior to my citizenship thing, but we never physically received the card nor the welcome letter or approval notice. She had to do her I-485 fingerprints for 4 times... and has been over 21 year old now...

At the end of the denial letter, it states: "There is no appeal to this decision. However, the applicant may file a motion to reopen in accordance with 8 C.F.R. 103.5. Furthermore, this decision is without prejudice to future applications filed with appropriate USCIS office."

1. What would 'a motion to reopen' do?
2. What are our options?

Many many thanks in advance!!!

a desperate mother
 
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anyone could please help???

will have a meeting with a very expensive new lawyer... but would like to get some ideas on what we should do ...what we should not do... before meeting him (don't want to get screwed up again...i had relied on my old lawyer too much, did not do my homework but let my old lawyer screwed my daughter's case...) please help me,

a desperate mother
 
Did you not attempt to get her passport stamped after failing to receive the card after 30 days since the status became "Card Production Ordered"? Can you post more details of the denial letter, including the reason?
 
lianlian said:
1. What would 'a motion to reopen' do?
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If accepted, the motion would reinstate the pending I-485, and they would review the facts and eventually give another decision. However, they are unlikely to accept it unless you can show that it was their error that led to the denial. If they denied it because you became a USC, that almost certainly is an error.
2. What are our options?
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You got "Card Production Ordered", so maybe the denial letter itself is an error. Make an Infopass appointment, take the receipt notice for her I-485 and ask them what the current status of the case is. Don't say you got a denial letter (unless specifically asked), just tell them you saw "Card Production Ordered" online in 2007 but the card is still not received.
 
the denial reason is because my status change from LPR top USC

below is the reason i just typed:

The record shows that your mother, adjusted status to that a lawful permanent resident in June 2003. In October 2008, she becomes a US citizen by naturalization. Since the principal alien is now a US citizen, you are no longer eligible to adjust status as a derivative alien.

the evidence of record does not establish that you qualify as the derivative of another adjustment applicant or of a person granted permanent residence.

In view of the above, it has been determined that you are not eligible for the benefits of Section 245 of the Act, as amended. Accordingly, your application for adjustment of status to the a lawful permanent resident must be, and is hereby, denied."

we went to infopass back in Feb 2008 and were told they (INS) could not do any stamp for my daughter (we did not find out the online status changed to "Card Production Ordered" until Feb 14, 2008, while the "card production ordered" updated on 10/25/2007). since then (02/14/08), we did all kinds of following up ... and finally got an interview... and then a denial letter after interview. the fact is that it was her fingerprints that were not readable by INS machine; therefore the card was never made. I was not a USC at the time when her case was adjudicated (Card Production Ordered on 10/25/07).

Q1: any chance to turn this over by filing MTR....?
Q2: if we lose MTR, what else we could do (go to a higher court?)
 
lianlian said:
Q1: any chance to turn this over by filing MTR....?
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Yes ... it seems their error was that they failed to recognize that you were not a US citizen at the time of her I-485 filing, and were treating her case as if it was a fresh I-485 being filed with the principal already being a US citizen. Point out that error (with appropriate wording and legal references written by the lawyer) and the MTR should be accepted. Unless there really is some stupid provision in the law that actually voids an already-pending I-485 when the principal beneficiary becomes a USC (and of course, the lawyer can research that).
Q2: if we lose MTR, what else we could do (go to a higher court?)
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If you lose the MTR and you and your lawyer are still convinced that USCIS did not correctly follow the law, you can take it to court.
 
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File MTR through good lawyer and your daughter will get I-485 approved.

If the fingerprint is problem then Fingerprint technician can take Fingerprints on Card second time. If Finger prints are rejected three times then you are supposed to get Police clearance from the places you stayed and USCIS sends letter to applicant about that. If they had FP problem why they did not sent letter to go for FP again so that Card can be produced. FYI the card production ordered message comes after I-485 is approved. Did you got email or online status message that I-485 approved or just “card production ordered) If you have the online Prinouts or Email prinouts keep with you.
Her PD was Aug 2000. Why USCIS did took that much time to approve Derivative Applicant when Primary got I-485 approved and Dervative filed I-485 when Primary I-485 was pending or with primary I-485?. Your lawyer can fight out and can get it sorted.
It is USCIS mistake.
Good Luck!!!
 
If they approved the I-485, which apparently happened because you got the "Card Production Ordered" status message, they can't take it back by just sending a denial letter. They would have to go through the rescission process where they would have to show the case was approved in error. So for this MTR you ultimately want and may be able to get the original approval reinstated, not just have the I-485 go back to pending.

You also have the added "ammunition" that the I-485 took an excessively long time to be processed (4+ years is really outrageous with an EB2 PD of 2000), so if it goes to court and you can't get the approval reinstated, you can use that delay to try to convince the judge him/herself to decide the case right then and there instead of putting it back into I-485 pending status for USCIS to make a decision later. Discuss these options and approaches with the lawyer.
 
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thank you all for your golden advice and great help

Q1 what would the "rescission process" do ... what is the actual process? (not sure where I could find its defination to edcate myself first.. tried to google it ...)? I am afaid they (CIS) just say the "Card Production Ordered" was an error or accident ... how do we know the real truth or the point of time when my daughter's case was adjudicated since we have no access to their system/files

Q2 the same question for "Ammunition" (definition & process?) should this Ammunition be added into MTR or is it a different form?

millions of thanks for your gold advice/guidance during our family's most difficult/desperate time.
 
ginnu said:
File MTR through good lawyer and your daughter will get I-485 approved.

If the fingerprint is problem then Fingerprint technician can take Fingerprints on Card second time. If Finger prints are rejected three times then you are supposed to get Police clearance from the places you stayed and USCIS sends letter to applicant about that. If they had FP problem why they did not sent letter to go for FP again so that Card can be produced. FYI the card production ordered message comes after I-485 is approved. Did you got email or online status message that I-485 approved or just “card production ordered) If you have the online Prinouts or Email prinouts keep with you.
Her PD was Aug 2000. Why USCIS did took that much time to approve Derivative Applicant when Primary got I-485 approved and Dervative filed I-485 when Primary I-485 was pending or with primary I-485?. Your lawyer can fight out and can get it sorted.
It is USCIS mistake.
Good Luck!!!
Click to expand...

after 5 years and 8 months of worrying, waiting, anxious and constantly following up with whoever I could reach for my daughter's I485 derivative adjustment application, but at the end of day, it's denied. where is the justice?

-- She filed I485 Derivative Adjustment application in August 2003 (she came to US in May 2003) to join me and my green card was approved in June 2003.

She did FP for 4 times: first time: in 2003; 2nd time: April 2007; 3rd time Oct 2008 and 4th time Nov 2008

Medical exam two times: 1st time: in 2003 when we submitted application & 2nd time was on 10/05/2007.

Card Produciton Ordered on 10/25/07... and remained like this to at least 10/17/08 (I have card ordered printouts dated on 02/14/2008 & 10/17/08)

I became USC on 10/06/08

my daughter interviewed on 03/19/09

denial letter: 05/4/09
 
Jackolantern said:
Yes ... it seems their error was that they failed to recognize that you were not a US citizen at the time of her I-485 filing, and were treating her case as if it was a fresh I-485 being filed with the principal already being a US citizen. Point out that error
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Is that actually an error? This is one of those obscure bits of immigration law trivia that I doubt we'll ever see again, but I wonder if she is eligible to adjust status as a derivative if the principal alien naturalizes before the adjustment is approved.

If one loses FTJ eligibility when the principal beneficiary naturalizes, then USCIS has made no error.
 
lianlian said:
Q1 what would the "rescission process" do ... what is the actual process? (not sure where I could find its defination to edcate myself first.. tried to google it ...)? I am afaid they (CIS) just say the "Card Production Ordered" was an error or accident ... how do we know the real truth or the point of time when my daughter's case was adjudicated since we have no access to their system/files
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http://www.shihab.net/lawyer-attorney-1366477.html
If a green card was granted based upon mistake, fraud or other similar matters, the United States Citizenship and Immigration Services (USCIS) could issue a Notice of Intent to Rescind (NOIR) or in other words the USCIS could take back an approved green card. This action is rarely taken due to the serious adverse legal consequences and due to the requirement that the USCIS follow certain due process procedures.
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Q2 the same question for "Ammunition" (definition & process?) should this Ammunition be added into MTR or is it a different form?
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The wildcard here is that you apparently don't have any solid evidence that the case was approved. However, if it goes to court, USCIS can be compelled to produce the internal electronic and paper records related to the application, so that is how you could get the evidence that the card was approved. If those records show it was approved, your lawyer could ask the court to make USCIS produce the card dated back to the original approval date (Oct. 2007?) instead of putting the I-485 back into pending status or giving a new approval date.

If the records show the card was not approved, you can use the excessive delays as a reason to request the judge to decide the I-485 application right there in court instead of sending it back to USCIS, as the court has the authority to make the decision itself when USCIS has created unreasonable delays.
 
TheRealCanadian said:
If one loses FTJ eligibility when the principal beneficiary naturalizes, then USCIS has made no error.
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If that is indeed the rule, and USCIS did not actually approve the case back when the Card Production Ordered message was given, the denial would not be in error.

But I have searched high and wide and couldn't find anything to support that an already pending I-485 would get voided upon the principal beneficiary's naturalization, although I do remember seeing something to the effect of rendering the derivative ineligible if the principal is already a USC before the derivative's I-485 is filed. However, in the latter case, in most cases the USC could simply file an I-485 for the spouse or under-21 child as an immediate relative, so no harm done.

The bottom line is that the OP needs to consult a lawyer to find out if the denial is legitimate, and to challenge it if it isn't.
 
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but what if the principal die?

TheRealCanadian said:
Is that actually an error? This is one of those obscure bits of immigration law trivia that I doubt we'll ever see again, but I wonder if she is eligible to adjust status as a derivative if the principal alien naturalizes before the adjustment is approved.

If one loses FTJ eligibility when the principal beneficiary naturalizes, then USCIS has made no error.
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Q1: what is FTJ eligibility?

Q2: what if the principal suddenly die, is his/her child's I-485 application still valid? what does the law say?

My daughter's I-485 EB2 Derivative Application was in August 2003... because USCIS does not have a right (higher tech) machine that can read my daughter's fingerprints back in October 2007; otherwise, my daughter would have already got her gc...

Why did not USCIS ever warn / inform me that my daughter's case was linked to my LPR status when I did my N400 application...they interviewed me... naturalized me without telling me the consequence ... I got punished by becoming an USC and my daughter got penalized by USCIS fingerprint machine.

We had already spent 10K in lawyer fees for my daughter's I-485...and there will be another 20K estimates for next step.... we don't how much will cost us for the 3rd, ... or may be 4th step.... just for a simple I-485 EB2 Derivative Adjustment case.... where is the justice.... My daughter and I are clearlly the victims of this so inefficient immigration system and where is the sense of fairness in this country?
 
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lianlian said:
Q1: what is FTJ eligibility?
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FTJ = Follow-to-join, which is when you file an I-485 or consular process for your spouse or child as a derivative beneficiary, after you the primary beneficiary already became a permanent resident.

When was your own I-485 filed, and why wasn't your daughter's own filed at the same time?
Q2: what if the principal suddenly die, is his/her child's I-485 application still valid? what does the law say?
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I believe the I-485 would be canceled, but there may be ifs and buts and court precedents giving exceptions to that.

We had already spent 10K in lawyer fees for my daughter's I-485
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$10K for a child's I-485? That's outrageous and you could have done it yourself without a lawyer.
...and there will be another 20K estimates for next step....
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$20K to file a Motion to Reopen? Or $20K for the entire follow-up until and including a court appeal? If it's $20K just to file the MTR, that is outrageous.
 
Jackolantern said:
I posted a thread in the US citizenship section asking what happened to their children's I-485 if it was still pending at the time of their naturalization.
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It'll be interesting if you get a response. I've been reading and posting about US immigration for 12 years and this is the first time I've heard of such a situation, and I'll probably go another 12 years before I hear about it again.

Although with CPSA it'll be a bit more likely, it's shocking that the adjustment was allowed to linger for so long.
 
my daughter's case was not FTJ

TheRealCanadian said:
Is that actually an error? This is one of those obscure bits of immigration law trivia that I doubt we'll ever see again, but I wonder if she is eligible to adjust status as a derivative if the principal alien naturalizes before the adjustment is approved.

If one loses FTJ eligibility when the principal beneficiary naturalizes, then USCIS has made no error.
Click to expand...

My daughter's I-485 was EB2 Derivative Adjustment...not FTJ. She came to US with a non immigration visa... and then filed I-485 application after my green card was approved.
 
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