previously approved i-140 revoked and i-485 denied. question on appeals

[sherlockkim]

Hello everyone and thank you in advance. Here's the case,

My mother's I-140 was approved in Sep 2004. Her PD is March 2003. Our PD became current on Jan 2009 (now the date has moved back as you all know), and she filed I-485 in Feb 2009. I (birthday Dec 1986) filed I-485 as well as her child. Our I-485 was pending since and we received EAD in May 2009. Through long time, I graduated college and I have been working with EAD since July 2010.

Recently, my mother's I-140 was revoked, and I-485 was denied as well. Main reason was lacking bona fide intention. Now we are trying to appeal I-140 and file MTR to I-485. Here is my question

1.
We recently changed our laywer to do appeal, and he suddenly says that I won't be qualified as a beneficiary when we appeal/MTR. In fact, he says our previous laywer made a mistake that I didn't qualified as a beneficiary anyway to begin with. But what I see from CSPA is, since my mother's I-140 was approved before I reached 21, and I filed I-485 within a year after PD became current, I am considered as a beneficiary. Also, the fact that I-485's been pending for over a year and they approved my EAD tells me that this won't be a problem. So I'm confused as our new lawyer saying I don't qualify. Can anyone know this well?

2.
Now if we file appeal for revoked I-140 and MTR for denied I-485 (first, I'm not even sure if we need to do both. won't I-485 automatically be reconsidered if appeal for I-140 is approved since I-485 denial was based on revoked i-140?) will I be in status? Am I alright to continue to work?

3.
Is filiing MTR means applying I-485 again? (if this is true, it leads another question that our PD is not current now, how can I-485 be applied? and what's our status as of now?) Or does it mean they look at the denied case again? then what's our status?


more questions remain, but need answers to these first..please help

 

[Jackolantern]

Her PD is March 2003.

Which country and category?

1. The relevant factor is how long the I-140 was pending. For the CSPA, you would subtract the I-140 pending time from your actual age to get your CSPA-adjusted age. Usually the I-140 is approved in less than a year (sometimes less than a month), so you won't have much to subtract. Based on your date of birth, it is almost certain that your CSPA-adjusted age was already 21 or older when your PD became current, which means you would not be protected by the CSPA.

2. Yes you should file both, otherwise they might just reinstate the I-140 and leave the I-485 denied. You can continue working if they haven't explicitly revoked your EAD. If the MTR is successful (i.e. they put the I-485 back into pending status) and you are CSPA-eligible, your status will be retroactively made legal throughout. However, if the MTR fails or if you are not eligible for the I-485 under the CSPA, you will have accumulated unlawful presence since the I-485 denial. Accumulating 180 days or 1 year of unlawful presence would make you subject to the 3-year or 10 year ban respectively.

3. No, the MTR (if successful) would revive the old I-485, it wouldn't be treated as a new I-485. PD doesn't have to be current at the time of MTR filing, nor does it have to be current to have the MTR acted on ("acted on" = I-485 changed from denied to pending status).

Did they give anything more specific about "lacking bona fide intention"? Did your mother ever work for the sponsoring employer while the I-485 was pending? Was the I-140 revocation initiated by her (former) employer?

 

[sherlockkim]

Thanks Jackolantern

EB3 rest of world

So as I check the law, I see that my previous lawyer missed this. how can he?!!!!!
anyone here familier with I-20 reinstatement? is it possible for me go back to I-20? law says a student who didn't extend I-20 due to "unexpected circumstances" in time can file reinstatement, I don't know wheter USCIS will see except this case..

Also, if my current employer can sponsor me H1B or if I can find other H1B sponsoring employer and apply for H1B, will the period between 30 days after the I-485 denial letter and H-1B approved date become illegal? can I even apply for an H1B at this point?

 

[Jackolantern]

You can't reinstate the I-20 now. A reinstated I-20 would put you back into F1 status, but they won't allow that because you already demonstrated strong immigrant intent by filing an I-485.

Do you know how long the I-485 was pending? You need to find this out in order to know if you're covered by the CSPA and thus eligible to have your I-485 reinstated.

You are accumulating unlawful presence since the I-485 denial (did you also have any unlawful presence before filing the I-485?). You can change to H1B with your current or another employer, but not directly due to the unlawful presence. You need to leave the US before accumulating 180 days of unlawful presence , then reenter the US with your approved H1B. That would require visiting a consulate to get the H1B visa stamped in your passport, unless you're Canadian.

 

[sherlockkim]

we filed I-485 in Feb 2009, so it has been pending since then. I dont think I qualify for CSPA, my previous lawyer screwed up...

I originally came with F-1 and had I-20 untill May 2010 so I didnt have any unlawful presence before. Even if we filed for the appeal, my presence is unlawful since the denial letter? how about 30 day grace period? If I can apply for H1B before the 30 day period (end of this month), do I still have to leave and come back? My passport is expired so once I leave it creates more mess........

about reinstatement of I-20, I talked with an international student officer and they say I can apply for that although not 100% guaranteed...are you saying even if I apply they will deny it because I once applied for I-485? this is not getting an F-1 visa though,,,do they still care about this?