Problem...

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onemorning86

Registered Users (C)
I didn't know what to title this, I apologize, but here is my problem as best as I can describe it:

My dad is the petitioner, my mom is the beneficiary, and I would be eligible through her.

Anyway, my mom got a letter from the Visa Center in 2005 saying that she was eligible for a visa number but that she could not adjust here.

A student-lawyer that was helping us sent Immigration a letter saying that my mom would find it very difficult to travel to our home country to adjust and asking if the case could be sent back here.

Immigration sent us a letter saying that our petition was approved and that we can file the 485-i with the letter the Visa Center sent us--the letter from Visa says that we are not eligible to adjust here. Is that going to create a problem?

Also, my mom and I overstayed our visitor visas and thus have been here illegally for many, many years. However, my parents sent the i-130 before April 30, 2001 so that we could fall under the 245(i) law. The letter from the Visa Center has the dates of when the letter was received and filed at the top and the date received says May blah, 2001. My parents specifically sent the petition on an overnight shipping and everything so that it would get to immigration before April 30, 2001, but apparently they didn't open it in time or something and we don't have proof of the postmark. Are we...screwed? Can we send them a letter explaining?

Please help, and please ask if you need more information in order to help. I am so sick of this process; I'm sick of feeling so helpless. :(
 
Somewhere in your mess of paperwork. Something such as receipt notice or approval notice regarding the I-130 will have a receipt or priority date identified. What is that date and how is it labelled?

What was dad's status when he filed and what is it right now? Fow old were you then and how old are you now?
 
The received day says May 28, 2001. I was 9, I am 19 now. My dad was a resident then, is still a resident now.
 
You have a bit of reading to do. Please keep us updated.

You need to do some more digging. You probably need to submit a FOIA request to get the a copy of the actual postmark from the envelope that your dad sent he I-130 in from the file. Get the FOIA Request form at www.uscis.gov The petition and its envelope may be in a receipt file or an A-file if you or your mom got A#'s assigned way back when. It could take some doing to prove eligibility for 245(i).

Around the time of the "sunset date" for the last round of 245(i) petition filing, INS (now USCIS) was bombarded with mail. Multiple flatbed semi-tractor trailers worth of mail was delivered in the matter of a few days at each Service Center that accepted the filings. Many mistakes were made by the under-trained, underpaid, overworked, contract clerical staff. They had NO CLUE of the importance of the filing date. They continued to work their way through the backlog of stacked up mail for weeks. They date stamped envelopes received and changed the dates on their date stamps everyday when, in fact, the mail had been received much earlier. They continued that error in data entry of the petitions into the computer system. The date on your paper is probably wrong. That is why the postmark became so important.

To make matters worse, at the California Service Center, there was a scandal involving a document shredding incident. If dad filed it ther, there may be further opportunity to make your case for 245(i) eligibility.

SEE: http://www.uscis.gov/files/pressrelease/FedIndicRegDocShred_013003.pdf and http://www.uscis.gov/files/pressrelease/Section245iAdjStatus_042001.pdf and http://www.uscis.gov/files/pressrelease/lif53101.pdf

Start here: http://ecfr.gpoaccess.gov/cgi/t/tex...iv8&view=text&node=8:1.0.1.2.37.0.1.10&idno=8

INA 245(i) has a cut off date for the proper filing of the I-130. It had to be filed on or before April 30, 2001, and which was approvable when filed.
66 FR 16384-16385 http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=16384&dbname=2001_register

When Is an Immigrant Visa Petition ‘‘Properly Filed on or Before April 30, 2001’’?

To be considered properly filed, for purposes of grandfathering, the immigrant visa petition must be physically received by the Service prior to the close of business on or before April 30, 2001, or if mailed, be postmarked on or before April 30, 2001. The Service is applying the exception for grandfathering visa petitions contained in the regulations at 8 CFR § 103.2(a)(7), which require that a petition must be physically received and stamped by the Service in order to be considered properly filed. For the purpose of grandfathering under section 245(i) of the Act (8 U.S.C. 1255(i)) only, the Service will accept as properly filed, visa petitions that are postmarked on or before April 30, 2001. In addition, given the April 30, 2001, sunset date, the Service notes that it will accept visa petitions that contain at least the minimum amount of information required by 8 CFR 103.2(a). Petitions that do not contain the names of the petitioner and the beneficiary, the proper fee, and the signature of the petitioner will not be accepted for filing.

When Is an Immigrant Visa Application ‘‘Approvable When Filed’’ for Grandfathering Purposes?

Not all immigrant visa petitions that are properly filed on or before April 30, 2001, will serve to grandfather the alien beneficiary for purposes of Section 245(i) of the Act (8 U.S.C. § 1255(i)). In interpreting the language of Section 245(i) since it was amended in 1997, the Department has also required that the visa petition must have been ‘‘approvable when filed’’ to qualify the alien beneficiary for grandfathering. ‘‘Approvable when filed’’ means that, as of the date of filing the immigrant visa petition, the petition was properly filed, meritorious in fact, and nonfrivolous (‘‘frivolous’’ meaning patently without substance). For example, a visa petition is not approvable when filed if it is fraudulent or if the named beneficiary did not have, at the time of filing, the appropriate family relationship or employment relationship
that would support the issuance of an immigrant visa. As noted, the Department recognizes that some immigrant visa petitions may be filed initially without all of the
necessary information for the Service to adjudicate the petition. In that case, the existing regulations at 8 CFR 103.2(b)(8) provide a process for the Service to
request additional evidence and to allow the petitioner a period of 12 weeks to submit that additional evidence in support of the petition. It is important to note, though, that all eligibility requirements must be satisfied before an immigrant visa petition can be approved. A visa petition will not qualify an alien for grandfathering unless the Service is able to determine, based on the available information (including additional evidence submitted by the petitioner after the filing of the petition) that the petition was approvable when filed. If the Deparment has already approved the visa petition at the time the alien files an application for adjustment of status, it was approvable when filed, except as discussed below, and thus provides a basis for grandfathering. However, a visa petition may still serve as the basis for grandfathering even if it has not been adjudicated by the Service as of April 30, 2001. As discussed below, the adjudication of the visa petition on the merits is distinct from the question of whether the petition qualifies for grandfathering because it was approvable when filed.
 
Okay, thank you. I'll have my dad write a letter to immigration to ask if they can check our records to see if we are eligible.
 
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