Spouse I-485 denied

L

lostRFE

Registered Users (C)
RFE on the principal I-140 application was issued in first week of March 04, the RFE notice never reached the lawyer nor the employer though the lawyer contacted the BCIS customer service center couple of times and requested duplicate copies of the RFE notice.

Even before the 12 weeks period was up, for responding to the RFE notice (which we don't have in hand), BCIS issued a notice of denial (this is not a RFE notice) on my spouse I-485 application stating the I-485 application of the principal applicant was deined or withdrawn. This decision cannot be appealed.

I (the principal applicant) have not received such a letter of denial yet. My company is saying they have not withdrawn the case. The website and the phone system still gives the old message i.e the applications are pending following finger printing.

Both my spouse and I were using EAD (instead of H-1);

(1) Can we legally continue to stay in US if we decide to file an motion to reopen the case

(2) Can we continue to work-- I have not yet received any notice.

(3) What are the other options, as I-140 is still pending...

Thanks..
 
Here is my opinion. I am not 100% sure of the answers, but these are based on my rememberance of previous postings by people on similar subject. Anyway, if i am wrong, some body should correct here.

lostRFE said:
(1) Can we legally continue to stay in US if we decide to file an motion to reopen the case
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If you don't have a valid H1B, then you can't stay here. If the INS has not mentioned any time period for you to leave, then you need to leave immediately. What did your lawyer say on this subject ? If the principle applicant (your spouse) has an unexpired H1B, even if you used EAD, then your spouse can go back to his country for restamping and comeback on H1B.
That's why it is always advisable not to use EAD during GC process. H1B is much safer.
(2) Can we continue to work-- I have not yet received any notice.
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You can continue to work till you receive notice. But once you receive the notice, you can't work.

(3) What are the other options, as I-140 is still pending...
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It seems (based on the message) that your spouse's I485 is either denied or withdrawn. Either his/her company did some foul play or the adjudication officer has denied the case based on some grounds (previously going out of status for some time or I140 denial without waiting for the RFE reply because as per a new memo, the adjudication officers can straight away deny cases without sending RFE).
Once you get exact details of denial letter, then your lawyer should be able to advise you. Wish you all the best. If the unfortunate thing happens (I140 or I485 denial) then, you need to leave the country and comeback on a fresh H1B. The pending I140 is not going to be any help to keep you in status. It is I485 that matters for status .
 
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dsatish,

Thanks for the quick and detail response. Just a minor correction to your email, I am the principal applicant not my spouse.

re 1: Are you suggesting that if one decides to file a motion to reopen the file, the applicant needs to be outside the country (USA). My understanding based on the information available on the BCIS website is that the applicant could wait in the US during such time; however cannot avail the benefits of the pending I-485 applications, i.e. cannot use EAD and AP.

re 2: Is receiving a denial letter on I-485 means that one cannot work anymore or if there a separate letter of EAD revocation is mailed.

re 3: If the I-140 is still pending, can one re-file the I-485 application using the same labor, I-140 application.

4: Is it possible to file COS to F-1, B or anyother non-immigrant visa.

Not a great situation to be in.
 
lostRFE said:
re 1: Are you suggesting that if one decides to file a motion to reopen the file, the applicant needs to be outside the country (USA). My understanding based on the information available on the BCIS website is that the applicant could wait in the US during such time; however cannot avail the benefits of the pending I-485 applications, i.e. cannot use EAD and AP.
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You might be right. I guess that if you file MTR (Motion To Reconsider) within certain specified time (i think that it is 2 weeks) of the denial, you can stay here without working. Do a search on the key word "MTR" in this forum search tool and you can find relevant threads.

re 2: Is receiving a denial letter on I-485 means that one cannot work anymore or if there a separate letter of EAD revocation is mailed.
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If I485 is denied, your EAD automatically becomes invalid.
re 3: If the I-140 is still pending, can one re-file the I-485 application using the same labor, I-140 application.
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I don't think it's possible. If the I485 is denied, then all the underlying applications (LC, I140) become invalid for further use. The only option would be MTR.
4: Is it possible to file COS to F-1, B or anyother non-immigrant visa.
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Yes, it's very much possible. That's the best option. You better start those trails now itself. I know it's a HORRIBLE situation. I don't have courage even to imagine myself under this type of situation. The problem with them (INS) is lack of accountability. They are thinking that their authority can't be questioned and they are showing their power on helpless people like us.
 
Thanks dsatsih again.

re 3: My understanding is slightly different on this one, if the I-140 application is denied then the I-485 and therefore EAD and AP becomes invalid not the otherway around.

5. Is it possible to use a pre approved labor from same employer or another employer and file a new I-140 and I-485 application.

I know I am desperate man and trying to do desperate things..
 
lostRFE said:
Thanks dsatsih again.

re 3: My understanding is slightly different on this one, if the I-140 application is denied then the I-485 and therefore EAD and AP becomes invalid not the otherway around.
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I doubt if you can do that. Once you have filed a I485 based on a I140, then that I140 deems utilized. You can't use it again for another I485 application.

5. Is it possible to use a pre approved labor from same employer or another employer and file a new I-140 and I-485 application.
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Yes, it is 100% possible.
 
dsatish said:
I doubt if you can do that. Once you have filed a I485 based on a I140, then that I140 deems utilized. You can't use it again for another I485 application.
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Depends. If the I-485 was denied based on technical reasons and the alien remains admissible, another I-485 can be filed.

Put another way, if the alien files an I-485, and then a year later files an I-824 requesting CP. The approval of the I-824 will cancel the I-485, but the alien can still do CP since the underlying I-140 is still valid.
 
It seems your spouse's 485 was denied not yours. So your status is good-consequently spouse's.
As regards the msg that the spouse's was denied based on principal's denial you have to investigate that. RFE was issued not replied etc etc. What does your lawyer say. What was the RFE? Have you confirmed 140 is still approvd.
Worst case you can refile 485 as 140 has not been withdrawn.
HTH
 
sb_tiger said:
It seems your spouse's 485 was denied not yours. So your status is good-consequently spouse's.
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The letter states, spouse 485 was denied because principal(mine) 485 was denied. I have not yet received the denial notice yet so don't know the reasons for denial.

As regards the msg that the spouse's was denied based on principal's denial you have to investigate that. RFE was issued not replied etc etc. What does your lawyer say. What was the RFE? Have you confirmed 140 is still approvd.
Worst case you can refile 485 as 140 has not been withdrawn.
HTH
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We don't have mine 485 denial notice in hand so don't know why they denied it.


I-140 is still not approved, RFE notice on I-140 never reached the lawyer/company.
 
now I-140 approved

I am really amazed how BCIS works.

They issued RFE on I-140 which we never received, therefore never replied to the RFE. Today morning I received an email from BCIS that my I-140 is approved.

Looks like they decided to approve the I-140 and deny the I-485 application without issuing a RFE... I haven't received the denial notice on my I-485 application so don't know the actual reason for denial yet. I am so confused....

Another turn in the long GC journey.
 
I think you should just refile the 485 for your spouse. if yours is still valid then you should be ok. I cannot believe that because of RFE lost in the mail you will need to go back to your home country.

That is just unacceptable and I am sure you can appeal it. Did they not send you the duplicate copies also when your lawyer called customer service. What does the lawyer say ????
 
puneet_gcard said:
I think you should just refile the 485 for your spouse. if yours is still valid then you should be ok. I cannot believe that because of RFE lost in the mail you will need to go back to your home country.
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My spouse I-485 application is a dependent on my I-485 application and the reason for her 485 denial notice indicate as my 485 is denied or withdrawn, her application is denied.

That is just unacceptable and I am sure you can appeal it. Did they not send you the duplicate copies also when your lawyer called customer service.
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Lawyer requested duplicate copies twice and even faxed the request. One had to wait for 30 days before requesting duplicate notices. Even duplicate notices never reached the lawyer/company.

What does the lawyer say ????
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Lawyer is suggesting to wait for my i-1485 denial letter which should contain the reason why my 485 was denied. He is saying, he can't do much without knowing the reason for my denial...
 
This is silly and confusing. So did you change jobs before 140 approval? :eek:
Wait for 485 denial notice- if that is the case- else just send in AC21 papers. :confused:
 
sb_tiger said:
This is silly and confusing. So did you change jobs before 140 approval? :eek:
Wait for 485 denial notice- if that is the case- else just send in AC21 papers. :confused:
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Nup--- never changed the employer/lawyer.
 
Not sure if the following guidance has something to do in my case.. From http://www.immigration-law.com


---------------------------------------------------

06/02/2004: Concurrent Adjudication (I-140 + I-485) Guidance of USCIS HQ

As we reported earlier, on March 31, 2004, the USCIS issued a memorandum to the Service Centers to adjudicate concurrently for the concurrently filed I-140 and I-485. Accordingly, people may assume that since about May 1, 2004, the Service Centers have been processing concurrently filed I-140/I-485 cases separately and differently from the I-485 cases which were filed alone. Following are the guidance for concurrent adjudication of concurrently filed I-140+I-485 cases under the memorandum:

In the Service Center processing times reports, the concurrently filed I-485 processing time coincides with the I-140 processing time. In other words, for these filers, they should keep track of I-140 processing time and not I-485 processing time in the bi-weekly official processing time reports of the Service Centers. For them, I-485 processing time is the same as I-140 processing time. Meanwhile, those who filed I-485 separately should keep track of I-485 processing times in the bi-weekly reports.

For the concurrent adjudication filers, I-140 petition and I-485 application always stay together. This will result in two consequences: First, since I-140 is not adjudicated separately, the previous procedure of prima facie review of I-140 eligibility is more or less removed and discouraged. Second, in order for the I-485 adjudication to be completed in the same pace with the I-140 adjucation, the Service Centers will accelerate the name check and fingerprint job vigorously.

Actual adjudication of I-140+I-485 will not take place until I-485 application is ready to be adjudicated after completing the name check and fingerprint. Therefore, the concurrent adjudication files remain on the shelf until they are ready to be adjudicated together.

When it reaches actual adjudication process, the adjudicators are required to review both I-140 petition and I-485 application. In other word, if the adjudicator needs to issue RFE for I-140, the adjudicator should also determine whether another RFE should be issued for I-485, should there be the RFE issues in the I-485 application. If the petitioner (employer) fails to respond to I-140 RFE or to meet the eligibility requirement, the adjudicator will deny both I-140 and I-485. On the other hand, should the I-140 petitioner be successful in responding to the I-140 RFE and satisfies eligibility requirements, the adjudicator should approve the I-140 petition no matter whether I-485 applicant has successfully responded to the I-485 RFE. If the I-485 applicant fails to meet the RFE requirement, such I-485 will be denied, and more likely the petitioner will receive the I-140 approval notice and the alien will receive I-485 denial notice.

Plus side and Minus side of Concurrent Filing and Concurrent Adjudication: The big plus will be the processing times. If we look at the I-140 processing times, even though each Service Center differs, the average I-140 processing time is approximately one (1) year. It means that in the concurrent adjudication cases, people will get green card approval within one year or less. Then what is minus? What else, AC 21 180-day rule of change of employer. Since the alien can not change employment until after the I-140 petition is approved, those who lose the job will face a potential denial of the green card opportunity.
 
What about expedite fax?

lostRFE,
Maybe you should try to send an expedite fax.
Not sure, but as far as I remember one is elegible to send such a request in case if USCIS goofed up.
At least it is known that somebody reads those faxes and even replies to them.
 
PrinceOfDarknes said:
lostRFE,
Maybe you should try to send an expedite fax.
Not sure, but as far as I remember one is elegible to send such a request in case if USCIS goofed up.
At least it is known that somebody reads those faxes and even replies to them.
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Expedite fax requesting what?

(a) I-140 is approved recently.. nothing to request there

(b) have spouse I-485 denial in hand and cannot be appealed ---

(c) Request my I-485 denial letter, not sure if they will fax it to me as the website and phone system indicate my case is still pending..

What a mess.
 
Just tell them that they have a mess with your case

This is exactly the point of this fax line that you can tell them that they messed up your case. Make the fax very short and easy to read: nobody will read a 10 page story of life.
You can also attach copies of relevant documents.
Even if they will not take any action on your case, you can then write to senator telling that those morons at the USCIS screwed up your case and don't even want to fix it.
BTW, are you sure that your lawyer actually called USCIS?
Did you move while on I485?
 
PrinceOfDarknes said:
This is exactly the point of this fax line that you can tell them that they messed up your case. Make the fax very short and easy to read: nobody will read a 10 page story of life.
You can also attach copies of relevant documents.
Even if they will not take any action on your case, you can then write to senator telling that those morons at the USCIS screwed up your case and don't even want to fix it.
BTW, are you sure that your lawyer actually called USCIS?
Did you move while on I485?
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PrinceOfDarknes,

Can you provide the FAX number to send the Expedite fax.

I did move while my I-485 application was pending. New address is less than 5 miles away from my old address.
 
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