Update re: Family Based AOS

W

Wendy-Margaret

Registered Users (C)
Timeline
6/17/09 - Mailed I 485 & I 765
6/19/09 - Receipt Date
7/01/09 - Notice Date for EAD & I 485
7/06/09 - NOA for EAD
7/07/09 - NOA for I 485
7/09/09 - Biometrics notice (7/28/09 for EAD)
7/10/09 - Biometrics notice (7/31/09 for I 485)
7/28/09 - Biometrics completed for both (EAD & I 485)
8/21/09 - Card production ordered
8/26/09 - EAD received in mail today
Sept - Received SSN's for all the family
10/06/09- Interview with Immigration Officer, GC Denied

Now the Lawyer has to fight the case because they say the clause referred to in the 245i act does not pertain to us because the paperwork was filed since 1998......so we just have to wait and see what happens next :(

In the meantime we were given a letter from USCIS which stated that the case would be reviewed and they would write us within the next 6mths with a verdict.
 
Wendy-Margaret said:
Now the Lawyer has to fight the case because they say the clause referred to in the 245i act does not pertain to us because the paperwork was filed since 1998......so we just have to wait and see what happens next :(
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For love of God, find a competent attorney. 245i clearly states that you must have been physically present in the US on December 22nd, 2000. People have been trying to tell you this for months.
 
TheRealCanadian said:
For love of God, find a competent attorney. 245i clearly states that you must have been physically present in the US on December 22nd, 2000. People have been trying to tell you this for months.
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This is purely academic, but it was Dec 21, 2000. There is NO QUESTION that you have to find a competent attorney. At the very least talk to one more lawyer.
 
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TheRealCanadian said:
For love of God, find a competent attorney. 245i clearly states that you must have been physically present in the US on December 22nd, 2000. People have been trying to tell you this for months.
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It depends: If your I-130 petition was filed before Jan 15, 1998 then you do not need to be physically present in the US on Dec 21 2000 to qualify under 245i. Only those who filed after Jan 15 1998 and before April 30 2001 need to show proof of physical presence.
 
Iluvus said:
It depends: If your I-130 petition was filed before Jan 15, 1998 then you do not need to be physically present in the US on Dec 21 2000 to qualify under 245i. Only those who filed after Jan 15 1998 and before April 30 2001 need to show proof of physical presence.
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The date is January 14, 1998, the old deadline.
I think you are correct as the physical presence requirement on Dec 21, 2000 applies to the primary beneficiaries of immigrant petition/labor certification filed between January 15, 1998 and April 30, 2001.
 
Your lawyer is correct!!!!!

Wendy-Margaret said:
Timeline
6/17/09 - Mailed I 485 & I 765
6/19/09 - Receipt Date
7/01/09 - Notice Date for EAD & I 485
7/06/09 - NOA for EAD
7/07/09 - NOA for I 485
7/09/09 - Biometrics notice (7/28/09 for EAD)
7/10/09 - Biometrics notice (7/31/09 for I 485)
7/28/09 - Biometrics completed for both (EAD & I 485)
8/21/09 - Card production ordered
8/26/09 - EAD received in mail today
Sept - Received SSN's for all the family
10/06/09- Interview with Immigration Officer, GC Denied

Now the Lawyer has to fight the case because they say the clause referred to in the 245i act does not pertain to us because the paperwork was filed since 1998......so we just have to wait and see what happens next :(

In the meantime we were given a letter from USCIS which stated that the case would be reviewed and they would write us within the next 6mths with a verdict.
Click to expand...

Take a look at this link: http://www.uscis.gov/portal/site/us...nnel=6c6c3a4107083210VgnVCM100000082ca60aRCRD

and specifically:Eligibility Criteria


You may be eligible to receive a green card through Section 245(i) if you:

* Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001
* Were physically present in the United States on December 21, 2000, if you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001
* Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which you are grandfathered or through a subsequently filed immigrant petition)
* Have a visa immediately available to you
* Are admissible to the United States

In addition, the qualifying immigrant visa petition or the qualifying application for labor certification must have been “properly filed” (signed and submitted with the correct fees) and “approvable” (meritorious based on the facts and “non-frivolous”) when filed.

Depending on the circumstances, a spouse or child of a grandfathered individual may also be a grandfathered or may be eligible to adjust status as a dependent under Section 245(i) of the INA.

The red highlighted paragraph does not pertain to you since your petition was filed before January 14th, 1998

Also this is another lawyer's website opinion: http://www.pcurtislaw.com/adjustment-status-under-245i.

And a memorandum from USCIS: http://www.ansarilawfirm.com/docs/USCIS-Memo-Section-245(i).pdf

And the actual Law as written by Congress: http://ecfr.gpoaccess.gov/cgi/t/tex...iv8&view=text&node=8:1.0.1.2.37.0.1.10&idno=8

I am confident if your lawyer argues your case well USCIS decision will be reversed. Best of luck don't give up. Also make sure the priority date on the I-130 approval notice is before January 14th 1998. Sometimes USCIS error are very costly. Once your I-130 was filed before January 14th 1998 physical presence is not a requirement.

God bless you and your family.

I am not a lawyer
 
I believe I am incorrect in this situation, Wendy-Margaret. My apologies.

I think this is yet another example proving the adage that with a complicated case or severe consequences, please consult a competent attorney, not a forum poster. :(
 
* Were physically present in the United States on December 21, 2000, if you are the principal beneficiary and the petition was filed between January 15, 1998, and April 30, 2001
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Even though the requirement to be present on December 21, 2000 does not apply to those who filed before that period, that does not automatically mean that those whose petition was filed before that can arrive in the US whenever they want. There probably is some other cutoff date applicable to them, otherwise a family-based beneficiary (who is not an immediate relative of a US citizen) whose petition was filed before 1998 could arrive in 2009, overstay illegally, and still be eligible to adjust status.
 
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