Urgent help on 485 denial

[Pankajman]

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Hi, everyone,
Thank you all for your help! I really appreciate everyone's help, especially Jackolantern and TheRealCanadian.
I have received all the help I can immagine and it's a pleasant surprise.

Again, thank you all!


To Jackolantern/TheRealCanadian,
I was asked to delete this thread. Can you do me a favor to delete the other thread as it is locked and I can not change it any more. Or can you just unlock it and I can go in and delete it.
Thank you for your understanding!

 

[Jackolantern]

4. After that, my girl friend’s case is processed by USCIS and USCIS denied her case because her mother is no longer a green card holder, but a US citizen. It is a bizarre reason to deny we believe, but there is nothing we can do at this moment to change USCIS’s decision.

There is another similar case: http://forums.immigration.com/showthread.php?t=297247

Either it is a strange unintended consequence of the law, or USCIS is misinterpreting the law.

If the judge maintains USCIS’s decision, she will be deemed as illegal for the entire period of time when she was a dependent in her mother’s 485 case in US, which means she will never come back to US.

Who told you that? Even if the court upholds the denial, she was still eligible for the I-485 all the way until the day before her mother became a US citizen, so the illegal presence should start on or after the day her mother became a US citizen.

But whether they accrue the illegal presence all the way back to her I-485 filing, or only back to her mother's naturalization, she still can't adjust status with you, because her new I-485 needs to be filed when she is still in legal status. Given her situation, you'd have to be a US citizen for her to be eligible for I-485 by marrying you.

 

[Jackolantern]

Ask her US citizen mother to write to her Senator and/or Congressperson about this. If the law really supports this denial, they need to be urged to change the law to remove this wrinkle or alter the ambiguous sections to avoid it being interpreted in this odd way. Obviously Congress did not intend for a derivative beneficiary to lose eligibility to adjust status when the parent who is the primary beneficiary becomes a citizen; the intent was for derivatives to be approved at about the same time as the primary. If there is wording in the law that says the eligibility is lost when the primary is no longer a permanent resident, the "no longer a permanent resident" they imagined was referring to cases where the LPR leaves the US or dies, not cases where the LPR naturalizes.

 

[TheRealCanadian]

1. Since my 485 is pending, can we get married and add her as my dependent in my 485 case? Will this help her to get a green card? Will the immigration officer review her case and find out the previous denial?

She is not eligible to file another I-485, since she does not have a valid non-immigrant status, and I assume the B expired over 180 days ago.

She has started accumulating illegal presence from the day of the I-485 denial. I would recommend she leave the US prior to 180 days, and try Consular Processing as a dependent of yours.

 

[Pankajman]

Thank you, Jackolantern & TheRealCanadian, for your input!
So I think adding her in my 485 won't help. Then we don't have many options now.

If you were in my shoes, how would you write to the congressman? What would you address to get the attention?

Can I write to my congressman even though I am not US citizen?

Other than writing to the congress man, what else would you try?

Thanks!

 

[Jackolantern]

Thank you, Jackolantern & TheRealCanadian, for your input!
So I think adding her in my 485 won't help. Then we don't have many options now.

But the option for consular processing as your dependent is available if she leaves before accumulating 180 days of unlawful presence, which should be possible if they don't make her illegal retroactive to I-485 filing. But I don't expect that to happen -- her unlawful presence should start counting from the I-485 denial, or at worst the date of her mother's naturalization.

Can I write to my congressman even though I am not US citizen?

If you're not married to her I think think they'll ignore you. It would be much more effective if her mother wrote, as she is a US citizen, and she is the primary applicant therefore she would be viewed as having a more legitimate stake in this case. Encourage and help her mother to write to the Congress(wo)man or Senator.

 

[usnycus]

Add her as your dependent. And, once your I-485 is approved try to bring her back to US on "Follow-To-Join" (FTJ).

Check following for FTJ details:

http://forums.immigration.com/showthread.php?t=96693&page=140

Thank you, Jackolantern & TheRealCanadian, for your input!
So I think adding her in my 485 won't help. Then we don't have many options now.

If you were in my shoes, how would you write to the congressman? What would you address to get the attention?

Can I write to my congressman even though I am not US citizen?

Other than writing to the congress man, what else would you try?

Thanks!

 

[Pankajman]

Thank you all!

Hi, everyone,
Thank you all for your help! I really appreciate everyone's help, especially Jackolantern and TheRealCanadian.
I have received all the help I can immagine and it's a pleasant surprise.

Again, thank you all!


To Jackolantern/TheRealCanadian,
I was asked to delete this thread. Can you do me a favor to delete the other thread as it is locked and I can not change it any more. Or can you just unlock it and I can go in and delete it.
Thank you for your understanding!

 

[TheRealCanadian]

But the option for consular processing as your dependent is available if she leaves before accumulating 180 days of unlawful presence, which should be possible if they don't make her illegal retroactive to I-485 filing.

They can't - illegal presence cannot be retroactive. If the I-485 was approveable when filed, which it appears to be, then she remains in valid status until the I-485 was denied. Illegal presence doesn't start until that point - it does not start at the point one became ineligble to adjust.

if her mother wrote, as she is a US citizen, and she is the primary applicant therefore she would be viewed as having a more legitimate stake in this case. Encourage and help her mother to write to the Congress(wo)man or Senator.

It's certainly worth a try, but I wouldn't count on it and I certainly would not stay in the US after 180 days. Once the 3/10-year bars kick in, her only hope would be private legislation, which is exceptionally rare.