Urgent: Need guidiance on when to send 1-485 application

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Iluvus

Registered Users (C)
Ok, here is the situation:

I-130 was approved 10 years ago under FB4 and our priority date is Sept 1997. We started out the application as CP , and based on that, INS recently sent us a letter asking us to provide further information and documents for the application, because according to them, when its within 9 months of your priority date coming current, INS would start working on your case. However we've been here in the US for years now, so we communicated back to INS stating that we would like to go through the AOS process instead of CP, then they responded that we should "confirm our intent to do the AOS process" and they listed everyone's names in the letter.

Now our lawyer feels that the letter from INS asking us to "confirm" signals to us that we can go ahead and send in the I-485 application now. Please bear in mind that current priority date on the visa bulletin for FB4 is March 1997 and our priority date is Sept 1997. Although INS had mentioned earlier that its ok to start on the application if your priority date is within 9 months from now, but I have a feeling that that is reffering to the CP process that we started out with. Now that we are intending to switch to the AOS process, would it be safe to go ahead and send the 1-485 application right now since we were told to "confirm" that intend to go thru the AOS process? Or is it better to just wait till our priority date becomes current before sending in the application? And if its better to wait, how do we respond to INS request that we should "confirm" our intent to do AOS?

Has anyone received this kind of letter from INS asking you to "confirm" your intent to do AOS after deciding to switch from CP? and if so, how did u respond to their request?

Our lawyer said she called INS office and someone there told her it was ok to send in the application now, but we just wanted to be double sure before doing that because although we are very eager to get our application started because we need our documents urgently, we've been through a lot with AOS issues, and having waited this long (10 years), and now paying the new fees, we dont want to risk another 1-485 denial due to "visa number unavailable" because our priority date is not current. So please advise.

Thank you in advance for your suggestions.
 
You can not submit an I-485 until your Priority Date is current, it will be denied if you do so.

Best bet, write a letter to USCIS, and send it back (to wherever that letter you received came from) and state your intention to go AOS. Also, keep a copy of the letter and make an infopass to your Local DO, speak to an immigration officer and ask about the situation and show them both a copy of the letter you received and the one you sent.
 
Thank you for your suggestion. Yes we have inquired from both the immigration office and the place we received the original letter, and both say it is ok to go ahead and send in the application now. Our lawyer intends to attach a copy of the response we received stating that we can go ahead and send the application in, but again, INS has been known for its inconsistencies in practice so I just wanted to find out if there was anyone who had been in this situation before or who knows about a similar situation where someone who was switching from CP to AOS sent in their application b4 priority date was current in resonse to INS request, and what was the outcome.
 
Iluvus said:
Yes we have inquired from both the immigration office and the place we received the original letter, and both say it is ok to go ahead and send in the application now.
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USCIS will NOT accept an I-485 if the priority date is not current. End of story.

Will your attorney refund your filing fees if it is rejected and the checks have been cashed?
 
OK thank you for the tip.

Also, I wanted to clarify something: You know it takes a while from the time INS receives your application to process it and call you in for an interview. What if we submit the application now, and by the time they finish processing it, the priority date has become current, will that work? or will they go back to the date they actually received the application and deny it based on the fact that the visa number was not available at the time? The reason why we are considering this is that we know that if INS can receive the application now, while it is still pending, we can have our work permit(EAD card), so that is one of the benefits of sending in the application early if possible. What do you think?

Also, how long does it take these days for INS to process an I-485 application, assuming everything goes ok and you dont get stuck in name check?

Thanks in advance for your opinions.
 
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Iluvus said:
OK thank you for the tip.

Also, I wanted to clarify something: You know it takes a while from the time INS receives your application to process it and call you in for an interview. What if we submit the application now, and by the time they finish processing it, the priority date has become current, will that work? or will they go back to the date they actually received the application and deny it based on the fact that the visa number was not available at the time? The reason why we are considering this is that we know that if INS can receive the application now, while it is still pending, we can have our work permit(EAD card), so that is one of the benefits of sending in the application early if possible. What do you think?

Also, how long does it take these days for INS to process an I-485 application, assuming everything goes ok and you dont get stuck in name check?

Thanks in advance for your opinions.
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If the receive the application and the PD is not current, then denied or returned to you. Period.
 
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