My Son's i485 got denied - Please advise for travel

[haisylu]

My wife and I have GC and we have applied GC for my Son and he received, i765, i131 and also his EAD approved. Last week we got a denial notice for his i485 which i'm working with my office attorneys to assess to respond back.

I've booked tickets to go to India this August and is it ok to travel with his i131? Please advise. If I can take my Son to India, do I need to get any additional document other than i131. His VISA in the passport is an expired one. While coming back how can I show a status where the GC is in progress?

Thanks,
Sylace

[inadmissible]

His AOS derivative documents are no longer valid now that the underlying AOS has been denied. He will not get granted parole upon his re-entry.

He should not travel abroad if it would trigger the ground of insdmissibility arising from his accrual of more than 180 days of unlawful presence. He will not be granted an immigrant visa abroad until his ban lapses

[Standing]

Do not travel

He will not be able to return

[haisylu]

Thank you

Thanks for your response and I got a similar response from the attorney as well.

[newacct]

He should not travel abroad if it would trigger the ground of insdmissibility arising from his accrual of more than 180 days of unlawful presence. He will not be granted an immigrant visa abroad until his ban lapses

The OP didn't say what age the son is, but someone under 18 does not accrue "unlawful presence" for the purposes of the 9B ban. Also, someone (no matter what age) does not accrue "unlawful presence" while AOS is pending no matter if it is ultimately approved or denied; since his AOS was just denied, it's highly for him to have enough "unlawful presence" to trigger a ban on departure. But I agree that he shouldn't leave because it's better to fix whatever was the problem with the filing and re-file AOS rather than wait for an immigrant visa abroad.

[inadmissible]

Interesting question is why I-485 was denied in the first place

[haisylu]

Attaching the responses.

AMinadmissible

Can you please take a look at these and advise plz. My son is 17 years old now. He will be a high school senior this fall.

[newacct]

images are too small; can't read it

[inadmissible]

The pictures are small and unclear. Perhaps we should start from the beginning. For the three of you, what are your immigration histories, and the basis for applying for permanent residency? For your son specifically, was he out of status at any point between his last admission to the United States and when he applied for permanent residence? Does he have a criminal record?

[newacct]

I can make out a little bit of the the images which seems to be quoting INA 245(c)(2), which is the bar to AOS for being out of status or having previously been out of status. It also talks about INA 245(k), which applies if the person is in an employment-based category (and your son is immigrating as your derivative beneficiary so he has the same category as you which I believe is employment-based), INA 245(c)(2) does not apply as long as he hasn't been out of status for 180 days since the most recent entry. It seems to be saying that that cannot be used because your son has been out of status for more than 180 days since the most recent entry, saying that he went out of status as an L-2 derivative in July 2016 when the L-1 principal became a permanent resident, and the current I-485 was only filed in February 2017, more than 180 days later; and it also mentions that another I-485 was filed in September 2016 but it was denied in December 2016 because a visa number was not available for the category and priority date at the time of filing. (Notably, September is at the end of the fiscal year when they use Final Action Date charts for deciding whether someone can file AOS, and starting in October they use the Date for Filing charts which allow much later priority dates to file, so he might have been eligible to file in October, but it's too late to think about that now.) And one I-485 filing does not stop the 180-day 245(k) clock for a subsequent I-485 filing.

If it was indeed true that his status ended more than 180 days before the current I-485 filing then the current I-485 was denied correctly because he was not eligible to file, and he will not be eligible to file another I-485 either. (If you don't think his status ended until later (though I don't see how if the L-1 really got permanent residency at that time), then maybe it can be reopened.) If you think the previous September I-485 was denied incorrectly (e.g. if you think that a visa number was available, though they are unlikely to make this mistake), you should have tried to reopen that one instead of filing another one.

I am not sure why you filed in September when a visa number was not available, and filed again in February when it was too late to use 245(k). If a lawyer did either of these filings I would fire them because it should have been obvious that your son was not eligible to file at either of these times and it not only wasted your money, but probably caused your son to miss a time when he could have been eligible to file (e.g. in January before he hit 180 days).

Assuming the denials were correct, Adjustment of Status is not possible for your son. His only option is Consular Processing abroad. As long as he's under 18.5 when he leaves the US, he won't trigger a ban because he doesn't accrue "unlawful presence" while under 18. Switching from Adjustment of Status to Consular Processing is a pain because it probably requires filing I-824 to move the petition from USCIS to NVC, and this may take up to a year.