I-485 Denied but I-130 Approved

[DKoc]

Hi Everyone,

Thank you for reading my questions in advance. I am a permanent resident in the U.S. and I petitioned for my wife by filing I-130 while she was a graduate student and legally present in the U.S. . While I-130 was still pending we filed for I-485 based on our priority date and the fact that she was working in the U.S. with her OPT. Recently we had the interview and found that our I-130 was approved while I-485 was denied with the argument that at the time of our application I-130 was not yet approved. We also received a notification that her EAD card that was given for the I-485 application will be revoked unless we can provide proof that her I-485 is still pending. However, in the USCIS website it is not mentioned that you need the I-130 approved for being able to apply for I-485 change of status. I am also 100% certain we filled out and filed her adjustment of status after her priority date became eligible. Therefore we believe (and my attorney as well) that USCIS erroneously denied her I-485 application. My questions are:

- In this case would applying for a motion to reconsider make her I-485 still pending or would she lose that EAD card no matter what?

-Since her OPT is ending within a month we are worried that she will be out of status until a new EAD card is sent if we file for a new I-485. What would be the best strategy so that she can still remain and work in the U.S. without breaking any laws?

-What would happen if we file a new I-485 and she continues to work in the U.S. considering that they made an error while denying I-485?

-Lastly where in USCIS website does it say that you need to have I-130 approved for applying to I-485? (I just want to make sure that we have not done a mistake in this matter)

Thank you again!

[Enub4]

When was the I-130 filed? When was the I-485 filed?
You need to double check if there is no other issue before trying to reconsider.

Because I-130 is approved, I guess you can file a new I-485. If you file a new I-485, she shouldn't work if she doesn't have a valid EAD.

[DKoc]

I-130 was filed in November 2017 while her I-485 was filed in August 2018 we were in F2A family preference (meaning that she is a spouse of a permanent resident). You are spot on that is the issue with filing a new I-485 she can't work until she receives a new EAD card. That's why I am thinking about motion to reconsider but would that make her old EAD active again since the I-485 would be pending?

[Enub4]

I'm no expert, but looking at the August 2018 visa bulletin here: https://www.uscis.gov/visabulletin-aug-18 it say 01DEC17 and if I-130 was filed in November 2017, then it looks like they made a mistake, as you and your lawyer think.

From what I read from: https://www.uscis.gov/family/family-...nent-residents and https://www.uscis.gov/greencard/visa...priority-dates you correctly filed I-130 NOV17 and waited for the visa bulletin to file I-485 when the date reached 01DEC17

What they should have told you at the interview, is that they can't approve the I-485 because there are no visa available yet (for April 2019 visa bulletin FAD is 15MAY17 except Mexico 01MAY17), so still has to go to 01DEC17 for the Final Action Dates for your wife to be able to get a visa, but definitely not deny the application.

I'm no lawyer and I don't have experience, maybe motion to reconsider is an option, you have to talk with your lawyer about that. This maybe give her the opportunity to keep working. I don't know if you can do that and also file a new I-485 but that will be expensive with all the fees. Sorry that this happened to you.

[DKoc]

I'm no expert, but looking at the August 2018 visa bulletin here: https://www.uscis.gov/visabulletin-aug-18 it say 01DEC17 and if I-130 was filed in November 2017, then it looks like they made a mistake, as you and your lawyer think.

From what I read from: https://www.uscis.gov/family/family-...nent-residents and https://www.uscis.gov/greencard/visa...priority-dates you correctly filed I-130 NOV17 and waited for the visa bulletin to file I-485 when the date reached 01DEC17

What they should have told you at the interview, is that they can't approve the I-485 because there are no visa available yet (for April 2019 visa bulletin FAD is 15MAY17 except Mexico 01MAY17), so still has to go to 01DEC17 for the Final Action Dates for your wife to be able to get a visa, but definitely not deny the application.

I'm no lawyer and I don't have experience, maybe motion to reconsider is an option, you have to talk with your lawyer about that. This maybe give her the opportunity to keep working. I don't know if you can do that and also file a new I-485 but that will be expensive with all the fees. Sorry that this happened to you.

Thank you. We are thinking similarly. I do not believe that we have done a mistake but I am still debating between motion to reconsider vs. just to file a new one.
If we request motion to reconsider the part that I am not so sure is that when we file to reopen would her EAD card issued through the I-485 application still be valid? The attachment we have received states that if we can show the proof that I-485 is still pending then EAD will remain valid. Would filing motion to reconsider make her initial I-485 pending? Considering that motion to reconsider can be a very long process I am worried that when her EAD expires they might also deny renewing her EAD until the I-485 is approved, which would put her out of status at a later date. Is there a chance of this happening?

With the new filing, the issue is that she would be out of status during the period from the expiration date of her OPT until she receives a new EAD card. Based on my understanding of the law (which I would accept that my understanding of this portion is not great) since they are at fault she should not suffer the consequences and a legal argument can be made that she can continue to work while waiting for the new EAD card. Is this really a valid option or is it too risky?

[Enub4]

Sorry I can't help you with all those questions, you need someone with experience.

[celosia89]

Hi Everyone,

Thank you for reading my questions in advance. I am a permanent resident in the U.S. and I petitioned for my wife by filing I-130 while she was a graduate student and legally present in the U.S. . While I-130 was still pending we filed for I-485 based on our priority date and the fact that she was working in the U.S. with her OPT. Recently we had the interview and found that our I-130 was approved while I-485 was denied with the argument that at the time of our application I-130 was not yet approved. We also received a notification that her EAD card that was given for the I-485 application will be revoked unless we can provide proof that her I-485 is still pending. However, in the USCIS website it is not mentioned that you need the I-130 approved for being able to apply for I-485 change of status. I am also 100% certain we filled out and filed her adjustment of status after her priority date became eligible. Therefore we believe (and my attorney as well) that USCIS erroneously denied her I-485 application. My questions are:

- In this case would applying for a motion to reconsider make her I-485 still pending or would she lose that EAD card no matter what?

-Since her OPT is ending within a month we are worried that she will be out of status until a new EAD card is sent if we file for a new I-485. What would be the best strategy so that she can still remain and work in the U.S. without breaking any laws?

-What would happen if we file a new I-485 and she continues to work in the U.S. considering that they made an error while denying I-485?

-Lastly where in USCIS website does it say that you need to have I-130 approved for applying to I-485? (I just want to make sure that we have not done a mistake in this matter)

Thank you again!

Hi there, I have a same situation with you. At first, I applied F2B visa, they said there is no visa available to me, but my priority date is before the DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS chart so I wrote the letter for explanation and show the link, they accepted my case for i485 after returning back all my package
However, you need to wait I-130 approved and your PD < Dates for filing in months you applied i485 on visa bulletin. Do I-130 approved?
Before I-485 pending status, your wife need to be legal status. After that, she doesn't need to go back to school.

----In this case would applying for a motion to reconsider make her I-485 still pending or would she lose that EAD card no matter what?
applied I-485 again, write letter for explanation

----Since her OPT is ending within a month we are worried that she will be out of status until a new EAD card is sent if we file for a new I-485. What would be the best strategy so that she can still remain and work in the U.S. without breaking any laws?
She won't be out of status if they accepted I-485, meaning they charged your money and send to you Notice of Action that they received your case. Otherwise, she will be out of status if her OPT ends while I-485 denied

----What would happen if we file a new I-485 and she continues to work in the U.S. considering that they made an error while denying I-485?
She can work until her EAD expired. If it's expired, I-485 not accept, she needs to register classes and back to F1 visa

-----Lastly where in USCIS website does it say that you need to have I-130 approved for applying to I-485? (I just want to make sure that we have not done a mistake in this matter)

https://www.uscis.gov/greencard/adjustment-of-status

Because you're permanent resident, you need to wait I-130 approved. If US citizen, no need to wait I-130 approved, concurrent filling with I-485

[Enub4]

celosia89 is incredible that they make such mistakes.

DKoc Thinking out loud here, if you file I-485 again then you will have a pending I-485 so the EAD may be still valid? Hoping for the best!

[celosia89]

celosia89 is incredible that they make such mistakes.

DKoc Thinking out loud here, if you file I-485 again then you will have a pending I-485 so the EAD may be still valid? Hoping for the best!

I'm unlucky, my visa is available on website Feb 2019 and i got approved I130 on 5/2014 F2B visa, but still get rejected for I-485. Do again second time
Go to biometric first time, cannot get fingerprint because too many lines on fingerprint, they said if unclear, they will send letter do it again from USCIS, and second time if not working, I will need the police clearance letter. On biometric second time, officer said it hard to get my fingerprint, and so worried about that. After 2 days, my case update Ready to be schedule interview.
I don't know they accept biometric or not, but if it need police clearance letter, ugggg I will have to go police station to get it ^_^