i-485 of Green card spose

[ozaikin3331]

Hello.
We submitted form I-130.
Later in 6 month submitted I-485.

My wife came under ESTA visa. But due to traffic accident (health reason) we applied for I-94 extension.
They extended for 1 month more. Expiration date was September 2.
Receipt of I-485 is also on September 2.

After a biometrics appointment we got a following denial letter:

You filed Form I-485 based on being the beneficiary of an immigrant petition. Your last entry into the United States was as a nonimmigrant visitor under the visa waiver program. You are seeking adjustment of status to that of a preference-based immigrant, and you were not in lawful nonimmigrant status at the time you filed your Form I-485. You have provided no evidence of lawful admission or parole after the one indicated above and you have not established eligibility under the provisions of INA 245(i). Therefore, you are restricted from adjustment of status, and U.S. Department of Homeland Security U.S. Citizenship and Immigration Services National Benefits Center P.O. Box 648004 Lee's Summit, MO 64002 IOE0913600313 A231-483-600 NBLI485NBCFBI000019914366 1 of 2 www.uscis.gov USCIS must deny your Form I-485. See INA sections 245(a), (c), (i), and Title 8, Code of Federal Regulations (8 CFR), sections 245.1(a) and (b), and 245.10.

Is there any chances to reopen a case and explain the situation that my wife was not able to go outside because of prescribed treatments under USA insurance company.
Also since The expiration date is same as receipt notice maybe that's could be a reason to appeal the case.

[newacct]

By "green card spouse" do you mean your wife is immigrating as the spouse of a green card holder (i.e. F2A category) or as the derivative beneficiary of some other category? If so, she is ineligible for Adjustment of Status after entry on the Visa Waiver Program. Only people in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen) can do Adjustment of Status after entry on the Visa Waiver Program. So the denial is correct, and she should leave the US and do Consular Processing for an immigrant visa.

[ozaikin3331]

But what I can see from next sentence :"you were not in lawful nonimmigrant status at the time you filed your Form I-485" it looks like they are saying that the reason was wife was not legally presented in USA at a time we filed the application.

[ozaikin3331]

Also another question : my wife has documents from doctor she was not able to travel those days when we applied for i485 due to traffic accident . And even now she is receiving an medical treatment under usa insurance from USA medical provider so she cannot leave USA because of health danger of uncompleted treatment .

[newacct]

Like I said, she is not eligible for I-485 in this category because she entered on the Visa Waiver Program. It doesn't matter if she was in status or not when she filed.

Are you close to becoming a US citizen? If you will take the oath very soon, she will be eligible to file a new I-485 after you take the oath. But if it will be a long time until you naturalize, there is a big risk that she will be deported before then. Either being deported, or accruing 180 days of unlawful presence (which started accruing on the I-485 denial date) and then leaving the US, will trigger a ban.

[ozaikin3331]

Ok. But what about the medical condition that she cannot leave usa right now? Can we make some sort of legal extension due her staying in USA?
Yes I can apply for CITIZENSHIP around September this year.

[Kam99]

Ok. But what about the medical condition that she cannot leave usa right now? Can we make some sort of legal extension due her staying in USA?
Yes I can apply for green card around September this year.

So, you also don't have a green card yet? I strongly advise you to seek legal help with an immigration attorney to take a look at your case before you keep making costly mistakes

[ozaikin3331]

Sorry. I meant i can apply for citizenship around those days(actually December, more realistically, i think).
In fact I have GREEN CARD already 12 years.

But for staying without leaving outside for less than 1 year is starting from Apr 2018
Before i was traveling a lot with re-entry permit.

So what the best advice for this case? And how about making some medical exemption from leaving USA for her?

[Kam99]

Was your wife in the US for less than 90 days? if so that might be the reason why she got a denial letter, reading on the requirements for adjustment of status in your case, it seems that the 90 day rule applies, meaning The U.S. Department of State’s Foreign Affairs Manual provides guidelines on misrepresentation related to the use of a visa. Under these guidelines, there’s a presumption of visa fraud if a person violates his or her nonimmigrant status or engages in conduct inconsistent with that status within 90 days of entry. An attempt to adjust status prior to 90 days would trigger this rule.
Your spouse was denied not because her stay expired, but because her last entry to the US was through the Visa Waiver program, Visa Waiver entries are considered legal stay, however they cannot adjust their status based on your resident status, unless you're a US Citizen. Since you aren't still a US citizen you're not allowed to sponsor her for a visa. Your best (and maybe only) chance I repeat, is to contact an immigration attorney to look into your case, there's no way you can pull this off on your own.

[newacct]

Sorry. I meant i can apply for citizenship around those days(actually December, more realistically, i think).
In fact I have GREEN CARD already 12 years.

But for staying without leaving outside for less than 1 year is starting from Apr 2018
Before i was traveling a lot with re-entry permit.

So what the best advice for this case? And how about making some medical exemption from leaving USA for her?

It seems you are making some assumptions about when you can apply for naturalization after a break in continuous residence. You should read USCIS Policy Manual, Volume 12, Part D, Chapter 3 for the rules on continuous residence. Assuming you had a single absence of more than 1 year, you can apply for naturalization either 4 years + 1 day after your return (if you have strong evidence of ties to the US that would have overcome the presumption of continuous residence for an absence of between 6 months and 1 year) or 4 years + 6 months after your return (otherwise). So in the worst case, you can apply 4 years and 6 months after your return.

Even after you file for naturalization, the process can take a year or so these days.

I don't think medical issues will prevent her from being put into removal proceedings or prevent an order of removal from being made. The actual removal might be deferred if there are medical reasons preventing travel. Adjustment of Status can be filed with the immigration judge in removal proceedings, but in her case, she would only be eligible for Adjustment of Status after you take the oath. I am not sure if your naturalization will be soon enough for this to be viable. I am not familiar with the procedures of removal proceedings.

If she leaves now, she avoids a ban. If she stays, she risks being put into removal proceedings and getting a ban (even if she gets Voluntary Departure, and doesn't get the ban for removal, she would probably trigger the unlawful presence ban upon leaving at that point). But if she really can't travel, then I guess you guys have no choice but to stay and wait.

[ozaikin3331]

Thanks for the advice. What if her I-130 will be approved soon. Is it possible to reopen i-485 case after that?

[ozaikin3331]

Was your wife in the US for less than 90 days? if so that might be the reason why she got a denial letter, reading on the requirements for adjustment of status in your case, it seems that the 90 day rule applies, meaning The U.S. Department of State’s Foreign Affairs Manual provides guidelines on misrepresentation related to the use of a visa. Under these guidelines, there’s a presumption of visa fraud if a person violates his or her nonimmigrant status or engages in conduct inconsistent with that status within 90 days of entry. An attempt to adjust status prior to 90 days would trigger this rule.
Your spouse was denied not because her stay expired, but because her last entry to the US was through the Visa Waiver program, Visa Waiver entries are considered legal stay, however they cannot adjust their status based on your resident status, unless you're a US Citizen. Since you aren't still a US citizen you're not allowed to sponsor her for a visa. Your best (and maybe only) chance I repeat, is to contact an immigration attorney to look into your case, there's no way you can pull this off on your own.

No, my wife was more than 90 days in US when she applied to Adjustment. Those days was not possible to get other visa because all consulates was closed due to COVID-19.

Any suggestions for good Immigration Attorney?