Dependent I-485 Denied !

[shazi00]

Hello

I need some help and information regarding my I-485 Denial.

I am presently 23 years of age and moved to US with my father at the age of 16 in 2004. My father was on a L1 visa and I was on a L2 Dependent Visa. His Labor Certification was approved and soon after I-140 was approved in November 2006 and we filed I-485 in October 2007. My age when the I-485 application was filed was almost 19 years.

My father just recently received his Green Card last month along with my mothers and my younger sister. This week I received the I-485 Denial letter for myself stating that I crossed the age of 21 in 2009. The letter does not state any other reason and describes the Child Status Protection Act. At the end, the letter also stated "the decision leaves you without lawful immigration status and therefore present in US in violation of law". A month before the denial letter I received my renewed Employment Authorization Document which is valid til the end of 2013.

I completed 2 years of high school here, college and working full time as an Engineer.

I don't see any reason of how this could have happened after my parent's I-485 being approved. I checked the USCIS website and the description for Child Status Protection Act states a child under the age of 21 when I-485 Application has been filed shall be granted approval to I-485 even if he/she crosses the age of 21 during this process.

Please advise.

Thank You

[mickey_mouse]

Hello

I need some help and information regarding my I-485 Denial.

I am presently 23 years of age and moved to US with my father at the age of 16 in 2004. My father was on a L1 visa and I was on a L2 Dependent Visa. His Labor Certification was approved and soon after I-140 was approved in November 2006 and we filed I-485 in October 2007. My age when the I-485 application was filed was almost 19 years.

My father just recently received his Green Card last month along with my mothers and my younger sister. This week I received the I-485 Denial letter for myself stating that I crossed the age of 21 in 2009. The letter does not state any other reason and describes the Child Status Protection Act. At the end, the letter also stated "the decision leaves you without lawful immigration status and therefore present in US in violation of law". A month before the denial letter I received my renewed Employment Authorization Document which is valid til the end of 2013.

I completed 2 years of high school here, college and working full time as an Engineer.

I don't see any reason of how this could have happened after my parent's I-485 being approved. I checked the USCIS website and the description for Child Status Protection Act states a child under the age of 21 when I-485 Application has been filed shall be granted approval to I-485 even if he/she crosses the age of 21 during this process.

Please advise.

Thank You

/usa-immigrant-visa-process/cspa-calculator/

Get an immigration lawyer.

[zoom123]

At the time of AOS application submission if your age is under 21 then you are eligible to adjust here. (I am not sure how USCIS calculated your age in your case).
Immediately contact an attorney, don't delay. You have to file an motion to reopen the case. (You already working so don't do your self, take a good attorney).
Once your AOS denied then you can't use your EAD. Now you are out of status. ( Within 30 days of your denial letter start motion to reopen).

if you want I can give you an attorney no in NY for free consultation.

[shazi00]

Hello Zoom123

Thank You for your Reply.

I tried the CSPA calculator and that does say that I am still eligible due to the priority dates and I-140 filing and approval dates.

I do have a lawyer firm and they deal with Immigration Issues only so I am hoping this irons out very soon.

Still very concerned about my EAD. As this is the only document that my Driver's License is based on.

One thing i forgot to mention was my I-485 was filed twice due to some lost of papers and I was assigned two A#. The lawyer apparently never withdrew my first application and this is what could have been causing the issues.

The I-485 denial notice was for my old A# for which I have never received any EAD. I received the EAD for my new A# which i have been receiving for the past 6 years so maybe I can still use the new EAD to extend my Driver's License as I have not received a denial notice for the new A#. Would this be considered illegal or fraud ?

I have emailed my lawyer about this but wont be receiving a response until Monday. Maybe someone here can guide me for the time being.

Thank You for all the help.

[zoom123]

You see now we got the clear picture. You got the denial on the earlier A number. You should inform the USCIS about the conflict of A numbers.
Now one more question. You said you filed two applications.
Means you got two receipts? If you got two receipts with two different A numbers. What the second receipt number says on USCIS website?
Better you take an info pass and visit to local USCIS office, and talk to them what they say. Show them your two A nos, and two receipts. You may get immediate decision.
Good Luck.

[shazi00]

Hello zoom123

I highly appreciate your responses.

Once my second application was filed my lawyer never withdrew my first application so I never received any response after the biometrics on my first A# thinking it was withdrawn. Since then everything was pursued on my new A# and I received a new biometrics application and then all EADs on the new A# number. As they lost the papers for everybody in my family. They had to refile and withdraw the previous application. Which they did for everyone in my family but unfortunately not mines

The online system on the new application says we received your information and reviewing your case. So I haven't received a denial for the new A# but my lawyer said he spoke to USCIS and they responded that my new A# has also been rejected. I have yet to receive this letter.

But on the other hand my younger brothers old A# was withdrawn and he received the denial letter on the new A# and his i485 was filed when he was 16 years old. The lawyer has filed a motion for him since his denial letter was on the new A#

The rejection makes no sense at all.

Thanks for your response and the concern for my situation.

[zenith]

Hello zoom123 and shazi00,

USCIS must have overlook your age as below 21 when you submit your I-485. After your turn 21 did your apply for F1 while your in school? Maybe its a loophole that they consider you to be out of status aside from your pending I-485 application.
I am not a Lawyer and right now i also have a son which turns 21 last January and I didn't file for F1 for him. zoom123 could this be a reason for denial on his I-484 application? (my lawyer says "my son is not required to maintain a non-immigrant status if there is an I-485 pending. The purpose of maintaining one is to have a safe measure --- just in case the I-485 would be denied"). Do you think I should apply my son for a F1 visa?

Any response is highly appreciated and I hope you could get this thing sort out shazi00.

[zoom123]

See there is a lot of confusion when comes to the age. If your son cross the age of 21 then its hard to get AOS.

But you have to calculate the age, to be safe side you can apply for F1 (to avoid out of status) if his school gives I-20.

Please calculate the age in below age calculator. ( In this matter you need an expert attorney who can dig some loop hole to reach USCIS. They need to argue with USCIS that the age is under 21 at the time of application and as per USCIS law the he was still dependent. I saw many cases got approved. But you need a solid argument (written to USCIS) defending the argument provide a proof/previous approvals etc)

/usa-immigrant-visa-process/cspa-calculator/

- If I gets more info I will write here. ( please tell us when you submit his AOS, and what category)
_ Your attorney is right, if he have I-485 is pending no need to apply for FI or H1.

[zenith]

Hi zoom123,

My family and I came to US 2005, then we were able to file for I-485 Aug. 2007 my son was 16 yrs old that time, until he reach 21 of this year he was not able to renew his H4 under my H1(EB3 category), so now his status is just I485 pending (as I understand?). This is the part when I worry b'cuz my son could be in the same boat as shazi00 if he don't apply for F1 visa while waiting for our I-485 application.
As for the CSPA calculator, I fill-up the requirements and the result says "Even if CSPA age is less than 21 years, my son is ineligible for immigrant visa as the child must "seek to acquire" permanent residence of a visa becoming available. You have waited too long." What does this mean? now i become very worried.

Zenith

[zoom123]

Here is the info I look into it for your son. Your case can be prove with strong argument to USCIS.

The Child Status Protection Act (CSPA) amends the Immigration and Nationality Act (INA) by permitting certain aliens to retain classification as a "child" even if they have reached the age of 21. In most situations when a "child" turns 21, they lose their eligibility to immigrate to the U.S. as a child.

A visa becomes available to the parent when the priority date of the I-140 is "current" on the Department of State's monthly Visa Bulletin. (The DOS' monthly Visa Bulletin can be found at: http://www.immihelp.com/greencard/visa-bulletin.jsp)

once the date that the visa became available to the parent has been determined, the child's age on that same date must also be calculated. Once the age of the child has been determined, the number of days the I-140 pended for (235) is subtracted from that child's age on the day the visa became available to the parent. For example, if the child was 21 years and 100 days old on July 1, 2009, when the above visa became available to the parent, 235 days is subtracted from the child's age on July 1, 2009. The calculation appears as follows: (235 days) are subtracted from (21 yrs and 100 days) which equals the new age of (20 yrs 7 months and 16 days). Thus, the child's CSPA age, is less than 21 years old. Unfortunately, this age is not locked in yet as there is a final step that must occur.

Finally, for this <21 age to lock in, it must be established that the child "sought to acquire the status of an alien lawfully admitted for permanent residence" within 1 year of a visa becoming available to the parent. If this can be established, then the child is eligible for immigration benefits. The best way to satisfy this requirement is for the parent to file an I-824 Application on an Approved Application for the derivative child abroad within 1 year of the visa becoming available to the parent. It is advisable for the parent to file this I-824 Application for the child concurrently with his or her adjustment of status application.

The CSPA is an extremely complex area of the law and if certain steps are not taken it could have severe effects on one's ability to immigrate to the US. As such, it is extremely important for those trying to determine if the CSPA applies to their case to contact an experienced immigration law practitioner.

I suggest you must discuss with an attorney.

[zenith]

Thank you very much for quick response and taking time for my inquiry. I apologize for my ignorance but I still have a few questions:
1. what would the I-824 do and it's benefits if I apply for this now, and is the application renewable?
2. should I tell my lawyer to apply this for my son now instead or together with his F1?
when you suggest to discuss with an attorney, what are is there consequence if we wait for a while before filing considering the current priority date for EB3 as Aug'2006. it would probably take more the a year to reach our priority date of Aug'07.

Thanks,
Joel

[zoom123]

Please read my post again. I understand that your application is not yet approved? (Am I right?)

The form is for approved applications:
For this <21 age to lock in, it must be established that the child "sought to acquire the status of an alien lawfully admitted for permanent residence" within 1 year of a visa becoming available to the parent. If this can be established, then the child is eligible for immigration benefits. The best way to satisfy this requirement is for the parent to file an I-824 Application on an Approved Application for the derivative child abroad within 1 year of the visa becoming available to the parent. It is advisable for the parent to file this I-824 Application for the child concurrently with his or her adjustment of status application.

- Before filling the F-1 please consult your lawyer (attorney) if you have one. What his advice.
- If your priority date is Aug,2007 then calculate your son age with this date and check what will be his age.
- The last option is safe side change to F1. (Let us know what your attorney advise)
Good luck.