I-612 approved, now what

[DCW&LRT 1]

Hi guys,

I am a USC and married my spouse in May 2015. He was in the country on a J-1 visa. Below is my timeline

May 7, 2015: married

6/17/2015: Filed I-130, I-485, I-131, I-765

8/20/2015: I-131, I-765 approved

7/14/2015: BIOMET appt

10/30/2015: Interview- went well, officer was ready to approve us on the spot but stated she needed the I-612 approval. Turns out our lawyer had not filed the I-612 because she states it wasn't needed. Turns out thats not true. Application shelved while waiting for I-612 approval.

01/04/2016: I-612 sent

02/24/2016: I-612 approved

That has been the last we have heard. Our lawyer isn't helping very much at this point and just states they have opened inquiries. Does anyone have any suggestions where to go from here? 7 months seems like a long time to hear of no progress.

[Hypnos 6,576]

I would suggest filing an inquiry with one of your congressional representatives asking them to liaise with USCIS on your behalf.

[DCW&LRT 1]

I would suggest filing an inquiry with one of your congressional representatives asking them to liaise with USCIS on your behalf.

Thank you, I have just sent. What a crazy process this has been. If only we had the I-612 at the interview. I am concerned our I612 approval and I-485/I-130 application are sitting in two different offices being overlooked. They need to find each other!

[EM_Vandaveer 2,369]

From the instructions of Form I-485:

"Who is not eligible to adjust status?

You are or were a J-1 or J-2 exchange visitor and are subject to the 2-year foreign residence requirement and you have not complied with or been granted a waiver of the requirement"

Your wife was not eligible to file at the time the I-485 was filed. It should have been denied at interview because for an AOS application to be approved, the applicant has to be eligible for adjustment of status at both the time of filing and the time of adjudication. Your wife was eligible neither of those times.

Getting a waiver afterwards does not remedy this.

As she has a waiver approved NOW, she's eligible for filing I-485.

You'll most likely end up having to refile your I-485. I assume the I-130 was approved, so that would not have be re-filed, but send a copy of its approval notice (or if you never received that then a copy of the NOA1 for the I-130) with your new I-485.

Edited September 6, 2016 by EM_Vandaveer

[DCW&LRT 1]

From the instructions of Form I-485:

"Who may NOT file Form I-485?

You are or were a J-1 or J-2 exchange visitor and are subject to the 2-year foreign residence requirement and you have not complied with or been granted a waiver of the requirement"

Your wife was not eligible to file at the time the I-485 was filed. Getting a waiver afterwards does not remedy this.

You'll most likely end up having to refile your I-485. I assume the I-130 was approved, so that would not have be re-filed, but send a copy of its approval notice (or if you never received that then a copy of the NOA1 for the I-130) with your new I-485.

You may be on to something there. However, my husband and I are working with an immigration lawyer, should she have not picked up on this? Also the immigration officer who interviewed us stated once our I-612 approval was received the application would go through. The I-130 has not been approved.

Do we need to wait for a denial before refiling? Should we wait for the I-130 approval before refiling?

Edited September 6, 2016 by DCW&LRT

[DCW&LRT 1]

Also I apologize to go off topic a bit. We have applied for a renewal on his EAD/AP. Our receipt number starts with MSC, Which I understands is the national benefits center in MO. However when I look at timelines I don't see this office, mostly just Chicago?

I am sorry for all the questions, I have recently just really gotten involved in the application process as I have lost confidence in our lawyer, I figure its time to get informed and knowledgable.

[EM_Vandaveer 2,369]

You may be on to something there. However, my husband and I are working with an immigration lawyer, should she have not picked up on this? Also the immigration officer who interviewed us stated once our I-612 approval was received the application would go through. The I-130 has not been approved.

Do we need to wait for a denial before refiling? Should we wait for the I-130 approval before refiling?

No offense to your lawyer but I doubt she's really good, she did not realize that your wife was not eligible for filing I-485 and needed a waiver first.

The IO might not have realized how it works, but like I said, one can only get an I-485 approved if one was eligible at filing and eligible at adjudication and your wife was not eligible at filing.

I would not wait for anything, the application is in a black hole and it isn't approvable anyway.

If I were you, I'd refile the I-485 with a copy of the NOA1 for the I-130, a copy of the approval notice of the I-612 and the usual other forms and supporting documents needed with I-485.

You'll end up having to do it, even if you manage to chase down your old application. It's not approvable, because your wife was not eligible for it at the time of filing.

You can re-file for new AP/EAD with a new I-485 application.

Edited September 6, 2016 by EM_Vandaveer

[DCW&LRT 1]

No offense to your lawyer but I doubt she's really good, she did not realize that your wife was not eligible for filing I-485 and needed a waiver first.

The IO might not have realized how it works, but like I said, one can only get an I-485 approved if one was eligible at filing and eligible at adjudication and your wife was not eligible at filing.

If I were you, I'd refile the I-485 with a copy of the NOA1 for the I-130, a copy of the approval notice of the I-612 and the usual other forms and supporting documents needed with I-485.

You'll end up having to do it, even if you manage to chase down your old application. It's not approvable, because your wife was not eligible for it at the time of filing.

You can re-file for new AP/EAD with a new I-485 application.

Haha, I am getting a kick out of "wife", this application is for my husband.

Thank you, and I agree about the lawyer. I have realized I need to get involved and nothing is getting anywhere. She came highly recommended, go figure. I will find the section on the I-485 that states this and forward it to her. Very frustrating. Thank you for your insight.

Edit: You think we will need to refile EAD/AP as well? We filed his renewal in June

Edited September 6, 2016 by DCW&LRT

[EM_Vandaveer 2,369]

Haha, I am getting a kick out of "wife", this application is for my husband.

Thank you, and I agree about the lawyer. I have realized I need to get involved and nothing is getting anywhere. She came highly recommended, go figure. I will find the section on the I-485 that states this and forward it to her. Very frustrating. Thank you for your insight.

Edit: You think we will need to refile EAD/AP as well? We filed his renewal in June

Sorry, substitute husband for wife LOL.

I'd refile for AP/EAD, but only together with the new I-485.

The reason is that the old EAD& AP and any of their renewals are based on the old I-485 so if USCIS finally gets their act together and denies the old I-485 like they should, that will render the old EAD&AP and their renewals invalid.

EAD&AP are free when filed together with an I-485 so that won't cost you extra.

The section I quoted is on the Instructions of the I-485, not the form itself.

Edited September 7, 2016 by EM_Vandaveer

[bigrage 0]

Thank you

[EM_Vandaveer 2,369]

Any updates?

[DCW&LRT 1]

I have contacted our Congressman, sent the release and information, waiting to hear back

I have also contacted a new lawyer for a second opinion on our case, waiting to hear back

Inquires were sent on I-130/I-485 for outside normal processing times, waiting to hear back

My husband doesn't believe we will need to refile, so I suppose we wait till they deny and go from there. He is eternally optimistic, pura vida spirit I suppose.

On a side note, do you by chance know how to send a service request for approaching processing times for the 1-131/I-765? All I see is an option for "outside normal processing times"

Thanks in advance

[Harpa Timsah 13,258]

I agree your I-485 will be denied. You have to be eligible for PR status when you file and you were not.

[DCW&LRT 1]

Alright, update. Turns we had the no objection letter from Costa Rica, which was sent to the DOS. Our lawyer stated that the DOS approval would automatically be sent to USCIS. Im guessing this may be where she got confused? She didn't realize following the DOS favorable recommendation you still need to file the I612?

Either way, still waiting to get with a lawyer soon. Have infopass appt on Thursday, will hopefully be able to find a lawyer to consult with the same day.

Will this automatically cause his I765/I131 renewal to be denied? We are at day 75 and was going to send in a service request tomorrow for it.

[EM_Vandaveer 2,369]

http://www.nolo.com/legal-encyclopedia/how-j-1-visa-holder-can-apply-no-objection-waiver-two-year-home-residency-requirement.htm

DOS is supposed to send the waiver case to USCIS, they make the final determination on it.

The question is if you have received the I-612 approval from USCIS BEFORE you filed for AOS?

If not, then nothing changed, you'll have to refile your I-485, I-764 and I-131 eventually.