AOS denied due to priority date? (split)

[Hypnos 6,576]

It sounds as if USCIS improperly accepted your I-485 to begin with. 

 

Unless the PD of your I-130 was current in the month you filed, your I-485 should have been rejected by USCIS. 

 

USCIS do not automatically use the "dates for filing" from the visa bulletin. They post at http://www.uscis.gov/visabulletininfo every month as to which table they will accept for that month, either "dates for filing" or "final action dates". 

 

This is conjecture until you receive the formal denial notice on the mail, but my guess is that someone realised that your I-485 was improperly accepted and so you were denied for that reason. 

[Venice1012 35]

10 hours ago, Hypnos said:

It sounds as if USCIS improperly accepted your I-485 to begin with. 

 

Unless the PD of your I-130 was current in the month you filed, your I-485 should have been rejected by USCIS. 

 

USCIS do not automatically use the "dates for filing" from the visa bulletin. They post at http://www.uscis.gov/visabulletininfo every month as to which table they will accept for that month, either "dates for filing" or "final action dates". 

 

This is conjecture until you receive the formal denial notice on the mail, but my guess is that someone realised that your I-485 was improperly accepted and so you were denied for that reason. 

I wouldn't say improperly accepted. Once the I485 form is filled correctly they will accept it. Bearing in mine that your I485 start processing when they reaches to the month you filed in. Uscis is famous for having backlogs of up to 1 year which means that your I485 will remain untouched up to that time to begin processing and I assume that's the time they will issue a denial if the visa priority date isn't available....

[caliliving 606]

I think your lawyer screwed you...

If it was based on your marriage u would have gotten an RFE.

 

Now the problem is work is NOT forgiven when married to a LPR

Overstay is NOT forgiven when married to an LPR

 

So you have a few problems bc ur EAD is not valid...

 

Have u ever worked unauthorized before??

 

I think with the priority date it's very hard to aos with a LPR.

 

How long until spouse is a citizen?? 

 

Too much technicality AOS from a LPR...u gotta dot your i's and cross your t's...one little mistake can put u in jeopardy. I would have hired a very very experienced lawyer who has done AOS from LPR specifically or waited until she became a USC. 

[KierenHby 897]

On 1/7/2017 at 0:12 PM, caliliving said:

 

How long until spouse is a citizen??  

According to a post in another forum, spouse has n-400 biometrics next couple of weeks. So presumably still ways to go before oath.

alps34, please take a moment to . What country is your F2a changeability? 

[caliliving 606]

1 hour ago, KierenHby said:

According to a post in another forum, spouse has n-400 biometrics next couple of weeks. So presumably still ways to go before oath.

alps34, please take a moment to . What country is your F2a changeability? 

Are we talking months? Years? May be best to just wait if it's less then a year. 

[KierenHby 897]

months

[alps34 17]

Hi everyone,

You know my status. I have never worked illegally and at the time of submitting my I-485 application ofcourse I was in legal status and that my I-130 is still pending in the local office for 1,5 years.

I got the USCIS  I-485 denial notice from the mail and it says:

You filed form I-485 on October 3, 2016, based on being the beneficiary of an immigrant petition.

Visa availability is being determined by a priority date. The priority date in a family-based preference category is the date on which the visa petition is filed. The visa petition on which you are basing your adjustment of status was filed on June 22, 2015 in preference category F2A, and is currently pending adjudication. As a result, your priority date cannot be established.

The U.S. Department of State (DOS) is the agency that allocates immigrant visas. Therefore, USCIS accepts Form I-485, Application to Register Permanent Residence or Adjust Status, from family-sponsored and employment-based adjustment of status preference applicants according to the monthly Visa Bulletin that DOS publishes.

The monthly DOS Visa Bulletin summarizes the availability of immigrant visas according to:

1. The "Application Final Action Dates" and

2. The "Dates for Filing Applications" chart.

Unless otherwise indicated on www.uscis.gov/visabulletininfo for the month in which you are www.uscis.gov/visabulletininfo for the month in which you are filing, you must use the "Application Final Action Dates" for determining when you can file a Form I-485 with USCIS.

When USCIS determines there are more immigrant visas available for the fiscal year than there are known applicants, USCIS may, for a given month, indicate that you may use the Dates for Filing Applications chart to determine when to file an adjustment of status application with USCIS. Otherwise, you must use the Application Final Action Dates chart to determine when to file an adjustment of status application with USCIS.

 

You have provided no evidence to indicate that an immigrant visa is immediately available to you or any other basis; therefore, you do not qualify to adjust status, and USCIS must deny your form I-485. See INA 245(a)(3).

 

Since this form I-485 has been denied, I-765, I-131 is canceled and the decision is open to file a motion to reopen or reconsider in 30 days from the date of this notice.

 

Guys, yes my I-130 was pending but many attorneys telling that to adjust status with an approved I-130 is not a rule. You can go ahead and adjust status with a pending I-130. (they told me just to attach the copy of I-130 application to the file)

On the other hand, in October 2016, DOS was giving us a change to use Chart-B (Dates for filing applications) and at that time the date for F2A was 22-NOVEMBER-2015. As my priority date is 22JUNE2015 I was good to go and adjust status.

 

Is there anybody had these kind of or similar issues and any kind of help is highly appreciated.

I would like to file a motion to reopen.

 

Many thanks and best regards

 

 

[Boiler 43,381]

It is a factual matter of whether your number was current when you applied.

[Venice1012 35]

22 minutes ago, Boiler said:

It is a factual matter of whether your number was current when you applied.

I agree. Your lawyer was wrong. It is a rule. Only the spouse of a USC is allowed to file AOS while I130 pending.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-status

[alps34 17]

4 minutes ago, Venice1012 said:

I agree. Your lawyer was wrong. It is a rule. Only the spouse of a USC is allowed to file AOS while I130 pending.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-status

Thanks for the link but I couldn't find the exact sentence saying that you need an approved I-130 to adjust status.

Where is that? 

thank you

[Venice1012 35]

8 minutes ago, alps34 said:

Thanks for the link but I couldn't find the exact sentence saying that you need an approved I-130 to adjust status.

Where is that? 

thank you

https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates#Availability

[Hypnos 6,576]

45 minutes ago, Venice1012 said:

Only the spouse of a USC is allowed to file AOS while I130 pending

 

You are mistaken. The I-130 doesn't need to be approved, but the priority date under whatever table USCIS is using for acceptance of the I-485 in that particular month needs to be current.

[alps34 17]

1 minute ago, Hypnos said:

 

You are mistaken. The I-130 doesn't need to be approved, but the priority date under whatever table USCIS is using for acceptance of the I-485 in that particular month needs to be current.

Dear Hypnos,

Thank you so much! I am a spouse of a permanent resident (green card holder)

I have filed AOS in October 2016 and that month they were using Chart-B (filing dates) so that as being with an I-130 priority date of 22JUNE2015 I was good to adjust status.

I see USCIS denial as an error by the government.

 

Thanks a lot!

[alps34 17]

1 hour ago, Venice1012 said:

I agree. Your lawyer was wrong. It is a rule. Only the spouse of a USC is allowed to file AOS while I130 pending.

https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-status

I don't think my lawyer made a mistake. Here is the rule:

 

My situation is applied to Sec. 203. [8 U.S.C. 1153]

8 CFR § Sec. 245.2 Application.

 

(a) General --

(1) Jurisdiction . USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 CFR 1245.2(a)(1). (Paragraph (a) (1) revised 5/12/06; 71 FR 27585 ) (Amended 7/1/94; 59 FR 33903 ) (Paragraph (a)(1) revised effective 4/1/97; 62 FR 10312 )

(2) Proper filing of application --

(i) Under section 245 . (A) An immigrant visa must be immediately available in order for an alien to properly file an adjustment application under section 245 of the Act See § 245.1(g)(1) to determine whether an immigrant visa is immediately available. (Paragraph (a)(2)(i) revised 7/31/02; 67 FR 49561 )

(B) If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i) , section 203(a) or section 203(b)(1) , (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary's adjustment application will be considered properly filed whether submitted concurrently with or subsequent to the visa petition, provided that it meets the filing requirements contained in parts 103 and 245 . For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition.

 

(C) A visa petition and an adjustment application are concurrently filed only if:

( 1 ) The visa petitioner and adjustment applicant each file their respective form at the same time, bundled together within a single mailer or delivery packet, with the proper filing fees on the same day and at the same Service office, or;

( 2 ) the visa petitioner filed the visa petition, for which a visa number has become immediately available, on, before or after July 31, 2002, and the adjustment applicant files the adjustment application, together with the proper filing fee and a copy of the Form I-797, Notice of Action, establishing the receipt and acceptance by the Service of the underlying Form I-140 visa petition, at the same Service office at which the visa petitioner filed the visa petition

[Venice1012 35]

9 minutes ago, alps34 said:

I don't think my lawyer made a mistake. Here is the rule:

 

My situation is applied to Sec. 203. [8 U.S.C. 1153]

8 CFR § Sec. 245.2 Application.

 

 

(a) General --

 

(1) Jurisdiction . USCIS has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 CFR 1245.2(a)(1). (Paragraph (a) (1) revised 5/12/06; 71 FR 27585 ) (Amended 7/1/94; 59 FR 33903 ) (Paragraph (a)(1) revised effective 4/1/97; 62 FR 10312 )

 

(2) Proper filing of application --

 

(i) Under section 245 . (A) An immigrant visa must be immediately available in order for an alien to properly file an adjustment application under section 245 of the Act See § 245.1(g)(1) to determine whether an immigrant visa is immediately available. (Paragraph (a)(2)(i) revised 7/31/02; 67 FR 49561 )

 

(B) If, at the time of filing, approval of a visa petition filed for classification under section 201(b)(2)(A)(i) , section 203(a) or section 203(b)(1) , (2) or (3) of the Act would make a visa immediately available to the alien beneficiary, the alien beneficiary's adjustment application will be considered properly filed whether submitted concurrently with or subsequent to the visa petition, provided that it meets the filing requirements contained in parts 103 and 245 . For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition.

 

 

(C) A visa petition and an adjustment application are concurrently filed only if:

 

( 1 ) The visa petitioner and adjustment applicant each file their respective form at the same time, bundled together within a single mailer or delivery packet, with the proper filing fees on the same day and at the same Service office, or;

 

( 2 ) the visa petitioner filed the visa petition, for which a visa number has become immediately available, on, before or after July 31, 2002, and the adjustment applicant files the adjustment application, together with the proper filing fee and a copy of the Form I-797, Notice of Action, establishing the receipt and acceptance by the Service of the underlying Form I-140 visa petition, at the same Service office at which the visa petitioner filed the visa petition

 

 

 

No that doesn't apply to you. That apply to the spouse of a USC. But if you feel it does feel free to make an appeal...