I485 F2b Denied because of priority date

[patelsp 0]

Hello Friends,

Need urgent help. I came to US on F-1 student in Jan-2015 and graduated in Dec-2016. i had my petition approved from my dad(citizen). Priority date for approved i130 is Aug 3rd, 2009. I applied for i485 AOS in April, 2016 thinking that my priority date has become current in visa bulletin. I had interview on May-15th  and everything went well and asked to resubmit expired i693 medical which I did. Case updated into further review. They denied yesterday saying that when I applied in April 22nd, 2016, visa bulletin had date of eligible visa for "Before 15th June 2009" and my priority date is Aug 3rd, 2009. Because of this they rejected and gave me 30 days to apply for motion or reconsider. By the way, In May 2016, visa bulletin has date of "1st Sept 2009". So just because I applied 8 days ahead on April 22nd, 2016, they rejected saying visa number was not available at the time of application of 1485 AOS. They also said as I graduated in Dec-2016 based upon F-1 student visa, it expired and I am not allowed to stay in United States.

Please help with possible action to rescue myself.

[Boiler 45,670]

If you filed when you were not eligible to then you need to file again.

 

What have you been doing since you graduated.

 

Were you admitted D/S?

[patelsp 0]

11 minutes ago, Boiler said:

If you filed when you were not eligible to then you need to file again.

 

What have you been doing since you graduated.

 

Were you admitted D/S?

Okey. I got job In April 2017. Working based on this denied AOS based EAD. I applied for this EAD in November 2016. at that time case was ready to be scheduled for interview.

What are you referring to by asking "D/S"? 

Edited June 23, 2017 by patelsp

[Hypnos 6,576]

I don't think USCIS have done this correctly.

 

According to April 2016's USCIS Visa Bulletin page, for that month USCIS used the "Dates For Filing" chart instead of the "Application Final Action Dates". This means that for an F2B beneficiary from India you would have to have a priority date on or before 15th December, 2010 in order to file your I-485 during the month of April 2016. At the time you filed your priority date wasn't current, but you were permitted to file the application by USCIS. They should then have held your application until your priority date was either current or about to be current before scheduling your interview. They should not have denied your I-485.

 

I imagine a Motion to Reconsider would be appropriate here, because USCIS mis-applied their own policies and procedures in this case.

 

I would strongly suggest consulting with an experienced immigration attorney to go over all of this and double check that what I think is the case is actually the case. Given that you're up against the clock in the deadline to file the MTR then you should be talking to a good attorney immediately.

Edited June 23, 2017 by Hypnos

[patelsp 0]

5 minutes ago, Hypnos said:

I don't think USCIS have done this correctly.

 

According to April 2016's USCIS Visa Bulletin page, for that month USCIS used the "Dates For Filing" chart instead of the "Application Final Action Dates". This means that for an F2B beneficiary from India, you would have to have a priority date on or before 15th December, 2010 in order to file your I-485 during the month of April 2016. At the time you filed your priority date wasn't current, but you were permitted to file the application by USCIS. They should then have held your application until your priority date was either current or about to be current before scheduling your interview. They should not have denied your I-485.

 

I imagine a Motion to Reconsider would be appropriate here, because USCIS mis-applied their own policies and procedures in this case.

 

I would strongly suggest consulting with an experienced immigration attorney to go over all of this and double check that what I think is the case is actually the case. Given that you're up against the clock in the deadline to file the MTR then you should be talking to a good attorney immediately.

I have planned to get lawyer. I need one more opinion here from you. Let me copy the exact paragraph from Notice(not containing any personal info) that says why they denied. Just to make sure from your end about your opinion. Find attached image file please.

 

[Hypnos 6,576]

I mean, they're right--but that's their mistake by misapplying their rules. Yes, your priority date wasn't current in the month you filed, but as you see in the chart I linked above, for that month they used the "Dates For Filing" chart, which allowed you to file your I-485. They should have then held your application until your priority date was closer to becoming current and then scheduled the interview, although in this case your priority date became current in the very next month so it likely wouldn't have made much difference with the scheduling.

 

I still think this is a USCIS error, and so a Motion to Reconsider is the best way to handle it. Absolutely talk to a good immigration attorney ASAP.

Edited June 23, 2017 by Hypnos

[patelsp 0]

6 minutes ago, Hypnos said:

I mean, they're right--but that's their mistake by misapplying their rules. Yes, your priority date wasn't current in the month you filed, but as you see in the chart I linked above, for that month they used the "Dates For Filing" chart, which allowed you to file your I-485. They should have then held your application until your priority date was closer to becoming current and then scheduled the interview, although in this case your priority date became current in the very next month so it likely wouldn't have made much difference with the scheduling.

 

I still think this is a USCIS error, and so a Motion to Reconsider is the best way to handle it. Absolutely talk to a good immigration attorney ASAP.

Got it..Your this opinion values "million dollar"..Thank you very much. Actually I have good Lawyer meet on Monday. Lets see. ASSUMING you are here active and expecting little more help, would you mind if I update here to ask you as how it goes in next couple of BUSINESS DAYS? Your opinion will still help. 

[Hypnos 6,576]

Please do post back. Others who might find themselves in similar situations would be very grateful at the very least.

[patelsp 0]

3 minutes ago, Hypnos said:

Please do post back. Others who might find themselves in similar situations would be very grateful at the very least.

Awesome..God bless you man. Will catch you at earliest.

[patelsp 0]

Just now, patelsp said:

Awesome..God bless you man. Will catch you at earliest.

Also one more thing .What is going to happen to my EAD as it based on this denied application? They also said that My student visa is expired as I completed my graduation in Dec 2016. And at that time, I applied for GC EAD instead of OPT EAD.

[Hypnos 6,576]

When your I-485 was denied then your EAD (and AP, if you applied for that too) was automatically invalidated.

[patelsp 0]

Just now, Hypnos said:

When your I-485 was denied then your EAD (and AP, if you applied for that too) was automatically invalidated.

Okey. So lets see how I am proceeding with the help of lawyer from Monday. Thanks.

[patelsp 0]

On 6/23/2017 at 6:23 PM, patelsp said:

Okey. So lets see how I am proceeding with the help of lawyer from Monday. Thanks.

Hello Hypnos,

We just consulted lawyer but we are also reviewing visa bulletin and USCIS resources. If you check below screenshot from Visa bulletin April - 2016 (CHECK HIGHLIGHTED), it says that chart you were referring can be used only only in case of FAMILY BASED F2A category. Can you tell me what you know about this? Thanks.

[Hypnos 6,576]

I already linked USCIS' April 2016 interpretation of the Visa Bulletin above (https://www.uscis.gov/visabulletin-apr-16).

 

Basically, each month USCIS takes the DoS Visa Bulletin and decides for the coming month whether they will accept AoS applications under the "Application Final Action" or "Dates For Filing" section. For April 2016 you can see they used the "Dates For Filing".

 

 

[patelsp 0]

11 minutes ago, Hypnos said:

I already linked USCIS' April 2016 interpretation of the Visa Bulletin above (https://www.uscis.gov/visabulletin-apr-16).

 

Basically, each month USCIS takes the DoS Visa Bulletin and decides for the coming month whether they will accept AoS applications under the "Application Final Action" or "Dates For Filing" section. For April 2016 you can see they used the "Dates For Filing".

 

 

Thanks for quick response.
I am wondering if these filing dates chart that you are referring to is applied for ALL CATEGORIES of Family based or applied to SPECIFIC Family based category?
Because the previous highlighted with yellow from NVC page tells that this chart can be used ONLY against Family Based F2A category.

Can you please review one more time for me the one that I highlighted?

Edited June 26, 2017 by patelsp
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