Question regarding a complex F2A Category AOS from F1 Student Visa Case

[mrbrucele 0]

My mother petitioned me and I got form I-130 approved in December 2013. 

My Priority Date is 12/23/2013, which becomes current in September 2015. 

 

I had my I-485 filed by an Immigration Service in Sep 2015 for Adjustment of Status under F2A category, but somehow the document got lost in the mail and USCIS never cashed out the check. I turned 21 in May 2015, but with PCSA I am still eligible for F2A at the time when the Immigration Service sent out the I-485, which is Sep 2015.

 

Now I completely trust that immigration service and forget about it until May 2017, where I had to refile my I-485 for Adjustment of Status. I now received my EAD, Advance Parole and a Notice from USCIS telling me to take medical examination to prepare for the interview. Also noted that I have been a full time F1 student this whole time, from 2010 to May 2017, and I am currently on OPT at the time I recently file my I-485 form.

 

With that background, I have 2 questions:

 

1) For this upcoming interview, would it be possible USCIS will deny my case since I am no longer eligible for F2A category? How do I prove to USCIS that the Immigration Service that I paid for had sent out the I-485 and other documents in 2015 (when I am still under PCSA and fully eligible for F2A category) and it was lost in the mail?

 

2) Worst case scenario, they denied my GC during the interview and push me down to F2B category (unmarried son over 21), would I be out of status by then? My OPT card expires May 2018 and I don't think they will interview me before this period. 

 

I'm so worried and it would help me a lot if I could get help from someone who has experienced the same story.

Edited January 24, 2018 by mrbrucele

[geowrian 22,337]

CSPA protection requires that you "seek to acquire" permanent residence within 1 year of the PD becoming current (or I-130 being approved, if that occurs after the PD is current). Since you filed the I-485 after one year, I don't believe you are covered by CSPA and it would use your current age...putting you into F2B. As such, your PD is not current.

 

Regardless of who screwed up, USCIS did not receive the application so the 2015 filing attempt will not be considered.

 

https://www.uscis.gov/greencard/child-status-protection-act

Eligibility Criteria

• Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.
• The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
• The child must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.

 

I'm open to hearing from others if they have a reason why the above does not apply, but it seems pretty clear to me.

 

2) In general, if your current status is still valid (it sounds like it is), then a denied AOS should not impact it. However, if you have actually used the immigration benefits obtained via the pending I-485 (i.e. the EAD or AP), then that can be an issue because those are revoked upon AOS denial.

[mrbrucele 0]

3 minutes ago, geowrian said:

CSPA protection requires that you "seek to acquire" permanent residence within 1 year of the PD becoming current (or I-130 being approved, if that occurs after the PD is current). Since you filed the I-485 after one year, I don't believe you are covered by CSPA and it would use your current age...putting you into F2B. As such, your PD is not current.

 

Regardless of who screwed up, USCIS did not receive the application so the 2015 filing attempt will not be considered.

 

https://www.uscis.gov/greencard/child-status-protection-act

Eligibility Criteria

• Must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.
• The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
• The child must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later.

 

I'm open to hearing from others if they have a reason why the above does not apply, but it seems pretty clear to me.

 

2) In general, if your current status is still valid (it sounds like it is), then a denied AOS should not impact it. However, if you have actually used the immigration benefits obtained via the pending I-485 (i.e. the EAD or AP), then that can be an issue because those are revoked upon AOS denial.

Thank you so much for your response!

 

For 1), would you think it is possible for them to approve if I'm able to provide proof that the I-485 was actually filed and lost in the mail? Also, I talked to a few lawyers and some of them said that if USCIS agreed to interview my I-485 application based on F2A category, they have accepted that I'm in fact eligible for the F2A category. Is it true?  

For 2), what would my status be if they interview and deny me after my OPT period expires (which is May 2018)? Would it put me into an "out of status" or a "pending for I-485" for my F2B?  I'm currently using the EAD from pending I-485 to work (in replace of my OPT EAD). 

 

[geowrian 22,337]

19 minutes ago, mrbrucele said:

Thank you so much for your response!

 

For 1), would you think it is possible for them to approve if I'm able to provide proof that the I-485 was actually filed and lost in the mail? Also, I talked to a few lawyers and some of them said that if USCIS agreed to interview my I-485 application based on F2A category, they have accepted that I'm in fact eligible for the F2A category. Is it true?  

For 2), what would my status be if they interview and deny me after my OPT period expires (which is May 2018)? Would it put me into an "out of status" or a "pending for I-485" for my F2B?  I'm currently using the EAD from pending I-485 to work (in replace of my OPT EAD). 

 

1) I think that might be an argument for a lawyer to make, honestly. From the perspective of USCIS, it was never filed. USCIS strictly goes by laws and policies. The other argument is that the non-filing should have been caught and refiled within that year period.

The facts that 1) they issued an EAD & AP, and 2) setup an interview are definitely favorable. I would have expected an RFE or denial beforehand. At the same time, it's also possible they just didn't notice it yet. Nobody can say for sure, but the fact that it did get that far is a good sign.

 

2) If the I-485 is denied and you do not have a current status, you would become out of status. There is no status or authorized stay permitted for "waiting to file". If you already have an I-485 properly filed, that does grant authorized stay while it is pending, but there's nothing for people waiting to file an I-485. And once out of status, you are no longer eligible to re-file the I-485 (although some exceptions apply, such as immediate relatives of a USC).

Edited January 24, 2018 by geowrian