Are I-130 and I-485 filings allowed in this case?

[b1uebottle 0]

Hello,

 

I am (US citizen) about to marry a non-US woman whose parent filed a I-485 that was previously denied for potential misrepresentation and fraud (work-related reasons). While this case was submitted for an appeal to motion to reopen/reconsider, the individual (whom I am marrying) has her work permit expired as well. My question is would it pose any problem if we were to submit a petition (I-130) and I-485 after our upcoming marriage while her parent's case (appeal to motion) is still being processed?

 

Thank you,

[Boiler 45,657]

Lawyer territory

[SusieQQQ 11,586]

I’m not clear if the parent or your wife to be is accused of misrep? 
What is her current status in the US? If she is out of status she cannot adjust as spouse of LPR.

[b1uebottle 0]

3 minutes ago, SusieQQQ said:

I’m not clear if the parent or your wife to be is accused of misrep? 
What is her current status in the US? If she is out of status she cannot adjust as spouse of LPR.

Hi SusieQQQ,

 

Thank you for the question. The entire family was applied under her mother as a beneficiary to a previously submitted (and then denied) I-485. In other words, it was her mother who was accused of misrep. 

They received this letter of denial after she (my soon to-be spouse) renewed her work permit, so I am not exactly sure what her exact status is (and the family filed an appeal to motion). 

I hope this clarifies the situation a little more. Let me know if you have further questions and I appreciate everyone's response and help I could get!

[b1uebottle 0]

22 minutes ago, Boiler said:

Lawyer territory

I might have to, thank you. I want to get every help I can get before I go seek one!

[SusieQQQ 11,586]

15 minutes ago, b1uebottle said:

Hi SusieQQQ,

 

Thank you for the question. The entire family was applied under her mother as a beneficiary to a previously submitted (and then denied) I-485. In other words, it was her mother who was accused of misrep. 

They received this letter of denial after she (my soon to-be spouse) renewed her work permit, so I am not exactly sure what her exact status is (and the family filed an appeal to motion). 

I hope this clarifies the situation a little more. Let me know if you have further questions and I appreciate everyone's response and help I could get!

You need to be sure of her status before you can know how to proceed. If she is now or ever has been out of status, she will be ineligible to adjust status through you. Furthermore, if she has been out of status longer than 180 days and has to leave the US to get a spouse visa, she will trigger a ban of 3 or 10 years on exit depending how long she has been out of status for - you can file a waiver for this but it adds uncertainty, complexity, cost and time to the process.

 

As an aside how old is she? Asking as being old enough to work on a repeat work permit yet young enough to be a derivative on a parent petition seems to put her in a very narrow age frame at the time that all happened. If the work permit was based on the i485 then the denial of the i485 would have invalidated that.

 

 

 

 

Edited December 28, 2020 by SusieQQQ

[b1uebottle 0]

2 minutes ago, SusieQQQ said:

You need to be sure of her status before you can know how to proceed. If she is now or ever has been out of status, she will be ineligible to adjust status through you. Furthermore, if she has been out of status longer than 180 days and has to leave the US to get a spouse visa, she will trigger a ban of 3 or 10 years on exit depending how long she has been out for - you can file a waiver for this but it adds uncertainty, complexity, cost and time to the process.

 

As an aside how old is she? Asking as being old enough to work on a repeat work permit yet young enough to be a derivative on a parent petition seems to put her in a very narrow age frame at the time that all happened.

Hi SusieQQQ,

 

Thank you again for your response. Per her attorney who submitted an appeal, her current status is pending and they are waiting for USCIS to respond. Technically speaking, she renewed her work permit that will expire in the upcoming summer of 2021 even though her mom received the letter of denial in August of this year. Assuming that she is still approved to work, her work permit won't expire until 6 months after today.

 

She is 31 years old. Her mom submitted I-485 back in 2006 and they received their first denial this year in August I hope this helps and I really appreciate your response!

[SusieQQQ 11,586]

34 minutes ago, b1uebottle said:

Hi SusieQQQ,

 

Thank you again for your response. Per her attorney who submitted an appeal, her current status is pending and they are waiting for USCIS to respond. Technically speaking, she renewed her work permit that will expire in the upcoming summer of 2021 even though her mom received the letter of denial in August of this year. Assuming that she is still approved to work, her work permit won't expire until 6 months after today.

 

She is 31 years old. Her mom submitted I-485 back in 2006 and they received their first denial this year in August I hope this helps and I really appreciate your response!

Ok, “pending” is not really a status. Is she working ? I agree you need legal advice but my understanding is that despite the printed expiry date on the EAD, if the underlying petition on which it was based was denied then the work permit is invalidated, so any work she is doing is in violation of whatever status she is /was on.  
 

I also cannot figure out how an i485 could have taken 14 years to adjudicate as it is only supposed to be filed when a visa number is available, what was the original basis for the petition- family or employment? You are sure the i485 and not just the i130 was filed back then? Is her lawyer sure she did not age out on that petition? 

[SusieQQQ 11,586]

Are you eligible to file for citizenship anytime soon? A lot of these problems go away when the sponsoring spouse is a citizen rather than an LPR.

[b1uebottle 0]

2 minutes ago, SusieQQQ said:

Ok, “pending” is not really a status. Is she working ? I agree you need legal advice but my understanding is that despite the printed expiry date on the EAD, if the underlying petition on which it was based was denied then the work permit is invalidated, so any work she is doing is in violation of whatever status she is /was on.  
 

I also cannot figure out how an i485 could have taken 14 years to adjudicate as it is only supposed to be filed when a visa number is available, what was the original basis for the petition- family or employment? You are sure the i485 and not just the i130 was filed back then? Is her lawyer sure she did not age out on that petition? 

Unfortunately, I do agree with your statement on her work permit. The same attorney who filed the appeal this year told her to continue working until they receive further notice from USCIS. I am not sure if there is any legal implication behind her attorney's misguided information since she was the most trusted person at that time. 

 

I will need to get back with you regarding the last few questions you asked. Thank you for your help so far and I will try to get back with you with another response soon!

5 minutes ago, SusieQQQ said:

Are you eligible to file for citizenship anytime soon? A lot of these problems go away when the sponsoring spouse is a citizen rather than an LPR.

I am actually a naturalized citizen. I got mine before 2010. 

[SusieQQQ 11,586]

11 minutes ago, b1uebottle said:

 

I am actually a naturalized citizen. I got mine before 2010. 

OH that changes everything. You posted in the family of LPR forum so I assumed you were still an LPR. If you are a citizen, she will get forgiven any overstay, illegal work etc and will be able to adjust status despite all of that, so the whole thing becomes a lot easier. 
 

*facepalm* I just re-read your first post and you state you are a citizen...I somehow missed that, sorry.  The only real concern then is if the misrepresentation charge somehow gets attributed to her, but as it was not her primary petition I can’t see how that could be the case.

 

 

Edited December 28, 2020 by SusieQQQ

[b1uebottle 0]

13 minutes ago, SusieQQQ said:

OH that changes everything. You posted in the family of LPR forum so I assumed you were still an LPR. If you are a citizen, she will get forgiven any overstay, illegal work etc and will be able to adjust status despite all of that, so the whole thing becomes a lot easier. 
 

*facepalm* I just re-read your first post and you state you are a citizen...I somehow missed that, sorry.  The only real concern then is if the misrepresentation charge somehow gets attributed to her, but as it was not her primary petition I can’t see how that could be the case.

 

 

Thank you SusieQQQ for your response! That is partially relieving You don't need to apologize; your responses mean alot.

[Chancy 6,241]

14 hours ago, b1uebottle said:

Her mom submitted I-485 back in 2006 and they received their first denial this year in August

 

Since the I-485 had been denied back in August, check with your future spouse as well if she had been served a Notice To Appear in immigration court.  Her process of adjustment of status based on marriage to you will change slightly if she is already under removal proceedings.

 

[Ryan H 3,812]

Moved from Bringing Family Members of Permanent Residents to America forum to Adjustment of Status from Work, Student, & Tourist Visas forum.

Edited December 29, 2020 by Ryan H