Missed AOS I-485 interview due to delayed mail

[Matt0112 4]

My wife came here in July 2019 on K1 Fiancee Visa, we got married within 90 days and applied for AOS + EAD. Both forms were accepted and she got her EAD in 2020. She started working while waiting for AOS interview. We got an interview notice for Dec 16 2020 but the field office called her on Dec 15 (yes, one day before the interview) and said they have to cancel and will reschedule it. They also said to look for a new notice in a first week on Jan 2021. Nothing came over so we called USCIS on Jan 12 and were told nothing has changed and if we still don't get a notice, call back following Monday. Well, the notice finally got in our mailbox yesterday (Saturday, Jan 16) with an interview date of Jan 14. So we are basically a no show at this point.

 

What's best to do at this point? We want to call USCIS on Monday and explain it but I have a feeling that they won't care and we will have to reapply with new I485 and I130 at this point. I don't think it makes sense to do a case re-consideration, as delayed mailed is probably not a strongest defense out there and again - they won't care.

 

The main question is what happens to her EAD and if she can continue to work in a meantime? Her EAD is valid until 2022 but I believe USCIS can revoke it once they decide to decline out initial I485. If so, do we get notified of it by mail? I just want to make sure she doesn't get in trouble with new I485 if she continues to work. 

 

Thank for any feedback on advance.

[Crazy Cat 39,183]

Call USCIS immediately and beg for a new interview or find an attorney to plead your case....The delayed mail was the legitimate cause of your no show.....  If her current I-485 is denied, serious ramifications could follow.  You are correct.  The denial of an underlying I-485 would void the EAD, imo.  

Edited January 17, 2021 by Lucky Cat

[Crazy Cat 39,183]

https://hammondlawgroup.com/healthcareblog/2015/06/17/how-long-can-i-work-on-my-ead-after-my-i-485-is-denied/#:~:text=If the individual's I-485,This is not correct.

 

"If the individual’s I-485 is subsequently denied, the EAD card automatically terminates. However, many people are confused by the fact that the card, in the records of USCIS has been terminated, but is not taken away from them. They think that they can continue to work on the card until it expires. This is not correct. In fact, the EAD card is cancelled and their employment authorization is cancelled on the day that the decision is issued denying the I-485."

[Matt0112 4]

10 minutes ago, Lucky Cat said:

https://hammondlawgroup.com/healthcareblog/2015/06/17/how-long-can-i-work-on-my-ead-after-my-i-485-is-denied/#:~:text=If the individual's I-485,This is not correct.

 

"If the individual’s I-485 is subsequently denied, the EAD card automatically terminates. However, many people are confused by the fact that the card, in the records of USCIS has been terminated, but is not taken away from them. They think that they can continue to work on the card until it expires. This is not correct. In fact, the EAD card is cancelled and their employment authorization is cancelled on the day that the decision is issued denying the I-485."

Thanks for the reply.

 

I read some comments underneath and it looks like the denial has to specify what happens to the EAD, it doesn't seem like it's just voided automatically. Which would make sense, they have to give people certain amount of time to act of those things.

 

 

"My i-485 got denied and they pointed out that if i don’t appeal the decision then my EAD would be revoked. We sent the appeal and received the notice. And i am guessing my EAD was not revoked. "

 

"Dwight, I’m not convinced that the EAD is automatically terminated upon denial of an I-485, unless the Service specifically takes action to revoke it. In I-485 denials I’ve seen, the Service has made no mention of the revocation of the EAD and I’m not so sure it is automatically revoked in that situation. Do you have authority you are looking at to make that conclusion? The regs provide 3 instances where revocation is “automatic,” and it doesn’t include denial of an I-485. Otherwise, revocation happens after notice of intent to revoke and opportunity to respond. Not saying you are wrong; that just hasn’t been my conclusion before and I’m wondering if you have something to point to? Thanks."

[Crazy Cat 39,183]

18 minutes ago, Matt0112 said:

I read some comments underneath and it looks like the denial has to specify what happens to the EAD, it doesn't seem like it's just voided automatically. Which would make sense, they have to give people certain amount of time to act of those things.

 

 Once the final decision has been made to deny the I-485, there is no basis for the EAD.  As I said, call USCIS and beg for an interview.

Edited January 17, 2021 by Lucky Cat

[Matt0112 4]

Just now, Lucky Cat said:

Once the final decision has been made to deny the I-485, there is no basis for the EAD.  

I agree but my understanding is that there is a reason why they give you a timeframe to appeal your I485 denial. 

 

What he says just doesn't make a lot of sense to me. Let's say they denied it last Friday 01/15 and we will receive a letter sometime next week. That would mean my wife already worked one week illegally without being notified so she can make an informed decision about her employment and legal status here going forward.

[Crazy Cat 39,183]

3 minutes ago, Matt0112 said:

I agree but my understanding is that there is a reason why they give you a timeframe to appeal your I485 denial. 

 

What he says just doesn't make a lot of sense to me. Let's say they denied it last Friday 01/15 and we will receive a letter sometime next week. That would mean my wife already worked one week illegally without being notified so she can make an informed decision about her employment and legal status here going forward.

They haven't denied the I-485 yet.  An I-485 is not denied until AFTER the period for appeal......once they make a final decision to deny, she is out of status.

Edited January 17, 2021 by Lucky Cat

[Matt0112 4]

2 minutes ago, Lucky Cat said:

They haven't denied the I-485 yet.  An I-485 is not denied until AFTER the period for appeal......once they make a final decision to deny, she is out of status.

Ok that makes sense. Do you know what is the typical appeal period?

[Crazy Cat 39,183]

50 minutes ago, Matt0112 said:

Ok that makes sense. Do you know what is the typical appeal period?

I have found several cases here on VJ.  It appears 30 to 33 days is the period most are reporting for appeals.  Hopefully, you can call USCIS on Monday and get them to give you another interview date.  

Edited January 17, 2021 by Lucky Cat

[Matt0112 4]

Just now, Lucky Cat said:

I have several cases here on VJ.  It appears 30 to 33 days is the period most are reporting for appeals.  Hopefully, you can call USCIS on Monday and get them to give you another interview date.  

Yup, that's what I'm hoping for... Thanks a lot for all the help again!

[Ed&Midori1031 330]

1 hour ago, Matt0112 said:

My wife came here in July 2019 on K1 Fiancee Visa, we got married within 90 days and applied for AOS + EAD. Both forms were accepted and she got her EAD in 2020. She started working while waiting for AOS interview. We got an interview notice for Dec 16 2020 but the field office called her on Dec 15 (yes, one day before the interview) and said they have to cancel and will reschedule it. They also said to look for a new notice in a first week on Jan 2021. Nothing came over so we called USCIS on Jan 12 and were told nothing has changed and if we still don't get a notice, call back following Monday. Well, the notice finally got in our mailbox yesterday (Saturday, Jan 16) with an interview date of Jan 14. So we are basically a no show at this point.

 

What's best to do at this point? We want to call USCIS on Monday and explain it but I have a feeling that they won't care and we will have to reapply with new I485 and I130 at this point. I don't think it makes sense to do a case re-consideration, as delayed mailed is probably not a strongest defense out there and again - they won't care.

 

The main question is what happens to her EAD and if she can continue to work in a meantime? Her EAD is valid until 2022 but I believe USCIS can revoke it once they decide to decline out initial I485. If so, do we get notified of it by mail? I just want to make sure she doesn't get in trouble with new I485 if she continues to work. 

 

Thank for any feedback on advance.

Call USCIS IMMEDIATELY and explain what had happened, and hopefully they will give you a new interview ASAP.  

[Coco8 1,039]

Did you have the USPS informed delivery? If you have it and you have the photo of your letter and the date it said it was arriving, then you can also prove that your mail arrived late.

 

Though for most of December and the beginning of January, I never had any photos because it says that there were delays or something. They should definitely consider your case, because it was well known that there were delays because of the election, holidays, covid, underfunding, etc. 

[Diane and Chris 651]

13 hours ago, Matt0112 said:

Yup, that's what I'm hoping for... Thanks a lot for all the help again!

Don’t forget that tomorrow is a holiday. Try calling first thing Tuesday morning. Good luck!  I’m so sorry this happened to you. We have had so much trouble with the mail the past month and a half. It took 18 days for a letter from Social Security to get to me from a town that is an hour away!  I’m told that Amazon takes priority over everything else the post office delivers. 

[Matt0112 4]

15 hours ago, Diane and Chris said:

Don’t forget that tomorrow is a holiday. Try calling first thing Tuesday morning. Good luck!  I’m so sorry this happened to you. We have had so much trouble with the mail the past month and a half. It took 18 days for a letter from Social Security to get to me from a town that is an hour away!  I’m told that Amazon takes priority over everything else the post office delivers. 

Thanks, I called them this AM and their Infopass line was opened. They told me they can't reschedule over the phone because it's past the interview time already. They advised to type a letter of explanation, attach it to the interview notice and send it over to the local field office. I sent it overnight today so they get it tomorrow and we will wait what happens next. I'll keep you posted in case somebody else has a similar issue in the future.

 

Also I spoke to an immigration attorney today who gave me couple of additional ideas on how to deal with uscis to have them respond faster:

1. Contact my local congressional representative and they can follow up with uscis on my case.

2. Open a case with USCIS Ombudsman https://www.dhs.gov/topic/cis-ombudsman .

[Cornflake 108]

7 minutes ago, Matt0112 said:

Thanks, I called them this AM and their Infopass line was opened. They told me they can't reschedule over the phone because it's past the interview time already. They advised to type a letter of explanation, attach it to the interview notice and send it over to the local field office. I sent it overnight today so they get it tomorrow and we will wait what happens next. I'll keep you posted in case somebody else has a similar issue in the future.

 

Also I spoke to an immigration attorney today who gave me couple of additional ideas on how to deal with uscis to have them respond faster:

1. Contact my local congressional representative and they can follow up with uscis on my case.

2. Open a case with USCIS Ombudsman https://www.dhs.gov/topic/cis-ombudsman .

I think USCIS will be closed tomorrow and after tomorrow. Also I don't know whom you sent it, but if you sent it to the same address you sent your original AOS package as fast as I know they have to sign when they get mail if you send it via UPS or FedEx. And if they closed today there is no one to sign.

 

And I guess you didn't send it via USPS, because USPS closed today as well. 

Edited January 18, 2021 by Cornflake