[Urgent advice needed] I-130 and I-485 Denied Prematurely, before deadline for RFE

[HopefulForGC 11]

Hi, I am reaching out for some advice and help on how to proceed. I am the wife of a green card holder and filed my I485, I131, I130 and I765 in March 2022 based on F2A application.

On November 20th, 2023, my I-130 case status changed to "Request for Evidence Sent" (see attachment). The notice did not get uploaded to my USCIS account, and I never received it in the mail. I waited patiently until December 11th, when I submitted a "Service Request" on USCIS to have the notice sent to me again. On December 22nd, I finally received the notice in the mail according to USPS Informed Delivery. I was out of town due to christmas and holidays, so I did not get home until Mid January to see the notice. When I got back, the notice mentioned that I need to provide evidence of a bonafide marriage, anything from photos of trips, shared utilities, bank statements, etc. The notice clearly stated that the deadline to submit the evidence was March 18th. Around mid January, I started to prepare the request for evidence package. I had to wait for a few weeks to get some documents such as a letter from my bank stating when the joint bank account with my husband was opened, etc. This is why it took me some time to prepare the completed package of evidence. Finally, around mid Feb, I was ready to mail the package to USCIS. However, on Feb 20th, before I had mailed the package, I got notified on my case that both my I-130 and I-485 were denied. On USCIS account, only the I-485 denial notice was uploaded. Both cases I-130 and I-1485 showed "Case closed". The denial notice mentioned that my case was denied because I have not provided any evidence that suggest I am eligible to remain in the USA. I fear that this is a clear USCIS error, in which the field office who was adjudicating my case used the original date of November 20th, 2023 to calculate the deadline of Feb 20th, 2023, instead of using the deadline on the RFE notice I received on Dec 22, 2023, which clearly states multiple times that the deadline for RFE is March 18th, 2024.

 

Now I am not sure what to do. My family member said to send the RFE as soon as possible, with a copy of the RFE notice, and explaining that the deadline was not until March 18th, 2024. I spoke to a lawyer, who said that sending the RFE is not going to help because the case is already denied and they will just ignore it. Instead, the lawyer advised that the only correct course of action is to file a motion to reopen the case, where we will submit the evidence package, and the RFE notice, and explain that the case was closed in error, and prematurely. Some of my family members are saying not to file the motion to reopen, and just reapply to the I485, I131, I130 and I765.  I am so lost and don't know how to proceed.

 

I have been lawfully present in the USA on my I-485 for last two years and have been patiently waiting for approval. My biggest fear is that I do not want to be out of status and complicate my case any further. The lawyer said that I do not need to leave the USA because once I file the motion to reopen, I do not need to leave the USA. I fear that lawyer may not be 100% correct here, because if the motion to reopen gets denied for any reason, I will be out of status, and subject to removal proceedings, and can complicate my case even more.

 

Should I file motion to reopen or should I reapply everything? Should I try reaching out to the field office director who signed my denial notice on Linked In to explain the situation? Is there any way I can get them to look at the case again without having to file the motion to reopen, like maybe going through EMMA or calling USCIS? Can I file mandamus based on this denial to remain in status or for them to look at my case again?

 

My biggest concern is having to leave the USA, because my husband and I just bought a house together and we are planning a family. Leaving the USA would be terrible, but at the same time, I do not want to be out of status.

 

Edited February 23 by HopefulForGC

[OldUser 5,112]

Sorry to hear about your story. The situation is very serious.

 

It appears that you're out of status now. You may be already subject to a 3 or 10 year bar if you leave the US (confirm with a laywer).

 

Since your I-130 was denied, I'm not even sure if you can just stay and adjust status by filing another AOS packet. The overstay is not forgiven for a spouse of LPR.

 

You may need to fight USCIS decision, but it will be challenging.

 

Others can help with answers. I don't think this is a DIY case.

Edited February 23 by OldUser

[HopefulForGC 11]

Update: I just received the I-130 denial in the mail. It says that "according to RFE notice issued on Dec 22, 2023, you have 88 days to provide the evidence". Then it proceeds to say that "I failed to provide the evidence". Dec 22, 2023 + 88 days = March 18th, 2024. Their own denial letter mentions I had until March 18th to submit the evidence. How did they screw up this bad?

[HopefulForGC 11]

8 minutes ago, OldUser said:

Sorry to hear about your story. The situation is very serious.

 

It appears that you're out of status now. You may be already subject to a 3 or 10 year bar if you leave the US (confirm with a laywer).

 

Since your I-130 was denied, I'm not even sure if you can just stay and adjust status by filing another AOS packet. The overstay is not forgiven for a spouse of LPR.

 

You may need to fight USCIS decision, but it will be challenging.

 

Others can help with answers. I don't think this is a DIY case.

The I-485 denial notice mentioned :

 

You are not authorized to remain in the United States. If you fail to depart the United States within 33 days of the date of this letter, USCIS may issue you a Notice to Appear and commence removal proceedings against you with the immigration court. This may result in your being removed from the United States and found ineligible for a future visa or other U.S. immigration benefit.

 

You may not appeal this decision. However, if you believe that the denial of your Form I-485 is in error, you may file a motion to reopen or a motion to reconsider using Form I-290B, Notice of Appeal or Motion. The grounds for a Motion to Reopen and Motion to Reconsider are explained in 8 CFR 103.5(a). You must file Form I-290B within 30 days of the date of this decision if the decision was served in person, or within 33 days if the decision was served by mailed.

 

 

 

[OldUser 5,112]

3 minutes ago, HopefulForGC said:

Update: I just received the I-130 denial in the mail. It says that "according to RFE notice issued on Dec 22, 2023, you have 88 days to provide the evidence". Then it proceeds to say that "I failed to provide the evidence". Dec 22, 2023 + 88 days = March 18th, 2024. Their own denial letter mentions I had until March 18th to submit the evidence. How did they screw up this bad?

It does look like an error on USCIS part.

Make sure to act fast and get everything delivered to USCIS by March 10th ideally.

 

You may need to file I-290B, attach all the evidence and response and craft the letter explaining the timeline of events and why they should reconsider.

 

 

[HopefulForGC 11]

6 minutes ago, OldUser said:

It does look like an error on USCIS part.

Make sure to act fast and get everything delivered to USCIS by March 10th ideally.

 

I have everything prepared for a few days now, I am ready to send it, but the denial caught me surprised. Should I send the request for evidence package, along with a copy of the RFE notice, to the USCIS field office outside of the motion to reopen? And then separately, file a motion to reopen as soon as possible?

[Lemonslice 4,596]

When will your spouse become a citizen?

[HopefulForGC 11]

4 hours ago, Lemonslice said:

When will your spouse become a citizen?

My husband will become eligible for citizenship in July 2024. He plans to apply for naturalization then 

[Timona 3,970]

I guess it's time to wait for him to become a citizen. I wouldn't send that RFE. Motion to reopen takes time and they may claim that you didn't maintain your legal status. 

 

How have you been maintaining status? What visa are you on? And is it still valid? Because as spouse of GC holder, you need to have valid status by the time your I-485 is adjudicated. So, what's the answer?

[Crazy Cat 39,693]

39 minutes ago, Timona said:

you need to have valid status by the time your I-485 is adjudicated.

That is a good subject for discussion, because I have read that ANY previous time out of status is a bar to adjustment of status for other than immediate relatives and a few others.  The following is the reference I saw, but there might be more.

Chapter 2 - Eligibility Requirements | USCIS

F. Bars to Adjustment of Status

 

Noncitizen	INA Section	Entries and Periods of Stay to Consider	Exempt from Bar
Crewman[102]	245(c)(1)	Only most recent permission to land, or admission prior to filing for adjustment	VAWA-based applicants
In Unlawful Immigration Status on the Date the Adjustment Application is Filed OR Who Failed to Continuously Maintain Lawful Status Since Entry into United States[103] OR Who Continues in, or Accepts, Unauthorized Employment Prior to Filing for Adjustment	245(c)(2)[104]	All entries and time periods spent in the United States (departure and return does not remove the ineligibility)[105]	VAWA-based applicants Immediate relatives[106] Certain special immigrants[107] 245(k) eligible[108]
Admitted in Transit Without a Visa (TWOV)	245(c)(3)	Only most recent admission prior to filing for adjustment	VAWA-based applicants
Admitted as a Nonimmigrant Without a Visa under a Visa Waiver Program[109]	245(c)(4)	Only most recent admission prior to filing for adjustment	VAWA-based applicants Immediate relatives
Admitted as Witness or Informant[110]	245(c)(5)	Only most recent admission prior to filing for adjustment	VAWA-based applicants
Who is Deportable Due to Involvement in Terrorist Activity or Group[111]	245(c)(6)	All entries and time periods spent in the United States	VAWA-based applicant[112]
Seeking Adjustment in an Employment-based Immigrant Category and Not in a Lawful Nonimmigrant Status	245(c)(7)	Only most recent admission prior to filing for adjustment	VAWA-based applicants Immediate relatives and other family-based applicants Special immigrant juveniles[113] 245(k) eligible[114]
Who has Otherwise Violated the Terms of a Nonimmigrant Visa[115] OR Who has Ever Engaged in Unauthorized Employment[116]	245(c)(8)[117]	All entries and time periods spent in the United States (departure and return does not remove the ineligibility)[118]	VAWA-based applicants Immediate relatives[119] Certain special immigrants 245(k) eligible[120]

Edited February 24 by Crazy Cat

[appleblossom 1,472]

19 hours ago, HopefulForGC said:

Update: I just received the I-130 denial in the mail. It says that "according to RFE notice issued on Dec 22, 2023, you have 88 days to provide the evidence". Then it proceeds to say that "I failed to provide the evidence". Dec 22, 2023 + 88 days = March 18th, 2024. Their own denial letter mentions I had until March 18th to submit the evidence. How did they screw up this bad?

 

Sounds like the 88 days started when you were issued the RFE initially on 20th November - i.e. a deadline of 16th February, which would then match up with you receiving the refusal on 20th February. Did the RFE you received in December specifically give you the March date?

[Redro 4,602]

30 minutes ago, appleblossom said:

 

Sounds like the 88 days started when you were issued the RFE initially on 20th November - i.e. a deadline of 16th February, which would then match up with you receiving the refusal on 20th February. Did the RFE you received in December specifically give you the March date?

Piggy backing off this comment. You might have received 2 RFEs one for “proof of valid status”(I485) and one for “updated marital status”(I130)… 

As your denial received was because of proof of status not proof of bonafides… 

What visa/status did you adjust from?

In your response, you’ll have to show proof of maintaining status as well as bonafides…  

 

 

[Family 3,558]

Do yourself a favor and file I-290 B Today

 Only one is required to take care of  I-485 and ALL underlying cases ( I-130, I-765 , I-131).

‘The attorney advice was absolutely correct. 

Edited February 24 by Family

[HopefulForGC 11]

4 hours ago, Timona said:

I guess it's time to wait for him to become a citizen. I wouldn't send that RFE. Motion to reopen takes time and they may claim that you didn't maintain your legal status. 

 

How have you been maintaining status? What visa are you on? And is it still valid? Because as spouse of GC holder, you need to have valid status by the time your I-485 is adjudicated. So, what's the answer?

 

I entered on a B1/B2 visitor visa, and was doing adjustment of status (I-485) at the same time as the I-130 was pending. They denied the I-130, and the I-485 together. The I-130 denial says that I failed to provide evidence of a bondafide marraige. Here is a snippet from the I-130 denial:

 

Edited February 24 by HopefulForGC

[Timona 3,970]

17 minutes ago, HopefulForGC said:

 

I entered on a B1/B2 visitor visa, and was doing adjustment of status (I-485) at the same time as the I-130 was pending. They denied the I-130, and the I-485 together. The I-130 denial says that I failed to provide evidence of a bondafide marraige. Here is a snippet from the I-130 denial:

 

 

Then, your AOS was rightfully denied. You know you married a GC holder, right? As such, you need to be in status at the time of your I-485 approval. There's no way a B-2 will give you that much time. 

 

Don't waste your money and time on appeal. You're just going to put yourself on the radar. 

 

Wait till he becomes a USC. I don't normally agree with B-2 AOS shortcuts, but this is your best chance. 

 

I'm out, because of the bolded above. 

 

P.S: If you'd married a USC, you can AOS anytime, with overstays.