We represented a client and her minor child. They had filed their I-485 applications as derivative applicants. Two months after the I-485 filing, the primary applicant, her husband died in a tragic accident. USCIS requested biometrics for all applicants, but she did not appear because she was informed that her I-485 application would not survive the death of the primary applicant. We filed a motion to reopen the case, showing that the applicant was and is legally entitled to survivor benefits under the Immigration and Nationality Act. USCIS reopened the case for the applicant and her minor child in approximately six weeks. Her I-485 has been reinstated.
Form I-485 Sample Cases
These are some sample cases from our files. It is impossible for us to present all have done past over 15 years of our practice. But these were some cases that came to mind when we started writing this column 2-3 years ago.
We have received a particularly remarkable green card approval a few weeks ago. USCIS alleged fraud and denied the green card where the spouse of a US citizen had entered the US on visa waiver and then applied for Adjustment of Status (AOS) within a few days after entry. We were retained once the green card had been denied. The allegations of fraud or misrepresentation are particularly troublesome because they operate as a PERMANENT bar against immigration. There is a narrowly tailored waiver available, but it can be difficult to obtain. We filed a Motion to Reopen the denied AOS and applied for a new AOS with the waiver request. Here comes the tricky part -- the waiver request form requires us to concede that we have committed fraud. That was untrue. Our clients had acted innocently. USCIS was of the opinion we must checkmark the box on the waiver form that admits to fraud. I refused to permit that. The reason: if we admit fraud under penalty of perjury, and that admission is false; would that admission not amount to perjury and perhaps fraud? We were willing to take this matter to court. We had sufficient evidence on the record indicating innocence. To our relief, USCIS approved the AOS without further inquiry. PS Note that entering the US on any short term visa (except K visas and dual intent visas like H-1, L-1, etc. – I have a blog entry on what are dual intent visas) and trying to convert to a long term visa or green card can be viewed with suspicion by USCIS. From: Rajiv. Click HERE to watch a video on this discussion. Adjustment of Status Form I-130 Form I-485 ESTA Fraud/Misrepresentation Waiver Engineers
We represented a Computer Software Engineer and his spouse. USCIS denied the applicant’s Form I-485 because his former employer withdrew his previously approved I-140 petition when the applicant moved to a different employer. The employer and their lawyer refused to provide any information regarding the filing. So we were constrained to obtain the relevant information directly from the government. Once we received our client’s job description with his former employer, we were able to assess the applicant’s AC-21 porting eligibility. Based on this information, we filed a motion to reopen and reconsider the I-485, explaining that the applicant’s I-485 should not have been denied, considering his eligibility for AC21 portability. USCIS agreed, vacated the denials, and reopened the case.
We received I-485 RFE's for multiple pending clients where the sponsoring employer is located in State A and the applicant is living in State B. In such cases, USCIS requests justification for the discrepancy in locations. Citing to various section of pertinent legal code in our RFE responses, many I-485 applications have been approved within 60 days of RFE response submission.
Indian-born client had I-140 approved under Category EB2 with Priority Date of 2003 and a pending I-485 case affected by retrogression. The client married a foreign spouse while I-485 was pending. The new spouse was born in Canada, a country not affected by retrogression in the client's category. We filed the I-485 for the new spouse and a request for cross-chargeability for the main applicant. The client's I-485 was approved 3 months after request for I-485 cross-chargeability and the spouse was approved 5 months after the I-485 filing.
Indian-born client had I-140 Approved and I-485 filed through first Labor Certification case under EB3 with a 2003 Priority Date. He also filed an I-140 under EB2 with a Priority Date of 2006. Rajiv advised to file I-485 through 2nd Labor Certification, requesting Service to permit inheritance of the 2003 Priority Date to have a current I-485 case. Based upon the 2nd I-485 being filed and the EB2 category request, the client obtained his Permanent Residency 1.5 months after filing the 2nd I-485.