USCIS FAQ Part 3

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USCIS has just posted another FAQ regarding concurrent filing of I-140 (Petition for Alien Worker) and the I-485 (Adj. of Status).

Although they have already mentioned this on their previous recent FAQs, Q36 from this new FAQ was very specific to Schedule As.

They will accept I-140s and continue processing it as they have always done BUT starting August 1, 2007 and thereafter, filing of the I-485 (AOS) for those under Schedule A will not be accepted anymore and will be rejected. This new FAQ makes it very clear that the extended time (until August 17, 2007) to file AOS is not for schedule As and are for other categories such as applicants already on H1Bs and others but other than Schedule A.

*Reference: http://www.uscis.gov/files/pressrelease/FAQ3.pdf

3 weeks ago, one of my co-worker told me that her I-485 has been denied.....I thought her case would be smooth sailing but the Nebraska service center adjudicator apparently exercised their discretionary power and denied her application.....

this is one case wherein she really had no intent of adjusting her status when she first came here. the thing is, there no concrete way of proving non-intent by the papers you send to USCIS.....you can not argue with the officer that you do not have intent as most employment based AOS do not have to undergo an interview....the decision would all be based on all the standard papers that you submit to USCIS.

Unlucky for her if she really had no intent and yet the adjudicator saw it the other way around. If she came after 30 days, she has the benefit of appealing it in an immigration court. Lots of money though as she will have to pay her atty. more.....

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Unlucky for her if she really had no intent and yet the adjudicator saw it the other way around. If she came after 30 days, she has the benefit of appealing it in an immigration court. Lots of money though as she will have to pay her atty. more.....

she toured the east coast together with her family so it took her a while to decide whether to stay or go home. she submitted her application almost 4 months (120 days) after entering the US that is why i thought her case would go on smoothly....she also did medicals a few days before submitting the I-485

im quite sure that I-485 denials based on discretion is non-appealable.....

by the way, where did you found the source saying if one came after 30 days, one can appeal in immigration court? i have never read this before

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I heard that from a lawyer. The only evidence that we can see now is the jurisprudence on these cases. There were AOS denial cases filed in US district courts. Some won, some lose.

Did she submit any paper that is dated within 30 or 60 days of arrival? It could be the contract, etc. Is it possible that if someone stayed for too long that the adjudicators presume that the applicant worked without EAD and thus violate the NIV? Just guessing....it is important to learn this lesson.

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I heard that from a lawyer. The only evidence that we can see now is the jurisprudence on these cases. There were AOS denial cases filed in US district courts. Some won, some lose.

Did she submit any paper that is dated within 30 or 60 days of arrival? It could be the contract, etc. Is it possible that if someone stayed for too long that the adjudicators presume that the applicant worked without EAD and thus violate the NIV? Just guessing....it is important to learn this lesson.

Sorry, but that is incorrect information. Especially when someone entered the US on a tourist visa to begin with. The attorney gave you incorrect info. We have seen some in the court system, but it was when the person was on an H1-B visa, not the tourist visa. As a tourist, there is no status at all, you are purely here as a guest, and nothing more. There is no time to even attempt to appeal, you usually have about 30 days to leave the US if you were under the tourist visa to begin with.

You do not even get the EAD until about five months in the US under normal conditions to begin with. And there are many in the past that just submitted their papers a few days before their six months were up and they were not working illegally here. For some reason, you seem to look at everything based on someone doing something illegal here, and that is not the case.

AOS from a tourist visa is dual intent in most cases, and notice that I have stated most. Not 100% of the case, but from several countries it has to be proven otherwise by the petitioner, the burden is on them.

And the same thing happens when a tourist arrives in the US, notice that on the visa that you receive for travel to the US, it states that entry to the US is on the discretion of the officer at the arriving port of call. They can deny you entry and return you back home, and we see it all of the time, especially when they think that someone has lied to them. And they do record wha the person stated when you arrive in the US at the airport many times, and this can turn around and bite many if what they tell someone later on is not the same. We are not dumb in this country, and know many of the little tricks, have seen them many times over. And have watched the person that tried, get escorted out of the country.

What one attorney tells you has no bearing on anything. And you can take that to the bank. Just ask the others here.

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I guess most of us here would like to know what options remain once AOS is denied? Is going back home the only option?

The lawyer suggested that we can appeal and you said that is wrong. If the lawyer is wrong, then what will be your advice?

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If you are on a tourist visa and the AOS is denied, then you have to leave the US. When you are on the B1/B2 and submit the I-485, the tourist visa actually fails to exist. If you get denied on your I-485, then you no longer have a visa to remain in the US. And if you look closely at the requirements about appeal, there is no place that it states that it is a possibility if you were under the tourist visa.

That is why you must have the I-131 in hand if you decide to go home during that time, as the tourist visa is no longer valid. It was cancelled the day that the I-485 was submitted.

The attorneys get paid to represent you in court, they get paid whether they win or not. Best question to ask your attorney is how many cases have they been successful with, not how many that they have submitted. You will see appeals if someone gets their green card renewal rejected, but that is completely different again, they had an actual green card in hand. And if under the H1-B, then it means that there were issues with their petition but they have already been in the US for several years working and paying taxes here. But with a tourist visa? Nothing can be done at all, and it states that on every document from USCIS.

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here, try reading this post (click here)and click the "source" link below that post to read the whole article coming from a former uscis adjudicator.

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After going back home, can I revert back to CP using the existing I-140?

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No, the I-140 that was with that I-485 is cancelled as well. You will need to start over from the beginning. You do not get any credit for that prior PD date.

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What if I go back home before the decision is reach, like approval or denial, is it possible to go back to CP and retain my PD?

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After going back home, can I revert back to CP using the existing I-140?

You have me puzzled, are you currently trying to go thru AOS processing? Were you in the US the required amount of time before it was even submitted? Where are you now? If the processing is in progress, and you are not in the US, then not sure about exactly what your status is.

The I-140 can be submitted at anytime, but the I-485 has been under tight time that it could be submitted especially since the retrogression started last year. Were you actually in the US when it was submitted in just the past couple of weeks, or are you asking about someone else?

If you were not here for at least three months, and do not have a job at home, and other things that would show that you did not intend to remain in the US, the burden of proof is on you.

Two of my co-moderators here have been waiting since prior to the retrogression started to get things done the legal way, so tourist visa right now to skip ahead of the line is not a good thing. And it is dual intent when you come to the US for the purpose of staying, and that is being closely followed right now. Expect to see a much higer numbers of denials, especially if not all documents are included with the petition. Especially proof of job being posted as well as the VSC. That needs to be submitted right from the beginning, they are not going to be asking for it.

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I am just trying to get an answer for a hypothetical case and get some possible options if ever I reach the same situation.

My question is: Can I abandon my AOS and revert back to CP and still retain my PD?

Thanks for the answer.

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