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Immediate family based I -485 denied, what is the next step?
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gaulejetho
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Hi,
I did petition to my dad, USCIS I-130 , approved and case forwarded to NVC on January 2019. He came to USA on February 2019 under B1/B2 visa and received 6 months authorized to stay. I did call uscis customer service and filed I -485 with proof of I-130 approval. Recently they send case denied because you failed to submit applicant birth certificate, NO REQUEST OF EVIDENCE asked at all, letter said authorized to stay has been expired and option is appeal (I-290B) .last week I did send appeal with birth certificate, application and fee. Should my dad go back to Nepal and do consular processing or stay here and wait!
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guitarcenter
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Bro, I know you have different scenario here. But for parents i130. Do we need to submit parents birth certificate. For my case it is little hard to obtain that. And when I looked over some sites, they mention petitioners birth certificate which mentioned mother and fathers name but not beneficiaries birth certificate.

Do we need parents birth certificate too ?
iinception
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did you consult immigration attorney ? nor i would do so asap.
usketo
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@guitarcenter
Yes you do need to submit birth certificate for both, Petitioner and Beneficiary.
If you don't have one you'll have to make it from your Municipality.
Last edited: 09-Oct-19 09:11 AM
gaulejetho
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Birth Certificate of applicant NOT necessary for I -130 , but MUST for I -485, they supposed to ask for Request of Evidence (REO) but some reason they denied and ask to exit within 30 days. I did send them appeal with fee and cover letter myself , if situation get complicated i will find the attorney, I think if he go back Nepal then almost impossible to in USA again though he has 5 yr multiple visa.
ark
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The new legislation passed last year authorizes USCIS officers to deny the petition without issuing any RFE. So its best to provide everything required beforehand.

For your dad, definitely see wat can be done in 30 days. Is he still in valid status? He will definitely not be allowed to come back ever on B2 visa as he has already shown immigrant intent. Try not to accumulate unlawful presence for him.
Bennedict
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Hi Gaule,
I would just like to spare some two cents on your behalf, just a caveat that I may not be completely right all the time. So it seems you might have forgotten to submit either yourself / your father's birth certificates for adjustment of status. They pointed out your error but then they did not send you the RFE most probably because:

- You father's visitor visa time is expiring anyway if it is issued on February. It is October and he needs to leave the country if wants to honor the visa requirements, that is what USCIS is mentioning there in the rejection letter.
- Adjustment of status will take some time, and until then the beneficiary has to maintain the legal status technically, which you father may be not able to do now since he is here more than 5 months I believe. Extension of the visa is possible, but it might be lengthy time consuming wait game, so USCIS is preferring not to process the adjustment. But the point is a US citizen can petition for parents who are here out of status too as far as I know. It seems like USCIS does not want to promote that thought process in your case for some reason (Please check it with your attorney if it can be an option for you) May be because your father got the visitor visa after you filed the petition on his behalf and did not mention his immigration case is running and USCIS now did not like this (?) I do not know when he got the visitor visa really before or after the petition. But I believe, you cannot technically get the visitor visa if somebody has filed petition for you already.

So coming back to the solution. Yes do consult a lawyer as I am not the one, but if he leave the country he "may not" be able to come in visitor visa again as he showed the immigration intent, but he should be able to again come through a counselor processing in Nepal. Here again, I believe, the counselors over there will not look at rejected case (I do not know if you have to mention in the new adjustment petition if the first one was rejected, please check) that you filed while he was here in US. Even if they find out, they will most probably see that your father left after USCIS told him to and it might act to his advantage.
My two cents thanks.
Bennedict
· Snapshot 592
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I agree to what Ark is saying. Yes a lot is changing regarding the immigration. I come to know about new rules and changes every other time I check news in USCIS website. We all know who is doing this. Well.
gaulejetho
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I was thinking like you Bennedict before but after reviewing some information in USCIS
website for parent (immediate relative) category of US citizen they never unlawful to stay in US regardless of their visa status. In other hand he got first b1/b2 visa on 2011, renewed for another 5 yrs at 2016, basically he enjoy to short term visit but due to some family situation its good for him to stay here. so intent to immigrate is not valid statement in his case. The denial letter does not say bold statement leave within 33 days, it asking you can appeal if administrative error so i did appeal with fee and supporting documents. If appeal denied we can file motion reopen the file and document again... so should be fine, he is retired officer in Nepal so it might takes more long time but will settle ultimately on my favor (hopefully).
Another thing i surprised when i did application , they cash checked and send schedule for bio metric , i thought process smoothly going on and was expecting for medical or interview schedule unfortunately received denial letter.

FYI see below bar/restriction does not apply ...



Some or all of the INA 245(c) adjustment bars do not apply to certain categories of adjustment applicants. When adjudicating an adjustment application, an officer should carefully consider which bars apply.



B. Immediate Relatives
Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21. [2]

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:

The applicant is now employed or has ever been employed in the United States without authorization;

The applicant is not in lawful immigration status on the date he or she files the adjustment application;

The applicant has ever failed to continuously maintain a lawful status since entry into the United States;

The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen;

The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or

The applicant has ever violated the terms of his or her nonimmigrant status.
guitarcenter
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@gaulejetho

Thank you for your response. Sorry wasnt able to have any input in your scenario.

I am planning to file i130. But not the adjustment as all processing will be done from Nepal only. Applicant not here in US. So in that situation, birth certificate will never require right ?
Bennedict
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Hi Gaule,
I believe, your father's visitor visa must have expired by now if it was stamped on Feb of 2019. I do not know if that is acting against the adjustment of status that you did not take action early on to extend the visitor visa while he was here. To my experience each of the USCIS counselor is different, some may overlook the expiration date and process the adjustment since you are a US citizen, and some may just act according to what is black and what is white in paper. The birth certificate was missing and then like Ark said, the RFE thing is dumped so they rejected. I can not say for sure if the expired visitor visa (?) was a deal breaker here completely.
I would recommend you to call USCIS people if possible. Remember they are very wooden people to talk to with no emotions at all, most probably because they handle 1000s of cases like yours in a day and different. See if you can explain your case and if they can suggest you any way out. Since you said you filed appeal already so that might work without your father having to leave the country, maybe.
If you can check out this laywer's column from New York, he is quite insightful and helpful with his answers, back then I used to follow his column in New York Daily Post. You can even email him, he may or may not personally email you back, but I used to see Nepalese people students asking him a lot of immigration related stuffs. His twitter handle:
https://twitter.com/awernick?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor

His Column in the paper:
https://www.nydailynews.com/allan-wernick-staff.html
Last edited: 09-Oct-19 04:24 PM
gaulejetho
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Thank you for those links, it seems scary! lets see what we can do if they say no NO.
sakumaku
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Sorry to be blunt but he was rightfully denied. USCIS is discouraging AOS from visitor visas since this is abused mostly (by desis and Nepalese too). You should have let him go through consular process like everyone else. I don't see any reason why appeal or motion to reopen will favor you. Just follow the rule like everyone else and you will be fine.

https://www.visajourney.com/forums/topic/535005-denied-aos-please-help/
gaulejetho
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Sakumaku, I agree with the points, but they look each individual case case by case basis, My dad renewed visit visa after i become citizen( they should already know possible situation) still granted visa. Now i have kids and he enjoy to stay here that's all. Will see, I guess they will approve my appeal 290B form, The instruction said you can file appeal with in 30 days of this decision and another sentence says authorized to stay has been expired leave US within 30 days. so confusing... Any way lets hope... this may be good lesson for other saJha members too.
parboiled
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My suggestion to every fellow Nepalese, as all immigration application process is a hard long waiting game.

- Keep calling 1 (800) 375-5283 , try to speak with Level 2 officer , explain the situation instead of keep waiting 60, 90.. whatever the notice of action says. Make Info Pass explain it to the officer behind the window.

As "Bennedict" mentioned , and in my personal experience, Officers are very very different with personality, education and their background. They quit and get fired. Who ever worked on your case may not be working in the field office anymore.

- Create an account on "https://egov.uscis.gov" and open up service request - explain it thoroughly, wait for the response, monitor your case status.

- Do consult an experienced immigration attorney, get a better deal on fees. As I have noticed some of the attorneys do have the capability to contact field office and find out the case status.

-Doing it yourself is easy but case denials - motion to reopen, appeal sucks, more time and money. 

Thanks !!
Last edited: 12-Oct-19 12:31 PM
Manko Sathi
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u have a different scnerio, i would suggest u find a guniene immiration lawyer immediately
ark
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I hope you filed i290B for motion to reopen/reconsider and not to appeal. Appeal is done when you think their decision was incorrect which in this case isn’t. Only few categories of i485 can be appealed.
sajhamitra
· Snapshot 1825
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All, be very careful while preparing documents these days for immigration these days. Yes, they can deny you without sending RFE these days. There has been lot of changes happening very rapidly and it's so hard to keep up with.
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