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  • ^^^^**** COMPLEX CASE^^**** I 485 interview Help needed

    I am in really need your help to find a solution in my condition

    my case is super complex. I came on B visa, and applied Asylum case, while B status was valid, however, after six months my status got expired and asylum case is still pending, I got the interview for I 485 based on I-140 petition approved (EB3) through my employer.

    I read the law under section INA 245 ( c)(2) Act, notably, 8 U.S.C. § 1255(c) (2)(2000). an alien “who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed to maintain continuously a lawful status since entry into the United States, other than through no fault of his own or for technical reasons is ineligible for adjustment of status under section 245(a) of the act.

    That point was addressed in Matter of L-K, 23 I. & N. Dec. 677, 680 (BIA 2004). Here a Ukrainian citizen entered the U.S as a nonimmigrant visitor and filed an application for asylum with DHS before the expiration of her visa. The application remained pending as her lawful status expired. DHS referred the asylum application to Immigration Court, where it was denied, and then subsequently appealed by the Ukrainian citizen. During the appeal, the Ukrainian citizen was selected for a Diversity Lottery Visa, so she applied for an adjustment of Status. An Immigration Judge granted adjustment, but the BIA reversed.

    In its decision, the Board of Immigration Appeals (BIA) considered these provisions that an alien in lawful nonimmigrant status who files for Asylum and then falls out of nonimmigration status may be eligible “for a technical reason” under Section 1255(c)(2)(2000) and eligible to adjust status if an Asylum application is pending. However, that alien is no longer eligible to adjust status if DHS acts on the asylum request by approving or denying the application, referring it to immigration court prior to the time the alien applied for adjustment of status.

    The DHS argue with regulation noted 8 C.F.R. § 1245.1 (d) (2)(ii) relates only to technical violations of status due to “inaction of the DHS”. It specifically provides that the applicant will not be considered to have failed to maintain status if a request to maintain status has been made and “the DHS has not yet acted on that request”. Thus, once the DHS has acted upon a pending asylum application, the “technical” reasons for the violation cease to exist, and the applicant may no longer be considered to be out of status for a technical reason.

    However, DHS failed to respond adequately to the Board’s repeated requests relating to its own practices in this regards, referring to the footnote /7 addressed particularly, the Board requested information from the DHS at oral argument and in supplemental briefs regarding the current practices in its District Offices and Services Centers relating to the processing of applications for adjustment of status for individuals similarly situated to the respondent (Ukraine lady). We did not receive any concrete information from the DHS in this regard. In addition, we note that the DHS’s suggestion that the respondent “could easily have filed for an extension of her authorized stay to keep her non-immigration status while the asylum application was adjudicated, “borders on disingenuous.

    Based on the above scenario, and consider my case:

    Q1. Getting interview notice (and next month I have an interview,) does it mean that my eligibility has been verified by MSC and therefore, they send it to the local office for interview?
    Q2. I asked my employer's attorney about the eligibility and he said you are fine, also I called another big attorney and he said that the same that it is ok, BUT I am confused, If in case of denial what will be my option?
    Q3: Does I stay as my pending asylum application is not yet decided, or USCIS will transfer my case to NTA Court?
    Q4: I have 2 EAD C08 and recently got C09, my attorney said no need to renew your asylum C08 EAD which is going to expire in next month, I am afraid as USCIS will not renew if they found another EAD c09 is still valid, in this what shall I do?
    Q4: If attending interview will trouble to me, shall i cancel my interview, otherwise attend the interview? please advise.

  • #2
    Originally posted by conti View Post
    I am in really need your help to find a solution in my condition

    my case is super complex. I came on B visa, and applied Asylum case, while B status was valid, however, after six months my status got expired and asylum case is still pending, I got the interview for I 485 based on I-140 petition approved (EB3) through my employer.

    I read the law under section INA 245 ( c)(2) Act, notably, 8 U.S.C. § 1255(c) (2)(2000). an alien “who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed to maintain continuously a lawful status since entry into the United States, other than through no fault of his own or for technical reasons is ineligible for adjustment of status under section 245(a) of the act.

    That point was addressed in Matter of L-K, 23 I. & N. Dec. 677, 680 (BIA 2004). Here a Ukrainian citizen entered the U.S as a nonimmigrant visitor and filed an application for asylum with DHS before the expiration of her visa. The application remained pending as her lawful status expired. DHS referred the asylum application to Immigration Court, where it was denied, and then subsequently appealed by the Ukrainian citizen. During the appeal, the Ukrainian citizen was selected for a Diversity Lottery Visa, so she applied for an adjustment of Status. An Immigration Judge granted adjustment, but the BIA reversed.

    In its decision, the Board of Immigration Appeals (BIA) considered these provisions that an alien in lawful nonimmigrant status who files for Asylum and then falls out of nonimmigration status may be eligible “for a technical reason” under Section 1255(c)(2)(2000) and eligible to adjust status if an Asylum application is pending. However, that alien is no longer eligible to adjust status if DHS acts on the asylum request by approving or denying the application, referring it to immigration court prior to the time the alien applied for adjustment of status.

    The DHS argue with regulation noted 8 C.F.R. § 1245.1 (d) (2)(ii) relates only to technical violations of status due to “inaction of the DHS”. It specifically provides that the applicant will not be considered to have failed to maintain status if a request to maintain status has been made and “the DHS has not yet acted on that request”. Thus, once the DHS has acted upon a pending asylum application, the “technical” reasons for the violation cease to exist, and the applicant may no longer be considered to be out of status for a technical reason.

    However, DHS failed to respond adequately to the Board’s repeated requests relating to its own practices in this regards, referring to the footnote /7 addressed particularly, the Board requested information from the DHS at oral argument and in supplemental briefs regarding the current practices in its District Offices and Services Centers relating to the processing of applications for adjustment of status for individuals similarly situated to the respondent (Ukraine lady). We did not receive any concrete information from the DHS in this regard. In addition, we note that the DHS’s suggestion that the respondent “could easily have filed for an extension of her authorized stay to keep her non-immigration status while the asylum application was adjudicated, “borders on disingenuous.

    Based on the above scenario, and consider my case:

    Q1. Getting interview notice (and next month I have an interview,) does it mean that my eligibility has been verified by MSC and therefore, they send it to the local office for interview?
    Q2. I asked my employer's attorney about the eligibility and he said you are fine, also I called another big attorney and he said that the same that it is ok, BUT I am confused, If in case of denial what will be my option?
    Q3: Does I stay as my pending asylum application is not yet decided, or USCIS will transfer my case to NTA Court?
    Q4: I have 2 EAD C08 and recently got C09, my attorney said no need to renew your asylum C08 EAD which is going to expire in next month, I am afraid as USCIS will not renew if they found another EAD c09 is still valid, in this what shall I do?
    Q4: If attending interview will trouble to me, shall i cancel my interview, otherwise attend the interview? please advise.
    1. No
    2.You should be ok as asylum is still pending. I have heard a lawyer say you have to withdraw your asylum case before USCIS can decide your adjustment based on another case. Ask your lawyer about this. If your adjustment is denied you are still pending asylum.
    3. See 2.
    4.Follow your lawyers advice. No need to have 2 EAD.
    5.You have to go to interview or your case will be denied.

    Comment


    • #3
      I am not an expert, and you seem to have already researched pretty deep into the legal questions. I know that the USCIS Policy Manual says that a pending application, like pending EOS, pending COS, or pending AOS, does not make you in status for AOS purposes; in the case of pending EOS/AOS, they would pause the AOS to wait to see if the EOS/COS is approved before continuing. I would think that pending asylum would be the same way. But again I am not an expert so I don't know if there is some special case for pending asylum; and in any case, the USCIS Policy Manual is USCIS's own interpretation which can be overruled by the immigration courts.

      As the other answer said, if your AOS is denied, you are still pending asylum. If both are denied, you might be able to do consular processing abroad on your I-140. You do not accrue unlawful presence while a bona fide asylum application is pending, as long as you didn't work illegally, so you shouldn't have a ban if you leave the US. I don't know whether you have a country you can go to for consular processing though, as I presume you are scared of going back to your country.

      This is my personal opinion and is not to be construed as legal advice.

      Comment


      • #4
        Originally posted by newacct View Post
        I am not an expert, and you seem to have already researched pretty deep into the legal questions. I know that the USCIS Policy Manual says that a pending application, like pending EOS, pending COS, or pending AOS, does not make you in status for AOS purposes; in the case of pending EOS/AOS, they would pause the AOS to wait to see if the EOS/COS is approved before continuing. I would think that pending asylum would be the same way. But again I am not an expert so I don't know if there is some special case for pending asylum; and in any case, the USCIS Policy Manual is USCIS's own interpretation which can be overruled by the immigration courts.

        As the other answer said, if your AOS is denied, you are still pending asylum. If both are denied, you might be able to do consular processing abroad on your I-140. You do not accrue unlawful presence while a bona fide asylum application is pending, as long as you didn't work illegally, so you shouldn't have a ban if you leave the US. I don't know whether you have a country you can go to for consular processing though, as I presume you are scared of going back to your country.
        Yes, I can't go back to my country where I claimed Asylum, however, my question is shall i go for consular processing in a 3rd country, ( like near to US) CA or Mexico? shall i go and get the visa stamp.
        Q2: After the interview, if they deny the case ..! shall i still apply CP outside the USA based on I 140 petition?

        Q3: C09 EAD will be void if the AOS is denied and in case of pending Asylum, I have to apply for renew for C08 and do not work until receive the 797C form.? please confirm

        Comment


        • #5
          Originally posted by azblk View Post

          1. No
          2.You should be ok as asylum is still pending. I have heard a lawyer say you have to withdraw your asylum case before USCIS can decide your adjustment based on another case. Ask your lawyer about this. If your adjustment is denied you are still pending asylum.
          3. See 2.
          4.Follow your lawyers advice. No need to have 2 EAD.
          5.You have to go to interview or your case will be denied.
          Thanks for the reply, for Q2; you are talking about the Stipulation of removal, you have to apply (stipulation of removal) to ICE before USCIS adjustment of status, if the ICE accepted, then you wont be in removal proceeding and CIS will adjust your status ....but these days it is impossible, as ICE will reject the case and you would have to appear and Motion the Court, opposing counsel would not stipulate. USCIS will not have jurisdiction to determine an I-485 while you are in removal.

          Comment


          • #6
            Originally posted by conti View Post
            I am in really need your help to find a solution in my condition

            my case is super complex. I came on B visa, and applied Asylum case, while B status was valid, however, after six months my status got expired and asylum case is still pending, I got the interview for I 485 based on I-140 petition approved (EB3) through my employer.

            I read the law under section INA 245 ( c)(2) Act, notably, 8 U.S.C. § 1255(c) (2)(2000). an alien “who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed to maintain continuously a lawful status since entry into the United States, other than through no fault of his own or for technical reasons is ineligible for adjustment of status under section 245(a) of the act.

            That point was addressed in Matter of L-K, 23 I. & N. Dec. 677, 680 (BIA 2004). Here a Ukrainian citizen entered the U.S as a nonimmigrant visitor and filed an application for asylum with DHS before the expiration of her visa. The application remained pending as her lawful status expired. DHS referred the asylum application to Immigration Court, where it was denied, and then subsequently appealed by the Ukrainian citizen. During the appeal, the Ukrainian citizen was selected for a Diversity Lottery Visa, so she applied for an adjustment of Status. An Immigration Judge granted adjustment, but the BIA reversed.

            In its decision, the Board of Immigration Appeals (BIA) considered these provisions that an alien in lawful nonimmigrant status who files for Asylum and then falls out of nonimmigration status may be eligible “for a technical reason” under Section 1255(c)(2)(2000) and eligible to adjust status if an Asylum application is pending. However, that alien is no longer eligible to adjust status if DHS acts on the asylum request by approving or denying the application, referring it to immigration court prior to the time the alien applied for adjustment of status.

            The DHS argue with regulation noted 8 C.F.R. § 1245.1 (d) (2)(ii) relates only to technical violations of status due to “inaction of the DHS”. It specifically provides that the applicant will not be considered to have failed to maintain status if a request to maintain status has been made and “the DHS has not yet acted on that request”. Thus, once the DHS has acted upon a pending asylum application, the “technical” reasons for the violation cease to exist, and the applicant may no longer be considered to be out of status for a technical reason.

            However, DHS failed to respond adequately to the Board’s repeated requests relating to its own practices in this regards, referring to the footnote /7 addressed particularly, the Board requested information from the DHS at oral argument and in supplemental briefs regarding the current practices in its District Offices and Services Centers relating to the processing of applications for adjustment of status for individuals similarly situated to the respondent (Ukraine lady). We did not receive any concrete information from the DHS in this regard. In addition, we note that the DHS’s suggestion that the respondent “could easily have filed for an extension of her authorized stay to keep her non-immigration status while the asylum application was adjudicated, “borders on disingenuous.

            Based on the above scenario, and consider my case:

            Q1. Getting interview notice (and next month I have an interview,) does it mean that my eligibility has been verified by MSC and therefore, they send it to the local office for interview?
            Q2. I asked my employer's attorney about the eligibility and he said you are fine, also I called another big attorney and he said that the same that it is ok, BUT I am confused, If in case of denial what will be my option?
            Q3: Does I stay as my pending asylum application is not yet decided, or USCIS will transfer my case to NTA Court?
            Q4: I have 2 EAD C08 and recently got C09, my attorney said no need to renew your asylum C08 EAD which is going to expire in next month, I am afraid as USCIS will not renew if they found another EAD c09 is still valid, in this what shall I do?
            Q4: If attending interview will trouble to me, shall i cancel my interview, otherwise attend the interview? please advise.

            NEVER EVER CANCEL your interview. I think your wait has turned into undue stress and excessive researching. Rather than thinking of the ways that USCIS might deny your case, think of the asset that you will be to the country once you have your GREEN CARD. Evidently you sent in your documents before your initial visa and asylum doc expired. So that in itself is PERFECT. Exhale and go to the interview prepared and DO NOT BE nervous. In my case, back in 2017 my J1 visa expired on June 30. However, based on the terms of the J1 I knew I had 1 month 'grace period' to leave the country (US). So that means I had until July 29 to leave. Well, I got married on June 28, 2017 and submitted our AOS application on July 18, 2019. Everything went according to the regular USCIS process; I got EAD on time, renewed my SSN, and drivers' license and even got a job all in the same week of Oct 5 2017. So fret not.

            In most cases once you have submitted documents during the time you were 'in status' that means exactly what it is you were in status when you applied, but just now with pending documents, and awaiting the interview. The outcome of the interview, depends exactly on your attitude and preparation. Our interview was a breeze, NO Hiccups and I am praying for the same for you. It is natural at this stage to over think and worry but try not to do anything queer as in canceling your interview, if that is your choice, it will only set you back and make the process longer and perhaps even more complicated. All the best.
            July 18, 2017: Priority Date-Submitted-I130, I131, I485, I864, I765 to Chicago Lockbox
            August 15, 2017: Biometrics -Field Office-Kendall, Florida
            October 5, 2017: EAD received
            June 21, 2018: EAD Renewal Request received by USCIS
            July 5, 2018: Interview Date I797C notice received
            July 31, 2018: Interview date-Kendall, Florida
            July 31, 2018: Interview success: Immediate, ON THE SPOT, I485 approval
            Aug. 1, 2018: I130 approved
            Aug 3, 2018: Card is mailed to me (1485)
            Aug 8, 2018: GC in hand

            Comment


            • #7
              OP: How long was it between when your B2 status expired and when you filed I-485? Because if it was less than 180 days, then 245(k) applies, and you don't have to worry about any of this.

              This is my personal opinion and is not to be construed as legal advice.

              Comment


              • #8
                Originally posted by conti View Post

                Thanks for the reply, for Q2; you are talking about the Stipulation of removal, you have to apply (stipulation of removal) to ICE before USCIS adjustment of status, if the ICE accepted, then you wont be in removal proceeding and CIS will adjust your status ....but these days it is impossible, as ICE will reject the case and you would have to appear and Motion the Court, opposing counsel would not stipulate. USCIS will not have jurisdiction to determine an I-485 while you are in removal.
                No what I am saying is according to that lawyer i quoted the USCIS will NOT approve your AOS as long as you have a pending asylum claim, that you have to withdraw your asylum to allow USCIS to rule on your AOS.

                Comment


                • #9
                  Originally posted by azblk View Post

                  No what I am saying is according to that lawyer i quoted the USCIS will NOT approve your AOS as long as you have a pending asylum claim, that you have to withdraw your asylum to allow USCIS to rule on your AOS.
                  I understand your point now and I wish I will receive GC on the same day. Just pray for me!

                  Comment


                  • #10
                    Originally posted by newacct View Post
                    OP: How long was it between when your B2 status expired and when you filed I-485? Because if it was less than 180 days, then 245(k) applies, and you don't have to worry about any of this.
                    No, its gap greater than 180days, so, it will not work however, if CIS consider 'technical violation' due to inaction of DHS, i will be good Just pray for me that my attorney will proof them...

                    Comment


                    • #11
                      Originally posted by Hotaru-Grace View Post


                      NEVER EVER CANCEL your interview. I think your wait has turned into undue stress and excessive researching. Rather than thinking of the ways that USCIS might deny your case, think of the asset that you will be to the country once you have your GREEN CARD. Evidently you sent in your documents before your initial visa and asylum doc expired. So that in itself is PERFECT. Exhale and go to the interview prepared and DO NOT BE nervous. In my case, back in 2017 my J1 visa expired on June 30. However, based on the terms of the J1 I knew I had 1 month 'grace period' to leave the country (US). So that means I had until July 29 to leave. Well, I got married on June 28, 2017 and submitted our AOS application on July 18, 2019. Everything went according to the regular USCIS process; I got EAD on time, renewed my SSN, and drivers' license and even got a job all in the same week of Oct 5 2017. So fret not.

                      In most cases once you have submitted documents during the time you were 'in status' that means exactly what it is you were in status when you applied, but just now with pending documents, and awaiting the interview. The outcome of the interview, depends exactly on your attitude and preparation. Our interview was a breeze, NO Hiccups and I am praying for the same for you. It is natural at this stage to over think and worry but try not to do anything queer as in canceling your interview, if that is your choice, it will only set you back and make the process longer and perhaps even more complicated. All the best.
                      Thank you for given a positive hope and energy which really helped me, I wish and pray, I will receive the GC same day.

                      Comment

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