Denied, pls advise. I-130/I-485/I-765

[Schuller 0]

Hi I am submitting this request for advice for a friend. Please see following details:

Petitioner:

• Permanent Resident as of Feb-2008 with 10 year validity (Green Card Holder)
• currently residing in US
• Permanent residency attained from parents citizenship

Beneficiery:

• Chinese Citizen
• entered US in end of May 2008, on Business visa (B1) w/ multiple entry; still in US on this visa
• 90 day validity on B1 visa for each entry stamped at port of entry
• Married Petitioner in US in June 2008
• currently living at same address in US as Petitioner

Forms Filed and Result

• I-130, I-485, I-176, all sent to Chicago at PO box 805887
• all recieved by USCIS on end of July 2008
• for all 3 forms filled (I-130, I-485, I-176) sent a I-797C, Notice of Action with "Notice Type: Rejection Notice" Following are reasons for rejection:
• I-130:
  The application/petition you filed along with any fee you submitted is being returned to you fo the following reason(s):
  X Based on the information you provided, a visa number does not appear to be available for you immibration category at this time. Please file your Form I-130 at the BCIS Service Center with jurisdiction over you place of residence.

• I-485:
  The application/petition you filed along with any fee you submitted is being returned to you fo the following reason(s):
  X Based on the information you provided, your priority date does not appear to be current. Please refer to the Visa Bulletin published monthly by the US department of State, Bureau of Consular Affairs to determine the availablity of immigrant visa numbers in your immigration category. When your priority date is earlier than the correlating cut-off date listed in the current Visa Bulletin, you will then be eligible to submit you I-485 application.
  You may access the State Department Visa Bulletin at the State Department's Website at www.travel.state.gov/visa_bulletin.html, or you may call the Department of State Visa Office at 202-663-1541, to learn which priority dates are currently being procesed.

• I-765
  ---basicly says since I-485 was filed concurrently and was denied, this is also denied.

Requested Advice

• I read in the visajourney guides that I-130 should be submitted when the beneficiery is not in US. Is this the reason for denial? It seems odd that their advice is: "... please file you form I-130 at the BCIS Service Center with jurisdiction over your place of residence". Isn't the correct place to file all I-130 just the Chicago location for every petioner residing in US?
• For I-485, i think I understand the priority date/visa bulletin a little... This site helped: http://www.immigration.com/newsletter/prio...es-explain.html Does following sound correct?: When a petitioner is a Permanent Resident (not US citizen) the beneficiery will come to US with their approved I-130 and then wait in US for their priorty date to be earlier than Visa Bulletin cut-off date and apply for I-485 while in US.

Close Note:

• They are both seeing a lawyer this Tuesday (same lawyer who helped submitt all the forms). He said he never worked a case were beneficiery was already in US with B1 visa! maybe they need a more experienced one...
• Beneficiery is in a bit of tight spot, he his passport stamp says he must leave US by Aug30th!!!

Thanks for any advice you can lend in this situation.

[Schuller 0]

You may access the State Department Visa Bulletin at the State Department's Website at www.travel.state.gov/visa_bulletin.html, or you may call the Department of State Visa Office at 202-663-1541, to learn which priority dates are currently being procesed.[/indent]

forgot to mention:

Big suprise the link they send in the Notice of Action doesn't work. I managed to google their website and find this...

http://travel.state.gov/visa/frvi/bulletin...letin_4328.html

So silly how they can send an official document to probably hundreds of people and not have enough attention to detail to check a internet address they post!

[Dakine 26]

Looks like they were trying to adjust status withe the petitioner being a LPR. Only US citizens can use form I-485!

They can do a I-130 but there is LONG time wait.

Fastest will be to wait until petitoner gets USC [minimum 5 years] and then file. Takes about another year.

Edited August 24, 2008 by Haole

[pushbrk 12,898]

Looks like they were trying to adjust status withe the petitioner being a LPR. Only US citizens can use form I-485!

They can do a I-130 but there is LONG time wait.

Exactly correct. The Petitioner must be a US Citizen for this to work. The Chinese Citizen may remain as long as the initially granted stay. In the mean time the LPR may file the I-130 only and upgrade it when they become a citizen. The Chinese spouse must find another way to remain in the US legally or leave.

By my read, (arrived end of may or a 90 day stay) the Chinese spouse must leave the US virtually immediately to avoid an over stay. Filing the petitions may well get them flagged and prevented from any further entries.

Also, the marriage appears to have taken place within 30 days of entry. That's fine but even if the petitioner was a citizen there would have been visa fraud issues raised. This foreign spouse needs to get on the next plane out of the US.

Edited August 24, 2008 by pushbrk

[JanaknJanet 0]

I am sorry for your situation...

It seems that you are thinking that the person might be assuming that since he/she is married to a PR.. they can get a immediate visa..... without waiting for number..

Only CITIZENS are able to file and be processed without waiting for a visa number. Until you friend becomes a Citizen.. he/she will need to wait till the PR visa number for spouse comes before she/he can get his/her PR..

USCIS permanent resident info

Can my relative wait in the United States until he or she

can become a permanent resident?

No. Your relative’s approved petition gives your relative a place in

line among those waiting to immigrate. It does not give permission

for your relative to live or work in the United States while he or

she is waiting to apply for permanent residence. If he or she enters

or stays without legal status, it will affect his or her eligibility to

become a permanent resident upon reaching his or her place in line

for issuance of a visa

We will mail you a receipt confirming that we have received your

petition. If your petition is incomplete, we may have to reject it, or

we may ask you for more evidence or information, which will delay

processing. Please send all required papers the first time to

avoid delay.

We will notify you when we make a decision. Petitions with long

wait times may not be approved immediately. (See our website for

processing times for I-130 petitions.) Normally, if we approve the

petition, we send it to the U.S. Department of State’s National Visa

Center (NVC). When your relative’s place in line permits issuance of a

visa number, the NVC will notify you and your relative, inviting him or

her and qualifying dependents to apply for immigrant visas. You can

find more information about immigrant visa processing from the U.S.

Department of State’s website at www.state.gov.

What if I filed a petition for a relative when I was a

permanent resident, but I am now a U.S. citizen?

If you become a U.S. citizen while your relative is waiting for a visa,

you can upgrade your relative’s visa classification and advance the

processing of that petition by notifying the appropriate agency of

your naturalization. When you are a U.S. citizen, your spouse and

any unmarried children under age 21 will have visas immediately

available to them.

• If you become a U.S. citizen after your Form I-130 petition

is already approved and it has been forwarded to the U.S.

Department of State’s National Visa Center (NVC), you should

notify the NVC that you have become a U.S. citizen. Requests

to upgrade petitions due to the naturalization of the petitioner

should be sent to:

National Visa Center

32 Rochester Avenue

Portsmouth, NH 03801-2909

Please include a letter with information regarding your relative, a

copy of your Naturalization Certificate, and a copy of the petition

approval notice. Once the NVC is notified that the petitioner

has been naturalized, the NVC will immediately send the visa

information on your relative to the designated U.S. Embassy or

consulate abroad. To confirm that your approved petition has

been forwarded to the NVC, you can contact the NVC’s automated

record message system at 1-603-334-0700 and, with a

touchtone telephone, enter your USCIS receipt number.

• If you become a U.S. citizen and your relative’s petition has not

yet been approved by USCIS, you will need to notify the Service

Center where you filed your relative’s visa petition. You should

send the notification to the Service Center address located on

the receipt notice you received when you filed your Form I-130

petition. Please include a letter with information regarding your

relative a copy of your Naturalization Certificate, and a copy of

the petition receipt notice. Call Customer Service at 1-800-375-

5283 for additional assistance or if you are unsure about the

status or location of your petition.

• If your relative is your spouse and he or she has children who are

your natural children, stepchildren, or adopted children, and you

did not file separate petitions for them, you must file a separate

petition for each of them with evidence of your U.S. citizenship.

Please include a copy of the receipt notice for the original

petition.

How long will it take USCIS to process my petition?

Since processing time depends on a number of factors, it is difficult to

provide a timeframe. You can check our current processing times on

our website. Once you file a relative petition, we will post an updated

estimate of the processing time on the USCIS website.

USCIS propro info

(B) Section 203(a) covers aliens eligible for preferential consideration based on a familial relationship to a citizen or LPR of the U.S. Unlike the immediate relative petitions, the dependents (spouse and child(ren)) of a beneficiary of a preference petition receive derivative immigrant visa classification if they are accompanying or following to join the principal beneficiary. (“Accompanying” refers to a dependent who is immigrating concurrently with, or who has an immigrant visa issued within 6 months after, the principal alien’s admission or adjustment; “following to join” refers to an alien who is immigrating more than 6 months after the principal alien, but based on a relationship which existed at the time of the principal alien’s immigration, provided that relationship still exists at the time of the dependent’s application for admission to the United States.) The family-based preference classifications are:

• First preference under section 203(a)(1) includes the unmarried sons and daughters of United States citizens;

• Second preference under section 203(a)(2) includes the spouses, children, and unmarried sons and daughters of lawful permanent resident aliens;

Note 1: If a lawful permanent resident acquired a dependent prior to such LPR’s immigration or adjustment (the LPR had already married the spouse or the parent-child had been established), the dependent could qualify for a following to join visa classification and would not need a second preference petition or a second preference quota number.

I hope that this information helps..

[pushbrk 12,898]

I am sorry for your situation...

It seems that you are thinking that the person might be assuming that since he/she is married to a PR.. they can get a immediate visa..... without waiting for number..

Only CITIZENS are able to file and be processed without waiting for a visa number. Until you friend becomes a Citizen.. he/she will need to wait till the PR visa number for spouse comes before she/he can get his/her PR..

This was an attempt to adjust status, not a visa petition.

[JanaknJanet 0]

ok my apologies for wrong verbage... still fact of the matter.. he/she needs to be USC to file immediate AOS.. based on marriage..

[pushbrk 12,898]

ok my apologies for wrong verbage... still fact of the matter.. he/she needs to be USC to file immediate AOS.. based on marriage..

Absolutely, plus needs to leave the US immediately.