Difficult Situation - Any insight would be greatly appreciated!

[245iExpert 0]

Here are the info in short -

• AOS application (I-130, I-485, etc) submitted
• AOS approved and interviewed at the end of 1997
• Came into the US, got Green Card
• Lived aboard for education purposes till 2002
• While entering the US, Green Card was confiscated due to over stay while aboard
• Was still let back into the US on visitor's visa
• Step father came back a month later and submitted another package for AOS
• AOS was eventually denied approximately 4 years later
• Reason for denial = petitioner did not reside within the US at the time of application
• We left this situation alone; since at that time, we did not think we had another alternative
• Worked for the same company for the next 4 years
• Due to a HR department audit, I was let go because I was unable to submit a current Employment Authorization
• Approached a lawyer once laid off and was told we can reapply
• The bases of the application was to include - 245i eligibile and petitioner now resides in the US

The above, in short, was what has taken place. After speaking and retaining an attorney, the complete package was sent out to USCIS. Our first package was returned to us in full and the reason for rejection was because there are no available 'priority dates'.

After speaking to the attorney, I was told that with this type of situation (more complex then normal), often are rejected by the mail processing centers for the wrong reasons.

The next step was to resubmit the application, but this time, he will address it to a supervisor in a specially envelope.

After waiting, we got another rejection notice in the mail today. The reason for rejection is the SAME as it was before, no available 'priority dates'.

What might be the problem here?

Here are a couple of answers to some questions you may have while reading this -

• Original application date was in 1997, before April 30th, 2001
• We have sufficient evidence that I was in the US prior to or on December 20th, 2000
• I have applied once and once only for AOS - outcome = approved
• I have NOT used the 245i in the past
• I have no criminal background
• etc.......please ask and I will supply it.......

So, my question is - are the processing centers just not taking their time to review this application? According to three different attorneys that belong to different law firms, we should have NO PROBLEMs at all from USCIS.

Any insight?

Thanks!

[Krikit 1,164]

Which category visa did you arrive here on?

[245iExpert 0]

Which category visa did you arrive here on?

Honestly, since it's been so many years ago, I lost the slip they gave you at the airport. But since I have a UK passport, I was let in on a visitor's visa.

[JimVaPhuong 4,863]

Which category visa did you arrive here on?

Honestly, since it's been so many years ago, I lost the slip they gave you at the airport. But since I have a UK passport, I was let in on a visitor's visa.

Krikit is asking under what basis was the original I-130 filed? Immediate relative? Family preference?

[Boiler 45,516]

I think you need to speak to another lawyer.

I do not claim to be an expert, but

While entering the US, Green Card was confiscated due to over stay while aboard

Was still let back into the US on visitor's visa

The first, your status can only be taken away by an immigration judge. Sounds like you accepted it, so we can ignore everything before.

So you overstayed you visitors visa (VWP I am guessing) I do not believe you are eligible to adjust in country, you would need to leave and will trigger a 10 year ban.

[christeen 966]

Was your first green card based on a family member petitioning for you to come here?? Or was it work based???

[canadian_wife 1,822]

I'm a bit confused, you received the green card correct? Then you left for education purposes? Were you out of the US after the green card was issued for longer than 1 year? If so, did you obtain a re-entry permit to enter the US again?

[245iExpert 0]

I think you need to speak to another lawyer.

I do not claim to be an expert, but

While entering the US, Green Card was confiscated due to over stay while aboard

Was still let back into the US on visitor's visa

The first, your status can only be taken away by an immigration judge. Sounds like you accepted it, so we can ignore everything before.

So you overstayed you visitors visa (VWP I am guessing) I do not believe you are eligible to adjust in country, you would need to leave and will trigger a 10 year ban.

Yes, regardless what happened in the past that caused the loss of my green card is irrelevant at this time as it cannot be reversed (at least to my knowledge). The overstay issue would normally apply, but since I have been grandfathered in under 245i, I am not subjected to the 3/10 bar.

Was your first green card based on a family member petitioning for you to come here?? Or was it work based???

Immediate relative petition - American Born Citizen

Step-father is an American Born Citizen

I'm a bit confused, you received the green card correct? Then you left for education purposes? Were you out of the US after the green card was issued for longer than 1 year? If so, did you obtain a re-entry permit to enter the US again?

That was the problem. To make a long story short, the re-entry permit (travel permit / white card) was applied for, but due to different circumstances at hand, a break down in the mail system caused a lack of communication. Again, we have been advised to move forward with our AOS application and not to worry about what had happened in the past.

My questions will really pertain to anyone that might have had experience in dealing with 245i.

[canadian_wife 1,822]

Well, you asked if anyone had questions then don't answer them? I'm trying to help. I think you've already adjusted status with 245i then you left - and I'm asking about the re-entry permit. If one was not granted then you forfeitted the green card, is that not correct?

[245iExpert 0]

Well, you asked if anyone had questions then don't answer them? I'm trying to help. I think you've already adjusted status with 245i then you left - and I'm asking about the re-entry permit. If one was not granted then you forfeitted the green card, is that not correct?

Well, the point at hand isn't about what happened in the past and from what I have been told by legal counsel that what we are doing is the fastest way. With that said, that's the reason why I didn't answer your original question.

What makes you think that I've already adjusted status using the 245i? Honestly, I've done a lot of research on this and from everything I've read and from speaking with my attorney, it appears clearly that I adjusted status without using 245i. There was some notion that because I was granted AOS in 1997, that the 245i would be void, but I have since found a few sites with information that proves otherwise.

Effectively, forfeiting was the original reason for the lose of my permanent resident status in 2004. I re-entry permit was applied for, but no, it was never granted.

A simple time line would be -

1. 1997 AOS approved
2. Entered the US for the first time in 1998
3. Due to academics overseas, I only came home to the US on vacations (twice a year)
4. Re-entry permit applied for and received each time
5. Re-entry permit applied for again for 2004, but the package never arrived
6. Came in the US in 2004, was forced to forfeit my Green Card at the airport

I think that should sum up what you were asking. If there's something that's unclear, again, please let me know. It's been so long and so much info out there that I also have to remember everything as I go along.

[canadian_wife 1,822]

You have a very difficult situation, it seems like there has been a lot going on in your case. I don't think USCIS is simply dismissing your case, I'm just trying to sort through your ordeal and try and offer insight. And I truly think what did happen in the past is relevant today. There is a reason why you aren't getting what you want, you need to figure out what that is

Good luck.

Edited September 23, 2009 by canadian_wife

[Minya's wife 24]

Well, you asked if anyone had questions then don't answer them? I'm trying to help. I think you've already adjusted status with 245i then you left - and I'm asking about the re-entry permit. If one was not granted then you forfeitted the green card, is that not correct?

Well, the point at hand isn't about what happened in the past and from what I have been told by legal counsel that what we are doing is the fastest way. With that said, that's the reason why I didn't answer your original question.

What makes you think that I've already adjusted status using the 245i? Honestly, I've done a lot of research on this and from everything I've read and from speaking with my attorney, it appears clearly that I adjusted status without using 245i. There was some notion that because I was granted AOS in 1997, that the 245i would be void, but I have since found a few sites with information that proves otherwise.

Effectively, forfeiting was the original reason for the lose of my permanent resident status in 2004. I re-entry permit was applied for, but no, it was never granted.

A simple time line would be -

1. 1997 AOS approved
2. Entered the US for the first time in 1998
3. Due to academics overseas, I only came home to the US on vacations (twice a year)
4. Re-entry permit applied for and received each time
5. Re-entry permit applied for again for 2004, but the package never arrived
6. Came in the US in 2004, was forced to forfeit my Green Card at the airport

I think that should sum up what you were asking. If there's something that's unclear, again, please let me know. It's been so long and so much info out there that I also have to remember everything as I go along.

Even if the case under which the person ultimately obtains the Green Card involves a completely different petition from the one that was filed earlier, the applicant can still benefit from that earlier filing. A particular person - not an application or petition - is 245(i) eligible. This means that if a labor certification application or an immigrant petition is filed on or before April 30, 2001, then even if the alien eventually adjusts status based upon a different petition filed after April 30, 2001, s/he is still eligible for 245(i) adjustment.

I think this is what you're referring to, when you said you found info online to prove otherwise....

But you only adjusted status once in 1997...based upon the I-130 your stepfather filed for you, right? It is that green-card that you forfeited because you stayed longer than allowed and did not have a re-entry permit, right? Forfeit, was not the reason for the loss of your residency...that was because you failed to maintain you US residency by living overseas for longer than 6 months and not having an approved re-entry permit when you were trying to come back (in 2004). Because of that, you lost your residency.

I'm not sure what basis you are using to file AOS again this time? You were eligible once, your AOS was approved and you technically 'mis-used' it by staying out of the country for too long. Your second AOS application, that was filed and denied 4 year later, falls outside the time-frame allowing you to use the 245(i) adjustment.

[245iExpert 0]

I think this is what you're referring to, when you said you found info online to prove otherwise....

But you only adjusted status once in 1997...based upon the I-130 your stepfather filed for you, right? It is that green-card that you forfeited because you stayed longer than allowed and did not have a re-entry permit, right? Forfeit, was not the reason for the loss of your residency...that was because you failed to maintain you US residency by living overseas for longer than 6 months and not having an approved re-entry permit when you were trying to come back (in 2004). Because of that, you lost your residency.

I'm not sure what basis you are using to file AOS again this time? You were eligible once, your AOS was approved and you technically 'mis-used' it by staying out of the country for too long. Your second AOS application, that was filed and denied 4 year later, falls outside the time-frame allowing you to use the 245(i) adjustment.

Part one from what you said are all accurate. The only question I have would be the forfeit comment you made. I would assume it's also considered as forfeit since I was overseas longer then six month without a re-entry permit. If I remember correctly, the USCIS considers a status forfeited if you do not apply for a re-entry permit when staying overseas for over six month. But, all in all, yes, that's why I lost my first AOS.

As for what basis I am filing under this time, I am again using my step-father, as my mother and him are still married. When we filed in 2004, we did NOT use or bring up 245i for the simple reason that we did not know about it. We did it without the help of an attorney. The reason for denial in 2004 was not due to any type of eligibility issue as far as aging out, etc. It was denied at the time because my step-father (the petitioner) did not live in the US, he was still overseas at the time.

Now, years later and I am well over 21. I was faced with all your regular problems of applying for AOS. We consulted a few attorneys and all have said that I qualify to use 245i. Now, the question again isn't if I am eligible or not, rather if the reason why the packet is being reject is due to lack of experience from the clerks of the USCIS mail room.

[Usui Takumi 1,562]

What form are you specifically filing? To get the rejection your getting it sounds like you were submitting an I140?

[Usui Takumi 1,562]

Just thinking on it some more, do you think they are not seeing your 245I when they open up your file? Without it obviously your not eligible for a green card until something like 2015 hence the replies your getting. I too have had problems with the mail room - 1 application was lost for 4 months before showing up at my door all torn and tattered. A second was misread and set to the lockbox when it was for a K1 at CSC and I had been very specific about what it was in my cover letter (in fact I basically used the template here). That application was then rejected instead of returned to CSC.