I-485 Denied ( URGENT HELP REQUIRED)

[M.C. Tanwar 0]

Hello

My name is Moolchand Tanwar, i applied for GC got my I-140 Approved and few days back i got my I-485 Denial Notice. I here write the letter which i received from USCIS. Please go through the letter which i received and suggest me what should i do and where i can find a better help full attorney.

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DECISION ON APPLICATION FOR STATUS AS PERMANENT RESIDENT

Upon consideration, it is ordered that your I-485 be denied for the following reasons:

On February 4,2008, you filed an application to register permanent residence or Adjust status (form I-485) with USCIS (" the service") based upon an approved petition for Alien worker(I-40) with filed on your behalf by you employer, ABC COMPANY INC ( name not disclosed here) ( hereinafter as " the petitioner"). In doing so you sought to obtain an immigration benefit pursuant to section 245 of the immigration and nationality Act, as amended (the Act.)

On June 8, 2010, you appeared for an interview at the USCIS netwark Field office in connection with your I-485 application.

Service records revealed that entered the United States on August 15, 1997 as a nonimmigrant B2 Visitor with permission to remain in the United States for a temporary period not exceed 6 months, February 14, 1998. At the time of the filing of your form I-485, you were no longer in a lawful status. Therefore, you must satisfy the requirement under Section 245(i) of the Immigration and Nationality Act (INA) in order to adjust status in the United States to that of a lawful permanent resident.

Section 245(i) of INA further states, in Pertinent part that:

(1) Notwithstanding the provisions of subsections (a) and © of this section, an alien physically present in the United States----

(A)WHO-----

(i) entered the United States without inspection: or

(ii) is within one if the classed enumerated in subsection © of this section:

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a Visa under section 203(d) of---------

(i) a petition for classification under section 204 that filed with the Attorney general on or before April 30, 2001; or

(ii)an application for a labor certification under section 212(a)(5)(A) that filed pursuant to the regulations of the secretary of Labor on or before such date; and

© who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically presented in the united states on the date of the enactment of the LIFE Act Amendments of 2000;

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence, The Attorney General may accept such application only the alien remits with such application a sun equaling $1,000 as of the date of receipt of the application.....

8 C.F.R Section 245.10(n) states in pertinent part that:

(n) Evidentiary requirement to demonstrate physical presence on December 21,2000.

(1) Unless the qualifying immigrant visa petition or application for labor certification was filed on or before January 14, 1998, a principal grandfathered alien must establish that he or she was physically present in the United States on December 21,2000 to the eligible to apply to adjust status under Section 245(i) of the Act. if no one document establishes the alien's physical presence on December 21,2000; he or she may submit several documents establishing his or her physical presence in the United States prior to and after December 21, 2000.

Section 245(i) of the INA provides that certain individuals may still adjust status despite the ground of ineligibility listed in section 245© of the INA, if the priority of their underlying immigrant visa petition is on or before April 30, 2001 and they can establish physical presence in the United States on the December 21, 2000.

As evidence of you eligibility under section 245(i), you claimed that you were grandfathered by the approved I-140 petition filed on your behalf by ABC COMPANY INC ( name is not disclosed here) the petitioner which has a priority date of April 18, 2001 under section 245(i) of the INA. As said petition was filed after January 14, 1998, you were required to provide evidence that you were physically presented in the U.S. before December 21, 2000.

In response to a Request for further Evidence (REF) issued by the officer on your Interview day on 6/8/2010, you appeared at the USCIS network Field office on 7/9/2010 as scheduled. You submitted the following document:

(1) Supplement A to the Form I-485 along with the $1000 penalty fee pursuant to Section 245(i) of the INA;

(2) An employment letter from a ( name not disclosed here) the president of ABC COMPANY INC ( name not disclosed here)

(3) Your attorney's statement regarding the employment portability under the American Competitiveness in the 21st Century Act;

(4) A Letter from an ( Person name not disclosed here) testifying your tenancy from 1/2000-12/2003 as the proof that you were physically presented in the United States around December 21, 2000.

Having reviewed the evidence you submitted, the service determines that you failed to establish that you were physically presented in the United States on December 21, 2000.

Thus, the service concludes that, lacking any evidence of Physical presence, you are statutory ineligible to adjust status under Section 2459i) if the Act. Therefore, your I-485 Application to Register Permanent Residence or Adjust Status is Denied.

USCIS is not initiating removal procedures against you at this time. The decision resulting in the denial of form I-485 leaves you without lawful immigration status and you are presenting the United States in violation of the law. You are required to depart the United States within thirty days fro the date of this decision, or be subject to removal proceedings. Remaining in the United States beyond this time will also affect your ability to return to the Unites States, Also as of the date of this notice, any employment authorization granted based on the pendency of your application is hereby revoked.

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Please suggest what should i do now. Can i appeal for it, If i appeal how long USCIS to take for decision. Will i ever get my GC approved.

I am really very depressed and tensed please help.

Thanks

[belinda63 3,041]

So you came on a tourist visa and overstayed and now you are trying to have an employer sponsor you for an immigrant visa and PR status from within the US? A time line would be a big help.

[Myopia 93]

Other members will chime in to help you with how to file a motion for your case.

The problem seems to be that USCIS did not believe that the proof you offered regarding being in the US on the dates needed was sufficient.

The letter stated

if no one document establishes the alien's physical presence on December 21,2000; he or she may submit several documents establishing his or her physical presence in the United States prior to and after December 21, 2000.

You only had one letter from, Im assuming a landlord. Don't you have anything else? Records from a doctor or hospital. Several affidavits from people who knew you at that time and can affirm you were in the US?

If you worked, did you have pay slips? Did you have a cell phone or utility bill or letter from utilities confirming that you were in the US at those times?

There are loads of things that could have been provided.

What has your lawyer said?

Edited March 24, 2011 by Myopia

[Little_My 464]

Having reviewed the evidence you submitted, the service determines that you failed to establish that you were physically presented in the United States on December 21, 2000.

Thus, the service concludes that, lacking any evidence of Physical presence, you are statutory ineligible to adjust status under Section 2459i) if the Act. Therefore, your I-485 Application to Register Permanent Residence or Adjust Status is Denied.

This is why they denied you - according to them, you did not provide adequate proof that you were in fact in the US on December 21st, 2001. From what i know, only denied AOS from VWP has no grounds for appeal - but I am not sure. Someone who knows better will probably jump in soon and give you more information on that.

[LIFE'SJOURNEY 970]

No the question is were you physically present in the US or on US territory prior to or on 12/21/2000.

Edited March 24, 2011 by LIFE'SJOURNEY

[Myopia 93]

So you came on a tourist visa and overstayed and now you are trying to have an employer sponsor you for an immigrant visa and PR status from within the US? A time line would be a big help.

He is filing under section 245 which is a specific act that President Clinton enacted that allowed for certain immigrants to adjust their status. He is allowed to do this as he had an approved labor certification that was filed before the date of the act being enacted.

[Myopia 93]

Having reviewed the evidence you submitted, the service determines that you failed to establish that you were physically presented in the United States on December 21, 2000.

Thus, the service concludes that, lacking any evidence of Physical presence, you are statutory ineligible to adjust status under Section 2459i) if the Act. Therefore, your I-485 Application to Register Permanent Residence or Adjust Status is Denied.

This is why they denied you - according to them, you did not provide adequate proof that you were in fact in the US on December 21st, 2001. From what i know, only denied AOS from VWP has no grounds for appeal - but I am not sure. Someone who knows better will probably jump in soon and give you more information on that.

He can appeal once he is in removal proceedings but Im thinking he doesnt want to wait that long.

From what I remember there are 2 ways to deal with this. Either he can write a letter to the District Officer or he can file a I-290b which is this

I-290b

[Haarp425 26]

You will need this:

Q14. What kind of proof can I submit with my Section 245(i) adjustment-of-status application to demonstrate that I was in the United States on December 21, 2000?

A14. Government-issued documents are preferable as proof of physical presence, and INS and the Executive Office for Immigration Review (EOIR) documents documents have precedence over the records of other agencies (see Q15 and Q16). If there are no government-issued documents that demonstrate your physical presence in the United States on December 21, 2000, INS will accept and evaluate non-government issued documents as well (see Q17). You may submit photocopies of government-issued documents as well as non-government-issued documents that establish your physical presence.

You may have a single document that may suffice to establish your physical presence on December 21, 2000. But if you do not possess documentation that contains the exact date of December 21, 2000, you may need to submit several documents to prove that you were physically present in the United States prior to, as well as after December 21, 2000.

INS will evaluate all evidence on a case-by-case basis and will not accept a personal affidavit attesting to your physical presence on December 21, 2000, without requiring an interview or additional evidence to validate the affidavit.

Q15. Specifically, what kind of INS documentation can I submit to prove that I was physically present in the United States on December 21, 2000?

A15. Examples of acceptable INS documentation include, but are not limited to:

Photocopy of the Form I-94, Arrival-Departure Record, issued upon your arrival in the United States;

Photocopy of Form I-862, Notice to Appear;

Photocopy of the Form I-122, Notice to Applicant for Admission Detained for Hearing before Immigration Judge, issued by INS on or prior to December 21, 2000, placing you in exclusion proceedings;

Photocopy of the Form I-221, Order to Show Cause, issued by INS on or prior to December 21, 2000, placing you in deportation proceedings;

Photocopy of any application or petition for an immigration benefit filed by you or on your behalf on or prior to December 21, 2000, which establishes your presence in the United States, or your INS fee receipt for the application or petition.

If you don’t have the document(s) but believe that a copy is already contained in your INS file, you may submit a statement as to the name and location of the issuing federal, state, or local government agency, the type of document and the date on which it was issued. When processing your case, INS will look in your INS file to find the document(s) you specify. You do not need to file a Freedom of Information Act (FOIA) request to obtain the actual document(s) from your INS file.

Q16. Specifically, what kind of other government documentation can I submit to prove that I was physically present in the United States on December 21, 2000?

A16. Examples of such other government documentation include, but are not limited to:

State driver’s license;

State identification card;

County or municipal hospital record;

Public college or public school transcript;

Income tax records;

Certified copy of a federal, state or local governmental record which was created on or prior to December 21, 2000, and filed by you or on your behalf to seek a benefit from that federal, state or local governmental agency;

Certified copy of a federal, state or local governmental record which was created on or prior to December 21, 2000, that establishes that you submitted an income tax return, property tax payment, or similar submission or payment to that federal, state or local governmental agency;

Your transcript from a private or religious school—that is registered with, or approved or licensed by, appropriate state or local authorities, accredited by the state or regional accrediting body, or by the appropriate private school association—or maintains enrollment records in accordance with state or local requirements or standards.

You will need to obtain the document(s) from other government (non-INS) agencies and submit photocopies of those records.

Q17. Specifically, what kind of non-government documentation can I submit to prove that I was physically in the United States on December 21, 2000?

A17. Examples of such non-government documentation include, but are not limited to:

School records;

Rental receipts;

Utility bill receipts;

Any other dated receipts;

Personal checks written by the applicant bearing a bank cancellation stamp;

Employment records, including pay stubs;

Credit card statements showing the dates of purchase, payment, or other transaction;

Certified copies of records maintained by organizations chartered by the Federal or State government, such as public utilities, accredited private and religious schools, and banks;

If you established that you were part of a family unit living in the United States, documents proving the presence of another member of your family unit; and

If you have ongoing correspondence or other interaction with INS, a list of the types and dates of such correspondence or other contact that you know are to be contained in INS records.

Such non-government documentation must indicate your name, have been dated at the time it was issued, and bear the seal or signature of the issuing authority (if the

documentation is normally signed or sealed), be issued on letterhead stationery, or be otherwise authenticated.

Source: www.uscis.gov/files/pressrelease/Section245ProvisionLIFEAct_032301.pdf