Approvable when filed I-130?

[godiego 1]

Hello all,

First of all I wanted to express my gratitude for this community's support of families going through the AOS process. I'm aware that my case is not typical and that not many in the forum have used 245i to adjust but I'm hoping someone out there has the knowledge to help me out.

My wife EWI as a child and is grandfathered as a derivative beneficiary under her mother's I-130. Her mother's I-130 was filed by her uncle (mother's brother)and we have a Form I-797 stating the application's priority date is April 30th, 2001. My wife's sister successfully adjusted trough marriage using her 245i benefits, so we have been feeling confident going through our own process. So far things have been smooth and we are scheduled for our interview soon but I have one last concern.

Recently I found out the her mother's original I-130 petition was denied due to lack of response to an RFE. It seems there was a misspelling of her mother's name and they requested further evidence of the sibling relationship. I do not know why the RFE was not replied to, everything was being handled by a lawyer and at that time my wife was unaware these documents would be crucial for her own AOS years later. We do not have the decision letter or a copy of the original I-130. We were able to track the lawyer who filed the forms but he is apparently out of the country right and won't be back before our interview. We are bringing with us her mother's and uncle's birth certificates and their respective translations to show the sibling relationship is legit, however we do not know if we are proving the application was "approvable when filed". This is what we found on the USCIS website regarding this issue:

"If the Petition Or Labor Certification Is Withdrawn, Denied Or Revoked. If you withdraw the petition or have been denied or revoked after approval by the former Immigration or Naturalization Service (INS) or by USCIS, you may still be grandfathered, depending on the reasons for the withdrawal, denial or revocation. It depends on whether a visa petition or labor certification was "approvable when filed." To remain eligible, the changed circumstances must relate to factors beyond your control rather than the merits of the petition at the time of filing."

Sorry for the long post, what I want to know is what I can do if at the interview I'm asked to prove that my wife is in fact grandfathered. Thank you for taking the time to read this post and good luck to all on your visa journeys.

[JimVaPhuong 4,863]

It depends. "Approvable when filed" means exactly that. They would have to determine if a satisfactory response to the RFE could have resulted in the petition being approved. If so, then the petition was approvable when it was filed. If not, then the petition was not approvable, and would not be eligible for 245(i). For what it's worth, they don't usually issue RFE's for petitions that don't otherwise appear to be approvable. They simply deny them.

A priority date of April 30, 2001? Wow! You got in just under the wire!

[godiego 1]

It depends. "Approvable when filed" means exactly that. They would have to determine if a satisfactory response to the RFE could have resulted in the petition being approved. If so, then the petition was approvable when it was filed. If not, then the petition was not approvable, and would not be eligible for 245(i). For what it's worth, they don't usually issue RFE's for petitions that don't otherwise appear to be approvable. They simply deny them.

A priority date of April 30, 2001? Wow! You got in just under the wire!

Thank you Jim! Yes we find it pretty incredible that's the priority date printed on the NOA. I suppose there is not much we can do at this point, if they decide to dig into her grandfathering we will take it from there. Thanks you for your response!