After Interview RFE help!!!

[ninjajadon 0]

Completed my AOS interview on Wednesday December 28. Today I received a letter requesting "initial evidence" about two things.

1. I over-stayed my B1/B2 visa and they want evidence that i was granted an extension (I never applied for one). At the time of my arrival i was a minor (16) and the decision to stay here was not mine, it was my mother who was a LPR and now is a Citizen. She did file the I-130 in 2007 which was approved in 2009.

2. According to my local USCIS i do not qualify for AOS because at the time that my mom became a citizen i was 22. However the Child Status Protection Act list my 'immigration age' at 19yrs old. I did the "Opt-Out" before and during the filing of my I-130 and it was accepted during the initial review of my case so i was surprised to see that as an issue today. I will just send documents reminding them of the CSPA and the Opt-Out.

What can i do? It is also worth mentioning that my dad is a Citizen, he has been one for over 10yrs but he refused to do my AOS when i came here because of past marital issues with my mom (issues that i know very little about).

Thanks in advance for your response.

[VanessaTony 3,567]

On what basis are you applying to AOS? Based on the I-130 your mothers filed?

Once you turned 18 your choice to stay illegally was yours, not your mothers. Had you left before you turned 18 and 6 months you could have had your mother petition for you and been here legally.

1. From my understanding it is not possible to adjust status from an expired visa unless doing so based on marriage to a USC.

On reading the CSPA to be eligible you have to apply for LPR within a year of a visa number becoming available. It doesn't appear you did this though your timeline isn't exactly exact..

2. The other thing I see here: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=1f0c0a5659083210VgnVCM100000082ca60aRCRD&vgnextchannel=1f0c0a5659083210VgnVCM100000082ca60aRCRD is that your age didn't freeze. The page states:

If the petition (Form I-130) was filed by a permanent resident parent and the parent naturalizes before the beneficiary turns 21, the beneficiary’s age “freezes” on the date the petitioner naturalized."

According to what you said your mother naturalized after you turned 22 so your age didn't freeze.

I see your "opt-out" kept you in the second preference rather than upgrading to first preference. Aside from that I don't understand how this helps you.

[VanessaTony 3,567]

Re 1: See here: http://www.uscis.gov/files/form/i-485instr.pdf page 2, 10, F, 1 states unmarried child under 21 of a USC is exempt from having to maintain status. But you aren't under 21, you didn't maintain your status.

Have you spoken with a lawyer?

**Edit - it might help us if you list your timeline. Such as:

B'day: ##/##/##

Arrived in US on B2: ##/##/##

B2 expired: ##/##/##

Mother became USC: ##/##/##

I-130 filed: ##/##/2007

I-130 approved: ##/##/2009

I-485 filed: ##/##/##

Edited December 31, 2011 by Vanessa&Tony

[ceadsearc 516]

I believe you can adjust status from an expired visa if you are an immediate relative of a USC which also includes a parent of a USC or a minor child of a USC. This doesn't seem to be the case here, though.

I agree with Vanessa&Tony that a completed, updated timeline will make it easier for others to see exactly what transpired and give better advice.

[ninjajadon 0]

B'day: Nov/1988

Arrived in US on B2: Aug/2005

B2 expired: Aug/2012

Mother became USC: Aug/2011

I-130 filed: May/2007

I-130 approved: June/2009

I-485 filed: Oct/2012

I did talk to a lawyer when i was initially filing the AOS and the 'Opt-Out' was sent and accepted by USCIS at that time. Had I not been qualified for AOS the Lawyer assured me that USCIS would not begin processing of my case, they would instead, return my document and inform me that I was ineligible.

I know the decision to remain here after age 18 was mine, but there was no one in my home country to return to, as I said both my mom and my dad (a citizen for over 10yrs) reside in the U.S.A.

[VanessaTony 3,567]

I understand that you had no-one to return to but USCIS doesn't care. You didn't belong in the US and shouldn't have remained here (is how they see it). How did your parents get USC and why weren't you included?

There is something wrong with your dates.

1. Firstly we're Dec 2011 and yet you claim you filed AOS in 2012 so I'll assume that's Oct 2011? Even if it was Oct 2010 you didn't apply within a year like you're supposed to but maybe that opt-out thing counts...

2. Re your B2, I should have specified, when did the I-94 date on your last entry expire? Based on your entry date it would have been Feb 2006.

So it looks like you didn't file within a year of your I-130 being approved like the link I previous provided stated you needed to. You also have an expired B2 and as you weren't processed as an immediate relative (because you were older than 21) the fact your B2 I-94 was expired usually means you're ineligible for AOS.

Long story short - you're not eligible for CSPA because you aren't a child. You were older than 21 when your mother naturalized and your age was therefore not frozen (per the link I previously provided).

Your lawyer was wrong that they would immediately reject the application. You had an approved I-130 so they process the I-485 based on the I-130. This is why you are now issued with the RFE's... because further investigation into your case has shown you're not eligible to AOS.

Regarding what they've asked for, you didn't extend your B2 I-94 so you can't provide that. You're hoping sending the CSPA rules will help you but they can't because you're not considered a child because your mother didn't naturalise before you turned 21. It doens't look good for you.

Edited December 31, 2011 by Vanessa&Tony