EAD and AP nightmare

[Beefheart 31]

Greetings all, I hope everyone is well and -- for those applying for AOS/EAD/AP specifically -- that not everyone is coming up against the same levels of frustration and helplessness as myself.

The following situation is mildly complicated, so please bear with me as I attempt to clearly explain my situation. Words cannot express how fed up I am with the almost constant barrage of hurdles and seemingly contradictory/inaccurate responses I have received from the USCIS regarding the (unsuccessful) processing of my EAD and AP.

I'd also like to ask that anyone responding only do so if they have any supportive or helpful advice; it is a waste of everyone's time to hear how I "should've filed sooner", or "filed all three applications concurrently", etc. No amount of hindsight or retrospective advice is going to alter the position I find myself in.

Over the past six-month period (give or take) I have filed for both my EAD and AP. Owing to current financial circumstances, my wife and I felt this the best route to navigate the marathon of adjustment of status, and eventual citizenship. I have also long been under the impression that filing for one's EAD and AP before their AOS is not, or at least should not be, problematic. How wrong could I have been. . .

EAD

After successfully completing my biometrics a little under three months ago, I assumed the issuance of my EAD to be a formality and nothing more than a case of waiting it out until my application was processed and approved. However, I received a letter yesterday which states that my application had been filed under a category reserved for an alien admitted as a K-3 nonimmigrant spouse. Furthermore, after a lot of far-from-helpful legalese, the letter states "Department of Homeland Security records indicate that on XX XX, 20XX, you were admitted to the United States as a K-1, nonimmigrant fiance or fiancee [...] records do not show that you made valid entry into the U.S. as a nonimmigrant spouse [...] Since you do not have K-3/K-4 status, you are not eligible for the benefit sought. After a review of the application and supporting documentation, it is concluded that you have not established eligibility for the benefit sought. Therefore, the application is denied.

My understanding is that I was denied because I supplied the incorrect alpha-numeric code in the 'Eligibility category' on the form (question 16). I used the code (a)(9) as, stupidly, I assumed that as I am married I would fall under this category (K-3 nonimmigrant spouse of a U.S. citizen), rather than as a K-1 (fiance). Also, as the instructions to the form state that you should only enter the K-1 category code of (a)(6) "if you are filing within 90 days from the date of entry", and that "Any EAD application other than for a replacement must be based on your pending application for adjustment under ©(9)", I again understood this to mean that I could not file under this category. It has been long over 90 days since my date of entry back in late 2014, and I am also not filing concurrently with an AOS. As the ©(9) category specifics state: "File Form I-765 with a copy of the receipt notice or other evidence that your Form I-485, Application for Permanent Residence or Adjust Status, is pending. You may file Form I-765 together with your Form I-48", how on earth could I use this cod, as I do not have a pending status for my AOS .So where does this leave me? I cannot find any other category code which even comes close to being relevant for my position.

Clearly, the USCIS processing department understood my situation as they so helpfully highlighted it in my rejection letter. If this is the case (which it is) then why couldn't they either amend my code (maybe not possible for legal reasons), or at the very least advise me as to which code satisfies my situation. I am at a loss as to which eligibility category I fall under.

Finally, the letter states " There is no appeal to this decision. However, pursuant to * C.F.R. § 103.5, a motion can be filed on Form I-290B. Such motion must be accompanied by the proper fee and filed within 30 days of this notice". I'm not sure at all if filing such a motion would result in any positive outcome, even if my supporting brief included the correct eligibility category code. Besides, at $630, it would be cheaper to just reapply anew for the EAD.

At this rate I would just like to know what category code (if any) I need to use, and if I'm even able to reapply for my EAD. Also, if I am able to reapply, will this damage my AOS when I get around to filing it in the (hopefully) not too distant future?

AP

A little more straightforward, yet equally as frustrating.

I received an RFE a month ago, stating: "This office is unable to complete the processing of your Application for Advance Parole, Form I-131, without additional information. Please submit the information below". It then goes on to ask for evidence of a pending I-485 (AOS), or evidence of my relationship as a spouse of an Active Duty, Select Reserve, Ready Reserve or individual who previously served in the U.S Armed Forces. The letter is not applicable as my wife has never served in the army or any affiliated body.

Once again, I have always understood that filing for the AP could be done alone, or in concurrence with the AOS. I have no idea why I have received this RFE or what I can do about it.

I am at my wit's end and at a total loss as to what I need to do in order to successfully rectify the situation with both my EAD and AP. The whole point of me filing the EAD, specifically, prior to my AOS, is so that my wife and I will have enough provable income to satisfy the poverty threshold for the AOS. At present, because my wife had previously been in education and not really earning, we would not meet the requirements for proving satisfactory income for the previous 2 (or 3) fiscal years.

If anyone has concrete advise on what steps I need to take in order to get on top of this sorry mess I would be eternally grateful. It may seem obvious to others, and there may be a simple solution, but I am so overwhelmed and awash with forms, codes, specific categories etc., that I am finding it hard to see the wood for the trees.

Best,

Mark

[Amhara 460]

1) At this rate I would just like to know what category code (if any) I need to use, and if I'm even able to reapply for my EAD. Also, if I am able to reapply, will this damage my AOS when I get around to filing it in the (hopefully) not too distant future?

You cannot use any category. You are not eligible for EAD as you entered much longer than 90 days and you don't seem to have filed for AOS. You may file for EAD after/during AOS. This mistake shouldn't affect your AOS/EAD/AP application.

2) I have always understood that filing for the AP could be done alone, or in concurrence with the AOS. I have no idea why I have received this RFE or what I can do about it.

You are correct. Since you have not filed for AOS, you do not qualify for AP. If you have no Form I-485 NOA (AOS NOA) then you cannot respond to the RFE and your AP petition will again be rejected.

[Canerican 242]

1. When the instructions talk about filing your EAD or AP alone it means that you can file them alone after filing your AOS. Due to the fact that you had not filed AOS that disqualified you for an EAD and AP. You might ask, well it says that I can apply for an EAD when I enter the USA. That EAD is only for 90 days and expires when your I-94 expires and has a price tag. It takes about 70-90 days to get the EAD approved thus it is a waste of money.

2. If you had filed your AOS before applying for the EAD it would have been code c(9) and would have cost nothing due the pending AOS.

3. Now that it is over a year since you entered the USA ,I believe, that you now have to fill out and file the I-130,I-485 (AOS), I-765 (EAD), I-131 (AP) concurrently and get a new medical done. If someone else could respond definitively on this that would be great.

I'm sorry to hear about your situation.

[Amhara 460]

And a co-sponsor. Get a co-sponsor for Form I-864.

[Caryh 5,206]

The EAD could have been applied for on first entry with the I-94 for a K-1. Last time I saw someone try, they actually approved it for a year, although it should have been set to expire with the I-94. This is why its rarely filed for alone.

File for AOS, EAD, and AP concurrently. You only pay for the AOS, the others are free with the AOS.

You should withdraw the other EAD and AP applications, if they haven't been denied already. They have no basis for approval and will only confuse the situation. The wording you are seeing for the RFE's are possible routes to approval, none of which apply in your case. RFE's are form letters that are copied and pasted statements. Likely this is the closest they could get to saying you filed for something you can't get, or at least you've given no evidence of a path to be eligible for them.

[Beefheart 31]

Thank you for the information, folks; you've all been most helpful.

I'm going to look into the specifics of the financial proof, as my wife more than meets the poverty guideline, but only has a worthwhile tax return for last year, and I'm assuming this year's projected income doesn't really count for meeting such requirements.

Is the i-130 necessary? I'll have to attempt to get a definitive answer through research, as I don't fancy forking out an extra $420 if there's no reason to.

In terms of my medical records, would getting my existing U.K. worksheet transferred onto the U.S. equivalent and signed off by one of the approved practitioners suffice, or would I have to actually go through an examination at extra cost? The worksheet is essentially just a vaccinations record, hence why I ask.

My eternal thanks once again for all the positive feedback and advice.

[Amhara 460]

Research the income requirements. I know the I-864 has a more stringent requirement level than the I-134. She may need a co-sponsor if her income in the past years weren't over the thresholds. I know I included current year income projections too, but we didn't have the threshold issue.

I am not sure if the I-130 is needed. I don't think so since you are here. I think you are adjusting from a K-1 visa. If you were adjusting from a different non-immigrating visa, then you would. But research. I'm not sure about that either.

You won't need new vaccinations, but you do need a new medical. You will take your vaccination record to the civil surgeon to get that transcribed. Call around because each can choose their own price tag. It can get rather pricey.

[Caryh 5,206]

Thank you for the information, folks; you've all been most helpful.

I'm going to look into the specifics of the financial proof, as my wife more than meets the poverty guideline, but only has a worthwhile tax return for last year, and I'm assuming this year's projected income doesn't really count for meeting such requirements.

Is the i-130 necessary? I'll have to attempt to get a definitive answer through research, as I don't fancy forking out an extra $420 if there's no reason to.

In terms of my medical records, would getting my existing U.K. worksheet transferred onto the U.S. equivalent and signed off by one of the approved practitioners suffice, or would I have to actually go through an examination at extra cost? The worksheet is essentially just a vaccinations record, hence why I ask.

My eternal thanks once again for all the positive feedback and advice.

if you married within the first 90 days with the K-1 visa entry, no I-130 is needed. If you married after the first 90 days, then yes you need the I-130.

[Beefheart 31]

Thank you, Caryh. We did, indeed, marry within the 90-day period, so at least that's one less thing to worry about.

Thank you also, Amhara for the info on the medical related situation. I do know from past research that the fee can vary wildly and that some civil surgeons try to milk it a little, so I'll be sure to shop around for quotes before parting with my money.

You're all a huge credit to this forum!

[KayDeeCee 4,893]

3. Now that it is over a year since you entered the USA ,I believe, that you now have to fill out and file the I-130,I-485 (AOS), I-765 (EAD), I-131 (AP) concurrently and get a new medical done. If someone else could respond definitively on this that would be great.

If they entered on a K-1 and married within 90 days, no I-130 is needed. It makes no difference how long they wait to file for AOS. There is no filing deadline. They do need to now pay for a whole new medical though.

To the OP> AP is not something you can file for before AOS. Without being an adjustment applicant, you have no eligibility to file for AP. The EAD you could file for before AOS would have cost you $380 and only been valid for as long as the I-94 was. It is a pointless waste of money. You would not have had enough time to be employed using such an EAD. All a moot point now though, since you are no longer even eligible to use cat (a )(6 ).

The fees for the I-765 and I-131 are waived when filed with a pending I-485. The cat for the EAD is (c )(9 ), adjustment applicant. That EAD is good for a year and is renewable(if needed). That is what you need to do.

Edited April 20, 2016 by KayDeeCee