Need help, I485 rejected (improper fee), work visa expried

[Erithtotl 0]

Hi all,

 

My fiance had already started the green card process before we got engaged, so she decided to continue with it ( we are getting married in two months).

 

Anyway, her work visa expired mid-march, so her immigration lawyer submitted i-485, i-785 and i-131 on March 3.

 

Today they all came back rejected due to 'improper fees'.  It's late on a Saturday so can't reach the lawyer and haven't received the packet back.

 

Here's the question.  My understanding is that those forms had to be submitted while she was still in status.  And they were.  But due to lawyer incompetence they've now been rejected and would have to be resubmitted AFTER her status expired.

 

Does she get retroactive status back to March 3 for filing this?  Because otherwise my understanding is she doesn't have cause to file the i-485 since she's out of status. We'd have to run over to the courthouse and get married and start the process as a marriage based adjustment of status.

 

We'll hear about all this on monday but wondering if anyone has some insight now as she's freaking out (understandably)

[aleful 1,905]

who was filing for her? you didn't mention how she was eligible to file adjustment of status

 

that is a very important issue

 

 

[Erithtotl 0]

She was filing under the EB1, Extraordinary Ability.  She's been a working performer in the US for the last 12 years+.

[aleful 1,905]

the company who hired her and was doing the adjustment of status should have taken care of that. she would have been out of status anyway because the adjustment of status takes several months

 

 

[KurosawaSan 52]

13 minutes ago, aleful said:

 she would have been out of status anyway because the adjustment of status takes several months

That's not quite true, because you are in a "limbo status" where you can legally reside in the US even if you are out-of-status while waiting for AOS to be processed.

[KULtoATL 1,551]

USCIS has revised their fees on 23 December 2016. Before submitting any petition, whether you do it yourself, by the employer or attorney, always look for the latest fee schedule and forms. This is the current fee schedule for your reference: https://www.uscis.gov/forms/our-fees

 

Sorry to hear about your fiancee's situation

[geowrian 22,338]

1 hour ago, Erithtotl said:

Here's the question.  My understanding is that those forms had to be submitted while she was still in status.  And they were.  But due to lawyer incompetence they've now been rejected and would have to be resubmitted AFTER her status expired.

 

Does she get retroactive status back to March 3 for filing this?  Because otherwise my understanding is she doesn't have cause to file the i-485 since she's out of status. We'd have to run over to the courthouse and get married and start the process as a marriage based adjustment of status.

 

We'll hear about all this on monday but wondering if anyone has some insight now as she's freaking out (understandably)

Correct. To adjust from an EB-1, you have to be in status at the time of filing. Since she is now out of status, she has no basis to file for AOS. That's awful to hear and it sounds like the the lawyer really screwed up, but the fault ultimately does fall on the person applying for the immigration benefit to ensure the forms are fully completed, accurate, and all other requirements are met...there is no just putting any immigration process in the hands of somebody else.

 

She also filed extremely close to the end of her status. Waiting until the very last moment is always risky as mistakes do happen with a very human-oriented process.

 

Yes, the next best approach is to marry and file AOS as the spouse of a USC. Please consult with the lawyer (as you noted you will do), but also feel free to reach out to others for a second opinion. It sounds like he made one mistake already in step 1 of the process, so getting a second opinion might not be a bad idea.

[aleful 1,905]

true with a spousal visa, overstay is forgiven and she would have been in a period of authorized stay

 

but for an employment visa, she must be in status until she gets her interview and GC. her EAD expired, leaving her without the possibility of working, the company must show that she has legal status

 

they should have extended her EAD or filed 4 to 6 months before her EAD expired. there is no in limbo with a employment based petition, she must be legal at all times since the company has to have proof in case immigration came to check on their employees