K1-AOS Denial due to expired medical. Filing i290b. What to expect?

[Jjames9897 0]

Hello everyone. Been a while since I've posted on here. Anyway. My wife filed for AOS around October 2016. This past July we were notified that the medical exam had expired and we needed get another one and send in the results. Around the same time as that my wife had a serious surgery and between the chaos of that and everything I completely missed the part where it gave a deadline to have the new results in by. Stupid thing to do but I did it. Last week we got the letter in saying that we have been denied aos. That my wife needs to immediately start making plans to leave or she forfeits asking for any immigration  benefits in the future. And that if we don't appeal to reopen the case withing 30 days the decision is permanent. Anyway, all that said we have an appointment for the physical this Tuesday and are going to send it in with form i290B and the fee as soon as the results are in. (probably next Thursday-happy Thanksgiving to everyone btw) I have a few questions. First off when they says to immediately start making plans to leave. Is it safe to say a month is a reasonable amount of time to get your things in order to leave the country? 

 

My next question would be on how long this should take? This is what USCIS says 

"Initial field review: The office that issued the unfavorable decision has 45 days to evaluate the appeal and determine whether to take favorable action on the appeal. If that office does not take favorable action, it will forward the appeal to the AAO and send the appellant a Notice of Transfer to the AAO."

This means that Assuming the physical exam is the only issue in our case. Upon receiving i290b they have 45 days to open/evaluate it and make a decision. That decision is an approval for AOS or simply an approval to reopen the case. 

Also I'm assuming the day the case is reopened my wife is allowed to enter the US again correct? 

 

If anyone has personal experience or heard of a personal experience where this exact same thing happened I would mind hearing how it went for you / him/her. 

 

Sorry for the long post. Thanks for your time  

[NikLR 13,228]

Is your wife outside the USA?  I would suggest she NOT leave.  You can appeal but really you should just refile the AOS.

[Coco8 1,042]

I agree. She should not leave. Follow the instructions you received and do everything as soon as possible.

[geowrian 22,337]

I'd also suggest refiling. Appeals are to argue that the case was denied due to an error by USCIS. While I understand the hectic nature involved with what you were going through, the error was still your mistake so an appeal doesn't really apply.

 

You can refile fine. Once you refile, authorized stay resumes. If she had AP or an EAD, those are now invalid and she needs to apply again.

The advantage of an appeal is that AP and EAD would remain valid, but again, I don't think there is a strong case for approval.

[Mr Geminian 691]

I agree with others. Re-file is the best option. If you have documents from the hospital about the surgery that may be helpful as proof for further reference. 

[Jjames9897 0]

Sorry for using the word appeal. It appears to be the same form (i290b) but what I'd actually be doing is a motion to reopen the case. In which I have one Month to give them new evidence. In this case submit the new medical exam results before their denial is permanent and I do have to do what yall r suggesting and refile. Here's a link. https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao/practice-manual/chapter-4-motions-reopen-and-reconsider

 

Sorry for using the wrong word and calling it an appeal. But really it's USCIS and the way they have things worded. In the letter they sent me it actually says "you are not eligible for an appeal..." then the next line says. "you may file and appeal to reopen your case..." anyway, the link up there explains the way it all works. Sorry if I confused yall. It's USCIS fault. As far as I can tell filing the "appeal" or motion. Or whatever it should be called is our best bet. We file it and send in the new evidence (phisical exam) and that should be the end of it. But if you know that isn't the case let me know. But form what I've read that's how they are making it sound. 

 

And my wife is here in the US. We've been married for a year and a half now. Are yall saying she should or shouldn't leave the US? The letter says to leave the US immediately because her legal residence here is only valid while waiting  for AOS to process. But being they its denied she has no legal right to be here and should leave because otherwise itll look bad when looking at our case or if she gets denied for this and has to apply again etc... Her advance parol /work permit expires in February. Should we leave or not leave? 

[NikLR 13,228]

Her ap and ead were cancelled when thr aos was denied.  At this time she absolutely should NOT leave the USA.  I don't care what the letter says.   She also must quit working until her ead is reissued. 

 

[milimelo 4,505]

Don't bother with I-290b. Refile AOS. 

[Hypnos 6,577]

An MTR is unlikely to be successful. You were properly denied, and the reason for the denial was completely your fault. I'm not bashing you here, but simply stating a fact. 

 

Generally, you cannot fix a denial that you caused by using an MTR. 

 

The best way to proceed, as others have stated, is to re-file from scratch. Plus you're probably looking at about a year to process the MTR. 

 

Re-filing is your best option. 

[Suss&Camm 2,213]

You are misunderstanding. The evidence for a motion to re-open  needs to show that they denied the case in error. They didn't, since you failed to produce the documents they asked for within the timeframe given. Producing it AFTER the denial doesn't change that. You need to refile.

As mentioned by @NikLR, the EAD/AP card is no longer valid as of denial. You will need to start over, and no no no no DO NOT have her leave the country.

[Jjames9897 0]

Excuse me, I don't mean to be rude in any way because I know that yall are trying to help. But from what I'm reading on there web site some of yall are saying things that are directly contradicting what USCIS days and is making me wonder if yall know what yall are talking about or are just speculating. I know most of us here aren't immigration lawyers and I except that most of the info here is opinion /personal experience. I'm just asking that we limit post where we are just guessing about something. 

For those who haven't read the link here is what it says "

Unlike appeals, which ask a different authority to review and reverse a decision, motions to reopen and/or reconsider request a review by the authority that issued the latest decision in the proceeding.^[114]  Therefore, a U.S. Citizenship and Immigration Services (USCIS) field office has jurisdiction over motions relating to its decisions, and the AAO has jurisdiction over motions relating to its decisions.

A motion to reopen is based on documentary evidence of new facts.^[115]  Alternatively, a motion to reconsider is based on a claim of incorrect application of law or policy to the prior decision.^[116]  The AAO may grant a motion that meets requirements of a motion to reopen and/or reconsider and overcomes the basis of the prior decision.

The regulations for motions to reopen and motions to reconsider are located at 8 C.F.R. § 103.5.

4.2      Motions to Reopen

A motion to reopen must state new facts and be supported by affidavits or other documentary evidence.^[117]  Resubmitting previously provided evidence or asserting a fact without providing supporting documentary evidence will not meet the requirements of a motion to reopen.  See Chapter 3.8(b) for more information about requirements for documentary evidence.

4.3      Motions to Reconsider

A motion to reconsider must establish that the AAO based its decision on an incorrect application of law or policy, and that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision.^[118]  The AAO will not consider new facts or evidence in a motion to reconsider.

In determining whether a prior decision was based on an incorrect application of law or policy, the AAO will consider any relevant precedent decisions, as well as relevant statutory and regulatory provisions, binding federal court decisions, and statements of USCIS policy."

 

So there are three different things that can be filed. A motion to reconsider a motion to reopen or an appeal. The motion to reconsider or to appeal is basically the same thing (and it appears that's what most of yall think I'm talking about filing.) both are for when you have recieved an unfavorable decision and you are asking them to think a second time if they made the best decision about your case. No new evidence etc. The only difference between the two is the office that reviews the dicision.(I agree that that would be pretty useless and probably not get you anywhere)  A motion to reopen on the other hand is different in that it allowes you to submit new evidence. Reopen your case and revalue there decision based on that new evidence. In our case it is a medical exam results. With all that said do yall still feel the same way that filing the motion to reopen the case would be pointlessand I should refill aos. 

[Hypnos 6,577]

You are absolutely free to file an MTR. 

 

Please post back with what happens if you do. Most likely, it will be denied. 

[Jjames9897 0]

That's not what I was trying to say. And I'm not upset. I'm just making sure everyone is on the same page. If you already or anyone already knew the differences between an appeal, a motion to reconsiderand a motion to reopen and from experience have seem that motions to reopen seldom work well and get the same as motions to reconsider and or an appeal. If you or anyone else knows all that and think a motion to reopen the case is useless then I WANT to here from them. I'm not stubborn. I just wanted to make sure the advice I was recieving was coming from informed people. I wasn't trying to insult anyone or hurt anyone's feelings. If you feel this way knowing that a motion to reopen exist to let you submit new evidence into a case. Then explain why. I want to know. If I knew all the answers I wouldn't be here asking but I know I don't that's why I'm asking. I just wanted to make sure we're on the same page. Since we were denided because the phisical exam results were expired. And they have a way to send them the new exam results. It's stands to reason that it "should" be as simple as sending in those new results allowing them to reopen the case. And assuming everything else in the case is good. Be approved. HOWEVER, I wouldn't be surprised if it wasn't that simple even if they etchings I read made it sound that way. That's why I'm asking. Because i know just because it sounds that simple doesn't mean it is. 

 

I am concerned about that if it'd your fault then you can't file a motion to reopen. I'd understand that and am looking for where I saw that to re-read it... 

 

 

[Jjames9897 0]

I'm still looking into everything but os far this is what I've found

 

"Field office denials of an immigration benefit request as abandoned, administratively terminated, or administratively closed may not be appealed to the AAO.[47]  However, appellants may file a motion to reopen the field office decision." 

 

"The AAO will also accept new evidence on appeal that had been previously requested by a field office.  The appellant’s failure to respond to a field office’s request will not prevent the AAO from considering that evidence on appeal.

 

That said, an appellant must be eligible for the requested immigration benefit at the time of filing and remain eligible through the adjudication process.[75]  An appellant who only satisfies the requirements of an immigration benefit after filing an application or petition is not eligible for that benefit."

 

[Hypnos 6,577]

I've been reading up for the past hour on this topic and issues surrounding it. As you know, for a Motion To Reopen to be successful you must introduce "new facts", together with "new evidence". Now, you could try to Reopen and enclose a new I-693 and see what happens, and you know what, it might work. My gut instinct says it wouldn't, but I've found a couple of cases where other appeals from rejected I-693s were overturned. None of them were for not submitting an I-693 when directed to by an RFE, however.

 

Put it this way: suppose you had had that second medical completed, sent it back to USCIS, you saw it was delivered on the delivery tracking, but you were then denied with the same reason: for not submitting a completed I-693. "But hey", you say, "I did submit an I-693... and here's the delivery tracking showing it was delivered to you on this date". In this case, an I-290B Motion To Reopen would be successful because you would introduce a new fact to USCIS, that you did submit an I-693 to them and the fact they didn't process it correctly is their fault. In this case right now, there is no new fact. You cannot fix now what you didn't fix then during the prescribed time. Now, some adjudicator looking at your appeal might just think "to hell with it/I don't get paid enough for this/duck Trump" and approve you anyway. I could see situations where that might happen. Much more likely though would be a rejection of your MTR for not introducing any new facts.

 

Like I said, could an MTR work? Perhaps. Will a fresh filing, complete with all evidence, supporting documentation, and a bona fide relationship be approved? Definitely. I would take definitely over maybe any day of the week.

 

Also bear in mind that your spouse will be considered out of status during the pendency of the MTR. USCIS shoots for 3 months processing time, but that's like saying Donald Trump aims to tell no lies today. ~6-12 months is far more common, and your wife will be deportable during that time, since she has no legal status or presence as of the day the I-485 was denied, and filing an MTR would not grant her one.

 

Ultimately it's up to you. I know which I would pick.

Edited November 26, 2017 by Hypnos