Green Card Denied Due to I-94 error

[Jazz Jazz 0]

Hi everyone, I am a U.S. citizen and my spouses' green card got denied because CBP incorrectly admitted him as an F1 visa student instead of a (DA )advance parolee. Since USCIS thought he abandoned his case, it got terminated. We filed a motion to reopen his case with USCIS and got his I-94 corrected by a CBP officer. His I-94 has the correct class of admission and the reason for the denial has now been fixed. But now, his F1 Visa and I-94 are expired, which would not have occurred if I-94 was corrected in the first place. Instead they would've granted him the green card. Now we are waiting for the Motion to Reopen but he is currently in a "Limbo" status unable to do anything until the case is adjudicated. 

 

USCIS said all we can do is a file a motion to reopen and expedite the case, which we did. So now we are just waiting. We are both afraid that USCIS will say we fixed CBP's error too late.... I really hope this error , which has now been fixed, will not cause him to get deported or have our motion denied :(.

 

Anyone have any helpful information ? All is appreciated. 

[Bajinga 136]

this is not a USCIS error so there is a big chance the motion will be denied. you should have checked the I-94 on entry and made sure the status is correct. Since the I-94 is corrected now, you should be able to refile everything in the worst case. based on the amount of time the MTR takes, it might have been better to just refile

[Allaboutwaiting 2,503]

I think the motion to reopen has enough basis to be approved, as you provided evidence of "new facts"; in this case, the corrected I-94.

 

Worst case scenario: you'll be denied and receive a notice to appear before an immigration judge. Then, you would be able to refile for adjustment.

 

Stay positive and good luck! 

[Jazz Jazz 0]

28 minutes ago, Bajinga said:

this is not a USCIS error so there is a big chance the motion will be denied. you should have checked the I-94 on entry and made sure the status is correct. Since the I-94 is corrected now, you should be able to refile everything in the worst case. based on the amount of time the MTR takes, it might have been better to just refile

Thanks for your response but a motion to reopen is about stating new facts supported by documentary evidence. That's exactly what we are doing.  😕

[geowrian 22,337]

I agree that an MTR has a decent chance of success.

If that fails - or you don't want to risk the fee + delay - then a new I-485 can be filed. The existing EAD and/or AP in that case would be no longer valid (they die with the original I-485), but you can apply for new ones.

[Jazz Jazz 0]

3 minutes ago, geowrian said:

I agree that an MTR has a decent chance of success.

If that fails - or you don't want to risk the fee + delay - then a new I-485 can be filed. The existing EAD and/or AP in that case would be no longer valid (they die with the original I-485), but you can apply for new ones.

Yes we are now planning to refile our I-485 application. Fortunately we do have an approved I-130 petition for alien relative on our side. But now that his F-1 visa and I-94 are expired , we dont know if it is possible to refile the I-485 and be ok. So our plan is to get legal advice. 

[geowrian 22,337]

7 minutes ago, Jazz Jazz said:

Yes we are now planning to refile our I-485 application. Fortunately we do have an approved I-130 petition for alien relative on our side. But now that his F-1 visa and I-94 are expired , we dont know if it is possible to refile the I-485 and be ok. So our plan is to get legal advice. 

If you are a US citizen then the unlawful presence acquired between denial and refiling is not a bar for AOS.

[Bajinga 136]

4 hours ago, Jazz Jazz said:

Thanks for your response but a motion to reopen is about stating new facts supported by documentary evidence. That's exactly what we are doing.  😕

I wish you the best of the luck. even in the worst case you still have the option to refile.

[Ryan H 3,812]

Moved from What Visa Do I Need - Family Based Immigration forum to General Immigration-Related Discussion.

[Jazz Jazz 0]

Case Update:  I called USCIS and they said that the adjudicating officer has our I-290B Motion to Reopen case. I also got a letter in the mail stating the same thing but that they cannot give me a time as to when the case will be adjudicated. Does anyone have an estimated time of how long it may take the officer to make a decision once they have the case in hand? 

[Villanelle 4,122]

290b has a few options on it on the specifics of "how" you are appealing. I don't have it in front of me but from what I remember (look at the form and instructions) but there are different ways. One is a local appeal that goes to the local office (I think that's what you did) and that they usually give the standard 60-90 day time frame for response. The other one goes to admin office of appeals and that takes much longer. Generally most things with USCIS you can expect min 30 day acknowledgement and apx 60 days response time.