Adjustment of status not approved

[SLJ 0]

Adjustment of status not approved due to being out of status . How can this be resolved?

[HRQX 4,145]

5 minutes ago, SLJ said:

How can this be resolved?

Can you share more background info? Who filed the I-130? Is the petitioner a US citizen?

[SalishSea 17,839]

29 minutes ago, SLJ said:

Adjustment of status not approved due to being out of status . How can this be resolved?

What visa did you enter on?

[SLJ 0]

6 hours ago, Jorgedig said:

What visa did you enter on?

A visitor's visa. Filing was done by a US Citizen

6 hours ago, HRQX said:

Can you share more background info? Who filed the I-130? Is the petitioner a US citizen?

Yes the petitioner is a US Citizen. -Stepmom

[SalishSea 17,839]

52 minutes ago, SLJ said:

A visitor's visa. Filing was done by a US Citizen

Yes the petitioner is a US Citizen. -Stepmom

How old were you when she married your dad?

 

What was your status when the petition was sent in?

[SLJ 0]

1 hour ago, Jorgedig said:

How old were you when she married your dad?

 

What was your status when the petition was sent in?

Well it is my sister that got the denial. The process is at the final stage but the adjustment of status went in late at the final stage. It did not go in with initial application. Based on the denial, she would have been out of status when the petition went in, however she was a minor when she became out of status. She got biometrics done but realised that her case was assigned to her home country for interview. It was at that time the adjustment status was done

Edited March 31, 2021 by SLJ

[HRQX 4,145]

4 hours ago, SLJ said:

Well it is my sister that got the denial.

Just to confirm, the US citizen and her parent married before she turned 18? And the I-130 was filed before she turned 21 and she currently is unmarried? If so she is still an Immediate Relative and thus the I-485 was denied in error. In that case I recommend to contact the CIS Ombudsman: "I have received an action or decision that involves clear errors of fact or gross and obvious misapplication of the relevant law by USCIS." https://www.dhs.gov/topic/cis-ombudsman/forms/7001 An example description:

Quote

To Whom It May Concern:
On <date of denial> USCIS denied my I-485 application (<I-485 case number>) based on a gross obvious misapplication of the law, because USCIS completely ignored INA 245(c)(2), INA 245(c)(8), and the relevant section for "Immediate Relatives" in 7 USCIS Policy ManualB.8. Also per INA 201(f) my age is based on the I-130 petition filing date; and I'm the "child" of a US citizen per INA 101(b)(1)(B). I have uploaded the recent I-485 (<I-485 case number>) Denial Notice and the relevant section of 7 USCIS Policy ManualB.8.

Policy Manual: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

INA 245: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim

INA 201: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1151&num=0&edition=prelim

INA 101: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1101&num=0&edition=prelim

[aaron2020 11,651]

If you want good answers, then you need to present us with all the relevant facts.  Please answer all these questions.

 

How old is your sister right now?

 

How old was your sister when her US citizen stepmother married her dad?

 

How old was your sister when her US citizen stepmother filed the I-130?

 

Has your sister ever left the US after being out of status?

[SLJ 0]

28 minutes ago, aaron2020 said:

If you want good answers, then you need to present us with all the relevant facts.  Please answer all these questions.

 

How old is your sister right now?

 

How old was your sister when her US citizen stepmother married her dad?

 

How old was your sister when her US citizen stepmother filed the I-130?

 

Has your sister ever left the US after being out of status?

 

28 minutes ago, aaron2020 said:

If you want good answers, then you need to present us with all the relevant facts.  Please answer all these questions.

 

How old is your sister right now? She is 33 years old

 

How old was your sister when her US citizen stepmother married her dad? She was a minor -Dont quite remember the age. 

 

How old was your sister when her US citizen stepmother filed the I-130? She was an adult. Around seven years ago - 26 years

 

Has your sister ever left the US after being out of status? No -She hasn't

 

[SLJ 0]

40 minutes ago, HRQX said:

Just to confirm, the US citizen and her parent married before she turned 18? And the I-130 was filed before she turned 21 and she currently is unmarried? If so she is still an Immediate Relative and thus the I-485 was denied in error. In that case I recommend to contact the CIS Ombudsman: "I have received an action or decision that involves clear errors of fact or gross and obvious misapplication of the relevant law by USCIS." https://www.dhs.gov/topic/cis-ombudsman/forms/7001 An example description:

Policy Manual: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

INA 245: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim

INA 201: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1151&num=0&edition=prelim

INA 101: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1101&num=0&edition=prelim

Yes .They were married before she turned 18

 

[SLJ 0]

42 minutes ago, HRQX said:

Just to confirm, the US citizen and her parent married before she turned 18? And the I-130 was filed before she turned 21 and she currently is unmarried? If so she is still an Immediate Relative and thus the I-485 was denied in error. In that case I recommend to contact the CIS Ombudsman: "I have received an action or decision that involves clear errors of fact or gross and obvious misapplication of the relevant law by USCIS." https://www.dhs.gov/topic/cis-ombudsman/forms/7001 An example description:

Policy Manual: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

INA 245: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim

INA 201: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1151&num=0&edition=prelim

INA 101: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1101&num=0&edition=prelim

Her parent was married before she turned 18. The I-130 was done after age 21 and she is currently unmarried. Thanks for your reply

 

[aaron2020 11,651]

USCIS properly denied your sister's adjustment of status.  Your sister does not qualify to adjust status in the US.  

 

Your sister was petitioned in the F1 family preference category, US citizen parent petitioning for an unmarried child over age 21.

The reason your sister's adjustment of status was denied is because overstay is not forgiven for a beneficiary in the F1 category.  An F1 family preference beneficiary must be in status in order to qualify to adjust status.  Your sister is out of status and does not not qualify to adjust status in the US.

Your sister needs an I-601a waiver for her unlawful presence.  After the I-601a is approved, she will need to interview for an immigration visa in Juarez, Mexico.   This is the way to resolve your sister's situation.  

If your sister had been petitioned before age 21, it would have been a different story.  Under 21 and being petitioned by a USC stepparent would have resulted in an Immediate Relative case where your sister's overstay would have been forgiven and she could have adjusted status in the US for a green card.

Edited March 31, 2021 by aaron2020

[HRQX 4,145]

1 hour ago, SLJ said:

The I-130 was done after age 21

Then the I-485 was properly denied. She is not an "Immediate Relative" so the INA 245(c) adjustment bars apply. As aaron2020 mentioned above she should file Form I-601A and eventually interview at the consulate for the Immigrant Visa.

 

She might also need to file Form I-824 so that USCIS forwards the approved petition to NVC (if NVC doesn't already have the approved petition).

Edited March 31, 2021 by HRQX

[SLJ 0]

1 hour ago, HRQX said:

Then the I-485 was properly denied. She is not an "Immediate Relative" so the INA 245(c) adjustment bars apply. As aaron2020 mentioned above she should file Form I-601A and eventually interview at the consulate for the Immigrant Visa.

 

She might also need to file Form I-824 so that USCIS forwards the approved petition to NVC (if NVC doesn't already have the approved petition).

 

1 hour ago, HRQX said:

Then the I-485 was properly denied. She is not an "Immediate Relative" so the INA 245(c) adjustment bars apply. As aaron2020 mentioned above she should file Form I-601A and eventually interview at the consulate for the Immigrant Visa.

 

She might also need to file Form I-824 so that USCIS forwards the approved petition to NVC (if NVC doesn't already have the approved petition).

 

 

Thank you. What is the objective of the I-601A and the I-824. I believe the NVC has the approved petition already.  Thank you all for your assistance

Edited March 31, 2021 by SLJ

[aaron2020 11,651]

20 minutes ago, SLJ said:

 

 

 

Thank you. What is the objective of the I-601A and the I-824. I believe the NVC has the approved petition already.  Thank you all for your assistance

The objective of the I-601a is to waive her unlawful presence (overstay) so she can qualify for an immigration benefit. 

 

The objective of the I-824 is to transfer her case from USCIS which adjudicates adjustment of status to the NVC which forwards the case to the US Consulate in Juarez for an immigrant visa interview.  Since your sister applied for adjustment of status with USCIS, the NVC may no longer have her case.

 

For the I-601a, your sister would need to show that the US citizen stepparent would suffer an "extreme hardship" if she is not granted the waiver.  You may want to get an attorney to help with this.

 

 

Edited March 31, 2021 by aaron2020