Denial of I-485 due to not fully responding to an RFE on I-864

[Mike E 11,739]

This is not for me.  I’ve asked the couple in question  to make an account on visajourney.  I hope they do that.  While it is a marginal case from the perspective of income, the petitioner does earn enough money but is having challenges proving it.  
 

They received an RFE and did not respond with not everything asked for. The petitioner sent just sent a W-2, whereas the most recent federal tax return was asked for, as well as a new I-864.  I believe implicit with that is that USCIS wanted pay stubs and an employment verification letter too.  
 

Meanwhile the beneficiary got an EAD and SSN.  
 

The denial says they were asked in the RFE to submit an I-864 from a joint sponsor, but the RFE did not say that.  The petitioner does earn enough in 2021 so I don’t think a joint sponsor would be needed.  
 

They want to get a lawyer.  Which if they can afford, I think they should do as this would be their third attempt at an I-485.  But I also think if they cannot afford a lawyer, that following the VJ guides, posting on VJ when they have questions would work too.  
 

Meanwhile they’ve 33 days to file I-290B, refile, or the beneficiary can leave the USA.  
 

My knee jerk reaction is they should refile (with an amended joint 2020 tax return now that the beneficiary has an SSN) but wanted to tap into the collective wisdom of VJ if the I-290B is worth considering here.  
 

Thanks.  

[payxibka 10,045]

Implicit in a i290b filing is that an error was made by the USCIS.   Based on your explanation,  I don't see it.

Edited May 22, 2021 by payxibka

[Mike E 11,739]

2 minutes ago, payxibka said:

Implicit in a i290b filing is that an error was made by the USCIS.   Based on your explanation,  I don't see it.

Definitely not an error by USCIS.  
 

Thanks. 
 

re-file it is. 

[Crazy Cat 41,845]

34 minutes ago, Mike E said:

Definitely not an error by USCIS.  
 

Thanks. 
 

re-file it is. 

Agree.  I would IMMEDIATELY file a PROPER I-485 package...including a new I-765 and I-131.  

[Mike E 11,739]

1 minute ago, Lucky Cat said:

Agree.  I would IMMEDIATELY file a PROPER I-485 package...including a new I-765 and I-131.  

Thanks.  That is what I am advising.  

[Demise 1,283]

15 hours ago, payxibka said:

Implicit in a i290b filing is that an error was made by the USCIS.   Based on your explanation,  I don't see it.

I-290B can be be filed to do one of 4 things:

1. Motion to reopen (i.e. here's more evidence that should overcome a denial)

2. Motion to reconsider (i.e. USCIS erred here, here, and here, please review)

3. Both 1 & 2

4. Appeal to AAO (generally not available for I-485) (i.e. USCIS really erred here, and we want a higher authority to slap some sense into them)

 

The problem with filing I-290B is that USCIS doesn't really revive your I-485 unless you win whatever you're seeking. So you can't use a receipt notice on I-290B to for instance file for a new EAD/AP.

 

That being said, what to do depends on the particular case:

1. If this is a case where failure to maintain status is not a big deal (e.g. IR, Fiance, VAWA, 245(i), employment based adjustment while under 180 days out of status which falls under 245(k), or similar adjustment), then you can either re-file I-485 or file a Motion to Reopen I-290B, depending on whether or not you want an EAD in the interim.

2. If this is a case where failure to maintain status is a big deal (e.g. F2A, employment based adjustment while over 180 days out of status, etc) then the only way forward is through a Motion to Reopen I-290B.

 

Technically it is also possible to end up in removal proceedings and the IJ review the previously denied I-485 de novo, at point of which you could supply the missing documents but this falls outside the scope of this question.

Edited May 23, 2021 by Demise

[Nitas_man 3,100]

16 hours ago, Mike E said:

This is not for me.  I’ve asked the couple in question  to make an account on visajourney.  I hope they do that.  While it is a marginal case from the perspective of income, the petitioner does earn enough money but is having challenges proving it.  
 

They received an RFE and did not respond with not everything asked for. The petitioner sent just sent a W-2, whereas the most recent federal tax return was asked for, as well as a new I-864.  I believe implicit with that is that USCIS wanted pay stubs and an employment verification letter too.  
 

Meanwhile the beneficiary got an EAD and SSN.  
 

The denial says they were asked in the RFE to submit an I-864 from a joint sponsor, but the RFE did not say that.  The petitioner does earn enough in 2021 so I don’t think a joint sponsor would be needed.  
 

They want to get a lawyer.  Which if they can afford, I think they should do as this would be their third attempt at an I-485.  But I also think if they cannot afford a lawyer, that following the VJ guides, posting on VJ when they have questions would work too.  
 

Meanwhile they’ve 33 days to file I-290B, refile, or the beneficiary can leave the USA.  
 

My knee jerk reaction is they should refile (with an amended joint 2020 tax return now that the beneficiary has an SSN) but wanted to tap into the collective wisdom of VJ if the I-290B is worth considering here.  
 

Thanks.  

My call:  Refile a full, properly prepared package

 

[Villanelle 4,122]

8 hours ago, Demise said:

 

 

The problem with filing I-290B is that USCIS doesn't really revive your I-485 unless you win whatever you're seeking. So you can't use a receipt notice on I-290B to for instance file for a new EAD/AP.

 

Excellent write up by Demise. Adding on- when you file the motion your pending 485/EAD becomes valid/active while the motion is reviewed/adjudicated. If the motion is ultimately denied your EAD will be void, as long as its pending your EAD is valid. None of this is 'instant'- meaning when you are denied the 485 it can take a bit for the system to mark your EAD as void, and then when the motion is filed it can take a bit for the system to show valid again. If the immigrant already has a job they can keep working. The system will catch up at some point to show EAD as valid with no interruptions (unless motion is denied). If the immigrant is not working they can check their status on everify when applying for jobs as they need the EAD to go back to valid status due to the motion being filed in order to get hired.

 

It seems the couple has some financial issues so they may need the immigrant to be working right now. The immigrants income can also be added to the borderline qualifying 864- which may tip the scale in approval. 

 

So I guess I am in the minority as I am of the opinion they should file the motion. I understand the language on the motion makes it appear as if they dont have a chance to win the motion as it was their fault but in practice USCIS routinely approves motions like this. They dont want you to go to the end of the line again! 

 

The motion will cost 675 to file. That is less than a new AOS package would cost. If the immigrant is working presently their income during the time the motion is processing will offset that cost and if the motion is ultimately denied so be it. They would then have to file a new AOS package and pay those fees (and the immigrant would have to stop working until a new EAD is issued) but hopefully has been able to save up some money from the period of time they were working while the motion was pending to be OK. 

 

 

[Aspire5532 5]

Thanks everyone for input

[Mike E 11,739]

21 minutes ago, Aspire5532 said:

Thanks everyone for input

And thanks for joining VJ.