RFE - I485, Where did I mess up?

[Willowsedit 0]

Hi all, looking for advance before my lawyer visit so I can at least set realistic expectations.

 

I am Unmarried daughter (21 or older) of USC, 203(a)(1) INA at time of filing.

I am currently inside the US and I have been since being petitioned. 

My father petitioned me and my younger brother, we did all the paperwork ourselves. All the forms filed were : I130, I485, I765, I864. Forms I130 were filed first, then the others some months after . I did research during the initial filing stage and saw the forms could be concurrently filed, which is what I did for me and my brother (I handled all paperwork and filing for us both, while father paid the fees). 

Since then, my brother and I got our ssn and work permit. Recently , we both got updates from USCIS, my brother's requested his medical but mine has the medical request and this RFE . It says I have until April 24th to respond and I'm worried I  might have messed up my application somewhere, because I honestly don't know what to give them.

 

Ever since getting the RFE I've been doing more research and here is where I could have went wrong:

 

• My green card application I485 was filed before getting I130 approval, unlike my brother who did have an approval letter when I mailed our applications (I mailed my receipt of I130 instead to show case was pending).  However, my I130 petition was approved.
• Possibly Ineligible for concurrent filing; because of my age/category I could have been ineligible unlike my brother who was a month before 21 when I sent in our paperwork.

 

 

If anyone can point out where I went wrong and explain the letter that would be really helpful so I can better prepare for my consultation. 

[powerpuff 6,122]

You’re not eligible to adjust status through your father. Your visa number is not available and won’t be for the next 9+ years (you can have a look a the visa bulletin F1 category). Your I-485 will be denied so you need the leave the US ASAP and wait for the process abroad in order to avoid getting a ban for unlawful presence.

 

Edited March 28, 2023 by powerpuff
Added a year to 8

[Allaboutwaiting 2,502]

You already have almost two years of unlawful presence in the US - from May 21st, 2021 to date-.

 

That means when leaving the US you will be inadmissible for 10 years. 

 

As @powerpuff says, you are not eligible to adjust status through your father and you must leave the US as soon as possible. 

The correct process was your father filing the I-130 and once approved, waiting for your category to become current - as per the visa bulletin-. All that while you waited outside the US.

[SteveInBostonI130 3,332]

Your brother's category is IR2 because he is a child of USC (under 21).

 

Your category is F1, unmarried son/daughter of USC over 21.  You cannot adjust status until a visa number becomes available, which is about 8+ years currently.

 

You cannot overstay. You are not an immediate relative of a USC because you are over 21 at the time of filing.  Your category is family preference, and overstays are NOT forgiven.

 

As @powerpuff stated, you need to leave the US if your authorized stay is over.  If you leave before 6 months, you will avoid a ban.  If you leave over 6 months and before 1 year of overstay, you will just have a 3 year bar.

[Allaboutwaiting 2,502]

1 minute ago, SteveInBostonI130 said:

 If you leave before 6 months, you will avoid a ban.  If you leave over 6 months and before 1 year of overstay, you will just have a 3 year bar.

Her I-94 expired on May 21st., 2021. She already has a 10 year ban. 

[Willowsedit 0]

16 minutes ago, Allaboutwaiting said:

Her I-94 expired on May 21st., 2021. She already has a 10 year ban. 

with my understanding even though i've discovered i filled incorrectly for myself, the  presence after i filed i485 wouldn't  count. So at most 3 year ban considering the time i had out of status.

 

However, what do i do with the rfe? Leave it unanswered, leave the country  and let them consider it abandoned? 

 

What if I was petition by a spouse in the future? I do have a long term boyfriend I've been seeing close to two years here. Would he be able to sponsor me after marriage or did I ruin any chance for future applications?

[Rocio0010 5,577]

7 minutes ago, Willowsedit said:

the  presence after i filed i485 wouldn't  count

Are you sure?

[Allaboutwaiting 2,502]

The I-485 was incorrectly filed and for

10 minutes ago, Willowsedit said:

with my understanding even though i've discovered i filled incorrectly for myself, the  presence after i filed i485 wouldn't  count. So at most 3 year ban considering the time i had out of status.

 

However, what do i do with the rfe? Leave it unanswered, leave the country  and let them consider it abandoned? 

 

What if I was petition by a spouse in the future? I do have a long term boyfriend I've been seeing close to two years here. Would he be able to sponsor me after marriage or did I ruin any chance for future applications?

The I-485 was incorrectly filed and does not grant lawful status/ authorize your presence in the US. So as soon as you leave the country, the 10 year ban starts. 

Edited March 28, 2023 by Allaboutwaiting

[SteveInBostonI130 3,332]

9 hours ago, Willowsedit said:

with my understanding even though i've discovered i filled incorrectly for myself, the  presence after i filed i485 wouldn't  count. So at most 3 year ban considering the time i had out of status.

 

However, what do i do with the rfe? Leave it unanswered, leave the country  and let them consider it abandoned? 

 

What if I was petition by a spouse in the future? I do have a long term boyfriend I've been seeing close to two years here. Would he be able to sponsor me after marriage or did I ruin any chance for future applications?

 

Best to send a letter withdrawing the I-485.

 

For the spouse visa, this adjustment attempt will probably be asked about during the interview at the embassy.

 

You will more than likely need stronger relationship evidence than others and be prepared for heavy scrutiny.  But after you serve the bar for re-entry, technically you can immigrate.

[Redro 4,603]

11 hours ago, Willowsedit said:

with my understanding even though i've discovered i filled incorrectly for myself, the  presence after i filed i485 wouldn't  count. So at most 3 year ban considering the time i had out of status.

 

However, what do i do with the rfe? Leave it unanswered, leave the country  and let them consider it abandoned? 

 

What if I was petition by a spouse in the future? I do have a long term boyfriend I've been seeing close to two years here. Would he be able to sponsor me after marriage or did I ruin any chance for future applications?

Is your boyfriend a US citizen? Do you live together/ have you commingled finances etc? 
 

[Willowsedit 0]

47 minutes ago, ROK2USA said:

Is your boyfriend a US citizen? Do you live together/ have you commingled finances etc? 
 

yes, yes, and yes. The relationship is serious and we only put off getting married because (when i thought i filed correctly) I had to wait out the green card process while unmarried.

[davidvs 320]

48 minutes ago, Willowsedit said:

yes, yes, and yes. The relationship is serious and we only put off getting married because (when i thought i filed correctly) I had to wait out the green card process while unmarried.

If you are contemplating getting married, look into adjusting status as a spouse of a USC.

DO NOT GET MARRIED JUST TO GET A GREEN CARD

I would imagine there would be a lot of scrutiny involved since your AOS through your father is going to be denied. 

[Redro 4,603]

1 hour ago, Willowsedit said:

yes, yes, and yes. The relationship is serious and we only put off getting married because (when i thought i filed correctly) I had to wait out the green card process while unmarried.

He can file for you. 
if he does 1.) DON’T leave the country until you have a GC in hand 2.) Consider hiring a lawyer to help you construct a solid case. 
USCIS smells fraud when people have a file twice for adjustment and the first application was denied / had issues. 
And getting married after receiving an RFE because your AOS is about to be denied makes it look like you’re ONLY getting married for the GC. 

[Crazy Cat 40,128]

14 hours ago, Willowsedit said:

the  presence after i filed i485 wouldn't  count.

Only true if It was a proper I-485.  If you filed it improperly or inappropriately, it did not stop accrual of unlawful presence. 

Edited March 28, 2023 by Crazy Cat

[Crazy Cat 40,128]

13 hours ago, Rocio0010 said:

Are you sure?

In the OP's case, I think it was inappropriately filed......therefore, it did not stop accrual of unlawful presence.