Early GC approval and subsequent NOIR

[SnowFairy 10]

Hello everyone! 

 

I need help with a pretty rare situation here.

 

Back in March, USCIS approved my I-485 a few weeks before I became eligible. I pointed it out to them, and now they sent me an NOIR. The form was indeed approved in error, but it was their mistake and not mine, since asylees are allowed to apply before they satisfy the one-year requirement. What do I do now? As I see it, my options are:

 

1. Respond to NOIR. Are they able to re-approve the petition? Or if it was approved in error, they can only rescind? Can I still do I-290B and ask them to reopen?
2. Request a hearing in front of a judge. What are the chances, possible outcomes and risks in this scenario?
3. Ignore it, wait for a rescission, re-apply. Why do people say that you end up in removal proceedings if your GC is rescinded? Don't you just go back to your previous status?

 

I'm probably going to get a lawyer anyway. How do I find one that has dealt with something similar?

 

Any info and advice is greatly appreciated🙏

Edited July 28 by SnowFairy

[Crazy Cat 41,983]

I don't know much about asylee options, but I am curious.  Did you apply too early?  Is the NOIR related to fact that you applied before the one year mark?

Note: I have read that if you file too early, they can send a RFE.

Edited July 28 by Crazy Cat

[SnowFairy 10]

1 minute ago, Crazy Cat said:

I don't know much about asylee options, but I am curious.  Did you apply too early?  Is the NOIR related to fact that you applied before the one year mark?

Asylees become eligible for GC one year after asylum grant (INA 209). Previously, we were supposed to wait this year before we applied. On February 2, 2023, USCIS changed the rules to allow us to apply right away, but they still cannot approve it until the one-year mark. And since then it's been a mess, a lot of unjustified denials and erroneous approvals. Technically, I just need them to rescind the previous approval and re-approve the same petition right away since I'm now eligible and didnt break any rules when applying, but the problem is new and it's hard to find similar stories with clear outcomes.

[TBoneTX 45,591]

Rather than seeking a lawyer immediately, perhaps consider an InfoPass appointment with USCIS directly.

[SnowFairy 10]

2 minutes ago, TBoneTX said:

Rather than seeking a lawyer immediately, perhaps consider an InfoPass appointment with USCIS directly.

That idea didn't occur to me. Can you provide any more info? I thought they scheduled those appointments just for the three reasons listed on the website (ADIT, IJ grant and EAP). How do I schedule one to discuss a NOIR?

[TBoneTX 45,591]

2 minutes ago, SnowFairy said:

How do I schedule one to discuss a NOIR?

I never had to set one, and I've been out of that scene for years, so others will be better able to help (and they surely will).

[Family 4,065]

2 hours ago, SnowFairy said:

Hello everyone! 

 

I need help with a pretty rare situation here.

 

Back in March, USCIS approved my I-485 a few weeks before I became eligible. I pointed it out to them, and now they sent me an NOIR. The form was indeed approved in error, but it was their mistake and not mine, since asylees are allowed to apply before they satisfy the one-year requirement. What do I do now? As I see it, my options are:

 

1. Respond to NOIR. Are they able to re-approve the petition? Or if it was approved in error, they can only rescind? Can I still do I-290B and ask them to reopen?
2. Request a hearing in front of a judge. What are the chances, possible outcomes and risks in this scenario?
3. Ignore it, wait for a rescission, re-apply. Why do people say that you end up in removal proceedings if your GC is rescinded? Don't you just go back to your previous status?

 

I'm probably going to get a lawyer anyway. How do I find one that has dealt with something similar?

 

Any info and advice is greatly appreciated🙏

Upload your NOIR ( redacted) if you want feedback…and a 2nd pair of eyes.

The change you reference on the one year is nuanced. After the change you  needed 1 year physical presence on day they adjudicate the I-485…you cannot say they made an error because they got to your case early.

 

 

Before the change , you needed 1 year from the date of grant/ asylum approval.

 

 

 

If you did not meet criteria before, then still respond to NOIR, say  Oops! My Bad , wait 30 days ( or less ) and file new I-485. 

 

You can argue, but it’s your mistake…cause you got to my case too fast and approved it in error…no harm 

 

Don’t waste time/energy talking to USCIS….there is nothing they can do without your written response/action

 

https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-asylees#:~:text=On Feb.,to get a Green Card.

 

Eligibility for Adjustment of Status

In order to be eligible for a Green Card as an asylee, you must meet the following requirements:

• You properly file Form I-485, Application to Register Permanent Residence or Adjust Status;
• You are physically present in the United States when you file your Form I-485;
• You have been granted asylum status by USCIS or former INS, an immigration judge with the Executive Office for Immigration Review (EOIR), the Board of Immigration Appeals with EOIR, or a federal court;
• You have been physically present in the United States for at least 1 year after you were granted asylum;
• You continue to meet the definition of a refugee (for example, a principal asylee), or to be the spouse or child of a refugee (for example, a derivative asylee);
• You have not firmly resettled in any foreign country;
• Your grant of asylum has not been terminated;
• You are admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief; and
• You merit the favorable exercise of discretion.

Edited July 28 by Family

[SnowFairy 10]

9 minutes ago, Family said:

Upload your NOIR ( redacted) if you want feedback…and a 2nd pair of eyes.

The change you reference on the one year is nuanced. After the change you  needed 1 year physical presence before applying for LPR.

Before the change , you needed 1 year from the date of grant/ asylum approval.

 

If you have one year of physical presence at time of I-485 application, then simply  DIY response to the NOIR , show proof of presence for relevant date and say USCIS Service Error.

 

If you did not meet criteria before, then still respond to NOIR, say Oops! My Bad and file new I-485.

 

Don’t waste time/energy talking to USCIS….there is nothing they can do without your written response/action

 

https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-asylees#:~:text=On Feb.,to get a Green Card.

 

 

Eligibility for Adjustment of Status

In order to be eligible for a Green Card as an asylee, you must meet the following requirements:

• You properly file Form I-485, Application to Register Permanent Residence or Adjust Status;
• You are physically present in the United States when you file your Form I-485;
• You have been granted asylum status by USCIS or former INS, an immigration judge with the Executive Office for Immigration Review (EOIR), the Board of Immigration Appeals with EOIR, or a federal court;
• You have been physically present in the United States for at least 1 year after you were granted asylum;
• You continue to meet the definition of a refugee (for example, a principal asylee), or to be the spouse or child of a refugee (for example, a derivative asylee);
• You have not firmly resettled in any foreign country;
• Your grant of asylum has not been terminated;
• You are admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief; and
• You merit the favorable exercise of discretion.

Hey! Thank you for taking time to respond!

 

It seems that USCIS confused everyone with that policy change. The announcement (https://www.uscis.gov/newsroom/alerts/uscis-clarifies-physical-presence-guidance-for-asylees-and-refugees-applying-for-adjustment-of) says that we need a year of physical presence to be eligible for AOS, but when you open the actual policy manual that they amended (https://www.uscis.gov/policy-manual/volume-7-part-m-chapter-2), then it's a year of physical presence after the asylum grant. I had been present in the US for over a year when I filed I-485, but the physical presence after asylum grant requirement still applies. Asylum-based GCs are backdated one year, so now my 'resident since' date is before the asylum grant, which makes no sense. 

Anyway, they admit in the NOIR that the petition was approved in error (see attached).

 

Is there any template or requirements to response to NOID? Or do I just write a statement in my own words and attach proof?

 

Thanks!

[Family 4,065]

I will give you a detailed response to your upload , but can you 1st clarify date you applied for I-485….is it BEFORE or after Feb 2023 ( when they implemented change)

[SnowFairy 10]

4 minutes ago, Family said:

I will give you a detailed response to your upload , but can you 1st clarify date you applied for I-485….is it BEFORE or after Feb 2023 ( when they implemented change)

 

After, I filed in July 2023.

[Family 4,065]

Just now, SnowFairy said:

 

After, I filed in July 2023.

At time of filing 07/2023 , had you been physically present in the US for 1 year? When did you enter ? 

[SnowFairy 10]

6 minutes ago, Family said:

At time of filing 07/2023 , had you been physically present in the US for 1 year? When did you enter ? 

May 2022.

[TBoneTX 45,591]

SnowFairy, you're fortunate that Family is helping you.  Do what she says.   

[Family 4,065]

2 hours ago, SnowFairy said:

Hey! Thank you for taking time to respond!

 

It seems that USCIS confused everyone with that policy change. The announcement (https://www.uscis.gov/newsroom/alerts/uscis-clarifies-physical-presence-guidance-for-asylees-and-refugees-applying-for-adjustment-of) says that we need a year of physical presence to be eligible for AOS, but when you open the actual policy manual that they amended (https://www.uscis.gov/policy-manual/volume-7-part-m-chapter-2), then it's a year of physical presence after the asylum grant. I had been present in the US for over a year when I filed I-485, but the physical presence after asylum grant requirement still applies. Asylum-based GCs are backdated one year, so now my 'resident since' date is before the asylum grant, which makes no sense. 

Anyway, they admit in the NOIR that the petition was approved in error (see attached).

 

Is there any template or requirements to response to NOID? Or do I just write a statement in my own words and attach proof?

 

Thanks!

As a template for your response, use their own draft and add sworn affidavit to title. …no I-290 B here. 

After you write it up and sign it, go to a Notary and ask for a Jurat ( not Acknowledgment)

 

Title it for Example : 

‘Response to Notice of Intent to Rescind Permanent Resident  and 

‘Sworn Statement by @SnowFairy

Case #xyz, A# xyz

 

In response to the NOIR dated xyz, requesting the following additional documentation :

 

1. Evidence to support the respondent is statutorily qualified for adjustment of status under sec xyz ( cut copy paste sec)

 

2. Sworn statement by respondent 

 

I am enclosing the following evidentiary documentation and factual clarification . 
I , SnowFairy , hereby declare the following to be true , under penalty of perjury:

 

1. As of the date of above referenced NOIR, I meet all statutory requirements under sec xxx, as outlined on USCIS  ( list the bullet points ) attach print out 

 

2. On July 2023, I submitted I-485 , relying on the published guidance of Feb 2023 and the estimated processing times . The Feb 2023 guidance clearly states an applicant may submit I-485 prior to accruing 1 year physical presence in asylee status. ..without additional burdens / restrictions on the applicant’s role or responsibilities as it relates to the timing of processing and adjudication. 
‘Since applicants have no control over The Service’s processing speeds, or lack of, I placed my faith in USCIS Policy Manual Guidance .

 

3. USCIS adjudicated and approved my I-485 prematurely on xyz.  This is a Service Error . In good faith , I advised The Service , a noteworthy fact meriting discretion .

 

4. I hereby admit allegations 1 through 4 . I deny allegation 5. As of xyz date , i have one year since IJ grant and meet all criteria for adjustment of status. 
‘To rectify USCIS error, I am submitting a new I-485 and recession proceedings be terminated and ask the benefit granted .

 

Signed under penalty of perjury …

 

 

 

 

https://www.justice.gov/eoir/reference-materials/ic/chapter-7/3

Edited July 28 by Family

[Family 4,065]

It will be a bit of a game / tactic to see if you can simultaneously

1. file a new I-485 …include copy of Noir and your Response 

2. Include copy of new I-485 form with Response . Just list it as an exhibit and write w a big sharpie “ Copy as filed “ on form itself 

 

3. Since you have been through EOIR already, you can DIY ( self represent ) even a court appearance . Worst case scenario, you will have to adjust with IJ…but I don’t think it will get that far. Judge will give them a tongue lashing 😂..but you will be fine