Parents I-130 deneid can they uese old valid B-2 to come back to USA

[IFI 0]

Not sure about the AP, not enough to make a sensible comment.

But on the B2, if they intend to immigrate then like others have said the B@ route is a no goer. They may have issues persuading a POE Oficer that they have non immigrant intent.

Just wondering did you not get a RFE before the Denial?

I think the OP got an RFE

...As soon as they went out USCIS denied their AP+I-130+I-485 because they couldn't get my birth certificate in a foreign language when I replied their RFE stating that I have it in English language only...

I think the more applicable question is, why is the original BC (or copy of the original) not available? Did you explain that in your reply to the RFE?

Either way, I think you may have trouble using the original B2 visa to enter the US, as there is clearly intent to emigrate which is evidenced by the I-130+I-485 which was applied for.

Can you not re-apply for your parents, without their presence, as the original application(s) were denied because of 'missing' papers, not the merits of the case? You're free to re-appply.

Good luck,

-P

How can I re apply if they are not here? I can only ile I-130 and then the CP through my country.

We got an RFE and then sent the BC but INS offices wrote that I sent them a translation not an original one. A joke to me.

[Chris Parker 11]

you miss the interview without trying to change the date, they cancel any EAD and AP at the same time. It goes into the computer immediately, and you cannot re-enter the US with a cancelled AP document. If you can get back in the US legally, you can start again with the new I-485 and it will be processed without prejudice to the fact that the first was cancelled.

They did not invalidate the AP or EAD for us. They also took an additional 18 months to issue the denial notice after the missed interview too, after a new I-485 had already been filed.

You can apply for adjustment of status based on an I-94 marked for parole also, which was the legal entry we had to use. This was a K1 adjustment too! (i.e., the K1 adjustment application actually was supported by legal entry with an I-94 marked only for parole)

[Chris Parker 11]

They gave us only to appeal the I-130 motion to reopen was not the choice they gave us. On 485 USCIS is allowing motion to reopen but since they are out of the country I am afraid they will deny it again saying you are out of the country please to CP.

Must be physically present in the U.S. to file I-485. However, once I-485 is filed they can leave and return with AP. Must again be physically present in the U.S. for any interview and to receive approval of the I-485 (USCIS cannot issue a 'visa').

Motion to reopen? It is still the original application that is being considered, so I think you can do it with their signature while they are outside the U.S., but they will have to get back to the U.S. first in order for the underlying adjustment application to be approved.

Edited November 14, 2007 by Chris Parker

[Chris Parker 11]

They gave us only to appeal the I-130 motion to reopen was not the choice they gave us. On 485 USCIS is allowing motion to reopen but since they are out of the country I am afraid they will deny it again saying you are out of the country please to CP.

Is B-2 and immigration tied when one is a visa and the later is based on an alien number?

You can do a motion to reopen on any application or petition, even the I-130 though they didn't tell you in the notice. Again, USCIS notices aren't legal advice and can be generalized in nature. The right to appeal the I-130 to the AAU is an additional right above the normal ability to file a motion to reopen with office that made the unfavorable decision. USCIS is not required on any application or petition to inform you of the ability to file a motion to reopen/reconsider (they are only required to inform you of the right to appeal if applicable).

The B-2 is specifically for a nonimmigrant classification. You can't use that visa with the premeditated intent to file I-485 subsequent to entry. Only entry with the AP, if actually still valid as I think it might be, will allow you to do what you want to do.

Edited November 14, 2007 by Chris Parker

[IFI 0]

you miss the interview without trying to change the date, they cancel any EAD and AP at the same time. It goes into the computer immediately, and you cannot re-enter the US with a cancelled AP document. If you can get back in the US legally, you can start again with the new I-485 and it will be processed without prejudice to the fact that the first was cancelled.

They did not invalidate the AP or EAD for us. They also took an additional 18 months to issue the denial notice after the missed interview too, after a new I-485 had already been filed.

You can apply for adjustment of status based on an I-94 marked for parole also, which was the legal entry we had to use. This was a K1 adjustment too! (i.e., the K1 adjustment application actually was supported by legal entry with an I-94 marked only for parole)

Chris,

They are outside, B-2 is risky, AP is dead.

I am left with MTR for 485 but it will be denied coz they are not in the USA. What a mess.

So I think my only option is a CP. What are the chances of geting a GC on a CP?

By the way one more thing:

1- They have been to USA many times on dirrent B-2's, I don't know if it will affect their coming in? Is it good or bad?

[Chris Parker 11]

1- They have been to USA many times on dirrent B-2's, I don't know if it will affect their coming in? Is it good or bad?

The first part of the very well known INA 214( b ) answers your question: "Every alien ... shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15)."

Therefore, when it comes to the approval of immigrant visas, consular officers actually do not have a discretionary authority like USCIS has over deciding the I-485 adjustment of status. Immigrant visas are an entitlement. The consular officer must classify the applicants into a specific nonimmigrant visa category based on their stated intents, or give them an immigrant visa, there is no in between. Denial can only be for a ground of inadmissibility or other ineligibility, with the applicant generally having a right of rebuttal per INA 221(g).

For the foregoing reasons, consular processing typically takes 9 months for an immediate relative case such as yours and mine (also for a parent).

I get another lawyer's advice about the AP before concluding it is surely dead, because by the very language on its face, it still just as valid for the stated purpose as it was before this happened to you.

Edited November 14, 2007 by Chris Parker

[Minya's wife 25]

Not sure about the AP, not enough to make a sensible comment.

But on the B2, if they intend to immigrate then like others have said the B@ route is a no goer. They may have issues persuading a POE Oficer that they have non immigrant intent.

Just wondering did you not get a RFE before the Denial?

I think the OP got an RFE

...As soon as they went out USCIS denied their AP+I-130+I-485 because they couldn't get my birth certificate in a foreign language when I replied their RFE stating that I have it in English language only...

I think the more applicable question is, why is the original BC (or copy of the original) not available? Did you explain that in your reply to the RFE?

Either way, I think you may have trouble using the original B2 visa to enter the US, as there is clearly intent to emigrate which is evidenced by the I-130+I-485 which was applied for.

Can you not re-apply for your parents, without their presence, as the original application(s) were denied because of 'missing' papers, not the merits of the case? You're free to re-appply.

Good luck,

-P

How can I re apply if they are not here? I can only ile I-130 and then the CP through my country.

We got an RFE and then sent the BC but INS offices wrote that I sent them a translation not an original one. A joke to me.

I think what you're missing here is that USCIS is requesting a document from you that you either do not have or are not able to provide. If so any future filings may be in jeopardy of having the same negative conclusion as these you've just described. Whether you choose to file I-130 and do an IR/CR, or use a MTR to re-examine your original application, the fact still stands that you are a naturalized citizen who is petitioning for his parents. As such, it is incumbent upon you to prove you are the son/daughter of said parents. You've provided them with an english translation, but not the document you're claiming to have translated. Therein lies the the problem....USCIS wants to see the original document, in the original language....and if they ask for it, its should not be taken as a joke.

-P

[Chris Parker 11]

I think what you're missing here is that USCIS is requesting a document from you that you either do not have or are not able to provide. If so any future filings may be in jeopardy of having the same negative conclusion as these you've just described. Whether you choose to file I-130 and do an IR/CR, or use a MTR to re-examine your original application, the fact still stands that you are a naturalized citizen who is petitioning for his parents. As such, it is incumbent upon you to prove you are the son/daughter of said parents. You've provided them with an english translation, but not the document you're claiming to have translated. Therein lies the the problem....USCIS wants to see the original document, in the original language....and if they ask for it, its should not be taken as a joke.

Absolutely correct.

Actually, USCIS policy is that an ordinary copy of original documents may be submitted in lieu of the original with the application/petition (except for translations, only original translations can be submitted), unless the actual original is subsequently requested, and it seems the OP submitted no foreign birth certificate with the original petition, and only an original translation without even a copy of the original underlying document with the RFE response. Usually, translations are attached to a copy of the original they are translating. You can see why the USCIS officer just lost patience and just denied the petition at that point for lack of required initial evidence.

Edited November 14, 2007 by Chris Parker

[Minya's wife 25]

I think what you're missing here is that USCIS is requesting a document from you that you either do not have or are not able to provide. If so any future filings may be in jeopardy of having the same negative conclusion as these you've just described. Whether you choose to file I-130 and do an IR/CR, or use a MTR to re-examine your original application, the fact still stands that you are a naturalized citizen who is petitioning for his parents. As such, it is incumbent upon you to prove you are the son/daughter of said parents. You've provided them with an english translation, but not the document you're claiming to have translated. Therein lies the the problem....USCIS wants to see the original document, in the original language....and if they ask for it, its should not be taken as a joke.

Absolutely correct.

Actually, USCIS policy is that an ordinary copy of original documents may be submitted in lieu of the original with the application/petition (except for translations, only original translations can be submitted), unless the actual original is subsequently requested, and it seems the OP submitted no foreign birth certificate with the original petition, and only an original translation without even a copy of the original underlying document with the RFE response. Usually, translations are attached to a copy of the original they are translating. You can see why the USCIS officer just lost patience and just denied the petition at that point for lack of required initial evidence.

It makes no sense that if you receive an RFE for a document that you forgot or did not send originally, why you wouldn't send it when requested. Not fully satisfying/addressing issued RFE's can create a bigger quagmire which will be difficult to sort out in the long run. It just makes me wonder...what did the OP use on the I-130 to prove that his parents are his parents? (If he/she sent in only the translation, without the underlying original document, there is no logic in that, seeing as how in order to approve a "family" based petition USCIS must verify that what you say is your BC is indeed your BC.)

-P

[IFI 0]

I think what you're missing here is that USCIS is requesting a document from you that you either do not have or are not able to provide. If so any future filings may be in jeopardy of having the same negative conclusion as these you've just described. Whether you choose to file I-130 and do an IR/CR, or use a MTR to re-examine your original application, the fact still stands that you are a naturalized citizen who is petitioning for his parents. As such, it is incumbent upon you to prove you are the son/daughter of said parents. You've provided them with an english translation, but not the document you're claiming to have translated. Therein lies the the problem....USCIS wants to see the original document, in the original language....and if they ask for it, its should not be taken as a joke.

Absolutely correct.

Actually, USCIS policy is that an ordinary copy of original documents may be submitted in lieu of the original with the application/petition (except for translations, only original translations can be submitted), unless the actual original is subsequently requested, and it seems the OP submitted no foreign birth certificate with the original petition, and only an original translation without even a copy of the original underlying document with the RFE response. Usually, translations are attached to a copy of the original they are translating. You can see why the USCIS officer just lost patience and just denied the petition at that point for lack of required initial evidence.

It makes no sense that if you receive an RFE for a document that you forgot or did not send originally, why you wouldn't send it when requested. Not fully satisfying/addressing issued RFE's can create a bigger quagmire which will be difficult to sort out in the long run. It just makes me wonder...what did the OP use on the I-130 to prove that his parents are his parents? (If he/she sent in only the translation, without the underlying original document, there is no logic in that, seeing as how in order to approve a "family" based petition USCIS must verify that what you say is your BC is indeed your BC.)

-P

Guys,

I sent them the original Birth Certificate copy NOT a translation twice once originally then after theh RFE signed and attested by the mayor of the city where I was born plus attested by the foreign office of my country. I got my GC and citizenship on a BC that was in English. A USCIS office can assume anything and can show his power coz he is powerful. I was told not to let them out of the country before AP. They got it and left, 10 days after their departure the case was denied. I got them a business class non returnable return ticket costing $6500.

Well we got a bad officer but the question is where to go and what to do.

One of the lawyers told me that they can still come a B-2 coz the databases are not synced and if you don't have an entry on the passport then you are good, but how do I know?

[Minya's wife 25]

I think what you're missing here is that USCIS is requesting a document from you that you either do not have or are not able to provide. If so any future filings may be in jeopardy of having the same negative conclusion as these you've just described. Whether you choose to file I-130 and do an IR/CR, or use a MTR to re-examine your original application, the fact still stands that you are a naturalized citizen who is petitioning for his parents. As such, it is incumbent upon you to prove you are the son/daughter of said parents. You've provided them with an english translation, but not the document you're claiming to have translated. Therein lies the the problem....USCIS wants to see the original document, in the original language....and if they ask for it, its should not be taken as a joke.

Absolutely correct.

Actually, USCIS policy is that an ordinary copy of original documents may be submitted in lieu of the original with the application/petition (except for translations, only original translations can be submitted), unless the actual original is subsequently requested, and it seems the OP submitted no foreign birth certificate with the original petition, and only an original translation without even a copy of the original underlying document with the RFE response. Usually, translations are attached to a copy of the original they are translating. You can see why the USCIS officer just lost patience and just denied the petition at that point for lack of required initial evidence.

It makes no sense that if you receive an RFE for a document that you forgot or did not send originally, why you wouldn't send it when requested. Not fully satisfying/addressing issued RFE's can create a bigger quagmire which will be difficult to sort out in the long run. It just makes me wonder...what did the OP use on the I-130 to prove that his parents are his parents? (If he/she sent in only the translation, without the underlying original document, there is no logic in that, seeing as how in order to approve a "family" based petition USCIS must verify that what you say is your BC is indeed your BC.)

-P

Guys,

I sent them the original Birth Certificate copy NOT a translation twice once originally then after theh RFE signed and attested by the mayor of the city where I was born plus attested by the foreign office of my country. I got my GC and citizenship on a BC that was in English. A USCIS office can assume anything and can show his power coz he is powerful. I was told not to let them out of the country before AP. They got it and left, 10 days after their departure the case was denied. I got them a business class non returnable return ticket costing $6500.

Well we got a bad officer but the question is where to go and what to do.

One of the lawyers told me that they can still come a B-2 coz the databases are not synced and if you don't have an entry on the passport then you are good, but how do I know?

You're not making any sense....are you originally from a country where the national language is english? Was your BC when you were born issued in English? If so, then when you received the RFE requesting the "original language" BC, did you write a letter explaining that it is the original language BC?

BUT if, when you were born, you were issued a BC in another language....subsequently had it translated into english (even if it was done while still in you home country) USCIS would still want to see both the copy of the original language BC and the translation.

There is no conspiracy here, which is what some of your comments seem to be implying. I cant see a rogue immigration adjudicator denying petitions without merit. That something was miscommunicated, misunderstood between you the petitioner and that immigration officer, I can see that happening.

I would not place to much faith on being able to enter on an old B-2 visa. Once you are issued an immigrant visa, you can bet you A$$ that the DOS knows about it and their database is updated, just by the simple fact that you go though processing at the Port of Entry....so yes the databases are inc syc.....and yes they know that there is immigrant intent. To then go back and use a non immigrant visa only to come in and re-declare your immigrant intent (if you chose to re-apply, or to follow through with the MTR) is somewhat fraudulent IMHO and opening up your parents to potentially greater scrutiny and possibly being turned away when they try to enter US.

-P

[Chris Parker 11]

I sent them the original Birth Certificate copy NOT a translation twice once originally then after theh RFE signed and attested by the mayor of the city where I was born plus attested by the foreign office of my country. I got my GC and citizenship on a BC that was in English. A USCIS office can assume anything and can show his power coz he is powerful.

Well we got a bad officer but the question is where to go and what to do.

Yikes!

Did the RFE specify they wanted the birth certificate in an official language of the country other than English? If so, I would have sent them what they asked for, or if not, at least included a note indicating that English is an official language of the country, or if the country has no officially designated language (BTW, the U.S. does not), this document in English is indeed a legal document under the laws of that country and duly issued by the appropriate authority in English language.

I was told not to let them out of the country before AP. They got it and left, 10 days after their departure the case was denied. I got them a business class non returnable return ticket costing $6500.

One of the lawyers told me that they can still come a B-2 coz the databases are not synced and if you don't have an entry on the passport then you are good, but how do I know?

This situation is precisely why I think they still can return to the U.S. with the AP they have. They left only after receiving a signed, written assurance from the district director (on Form I-512 no less, as required) that they would be allowed to legally return to the U.S. in a parole status in order to resume their adjustment application however necessary.

The parole authority INA 212(d)(5)(A) is entirely independent from the adjustment application, and under the policy, a pending adjustment application is only required in order to obtain the AP, not to use it, which BTW is different from the EAD where the underlying authority to work is specifically linked to the pending adjustment application. I've read these things very closely many times over the years, and I think your lawyer should be doing more than just reading USCIS's notice back to you, especially with that much money to lose. In the worst case (AP is invalid and they tried to use it), I think your parents would be placed in removal proceedings, whereupon they would file Form I-130 & Form I-485 with immigration court for discretionary relief from removal, and the immigration judge would interview them and decide the applications and adjust their status rather than USCIS. Why hasn't your lawyer considered that path?

Edited November 14, 2007 by Chris Parker

[desert_fox 32]

Something is not making sense here.

First you state that you were unable to provide an original BC in its native language, but had an English translation of the original.

Subsequently, you state that you submitted the original BC twice....

Which was it??

What they want is the original BC in its native language along with an English translation.

[Chris Parker 11]

The parole authority INA 212(d)(5)(A) is entirely independent from the adjustment application, and under the policy, a pending adjustment application is only required in order to obtain the AP, not to use it

An important addition to my previous statement above: To use the AP at any time, the requirement is that the adjustment applicant is "prima facie" eligible to obtain adjustment approval. In a case such as yours where the original adjustment application was denied subsequent to the issue of the AP, I think the AP can still be used only in limited circumstances. Specifically, notwithstanding the prior denial, it would need to still be possible for the applicant to file a new I-485 adjustment application immediately upon receiving parole.

If that's interpretation is true, then no, in your case as it stands right now, your parents can't use the AP because USCIS denied your I-130 and they have no legal basis of eligibility to file a new I-485, and therefore the denial notice's message that they can't use the AP is turns out be correct (although the AP isn't quite invalidated as you might be led to believe, they just are ineligible under its contingency).

However, if this is so, because the reason for the I-130 denial was administrative (failure to submit required evidence), you should also be able to rectify this situation pretty easily so that they can still use the AP: File a new I-130 (don't do a motion), and send the I-130 filing receipt to your parents to present with the AP upon arrival. The necessary prima facie evidence will then be present to show that they can file a new I-485 upon being paroled to resume adjustment, and they should be paroled. A good immigration lawyer should see this potential.

This is different than my experience described previously, because my case was a K1 adjustment, and as such the I-129F petition was already approved and the I-485 already could be re-filed by itself.

Also, if it helps us understand this matter any better, I also know of a case where someone left the U.S. for Canada without any AP while adjustment was still pending (causing automatic abandonment of the adjustment application only) and then tried to return for interview and was given deferred inspection at the land border. Per my suggestion, he prepared a new I-485 and brought that to the district office for the deferred inspection. He said they were preparing to take him into custody there, until he presented the new I-485 and with fee payment, at which point they instead took the application and fee and gave him a parole stamp on his I-94 and let him go, and his adjustment application was subsequently approved at interview several weeks later (though the adjudication officer also required him to formally submit a withdrawal notice for the previous I-485 at the interview to avoid confusions).

Edited November 14, 2007 by Chris Parker

[Chris Parker 11]

One of the lawyers told me that they can still come a B-2 coz the databases are not synced and if you don't have an entry on the passport then you are good, but how do I know?

That would be the hallmark signature of a very bad immigration lawyer, certainly one who is only going to make things worse for you.

I'd find another immigration lawyer if I were you rather than talk this one again, his advice is unethical as he is clearly encouraging you to commit fraud by taking advantage of "the databases are not synced." It doesn't matter even if that were true, when USCIS reviews the new adjustment application, the databases will be synced together and beware the fury!

Edited November 15, 2007 by Chris Parker