what to do while waiting for 2 year rule is pending after getting I485 denial?

[john5151 0]

I have been working with an attorney who doesn't know the law well enough to tell me that I had to waive my 2 years rule before I applied to i485.

Because of the 2 years rule on my j1 visa I got a denial letter. I already applied for a waiver of 2 years rule. Mail says I have to take an action in 4 weeks after denial decision. What action should I take? if I apply for re opening the case or appeal it and let say USCIS opens, it I will be denied again because it is gonna be the same case because they will consider the application date on i485.

It seems like I can only apply for another i485, however denial letter is saying I have to wait until the waiver for 2 years rule is granted but it takes more than 4 weeks to be granted but I have to take an action in 4 weeks. So complicated.

Any idea ???

And if I re apply i485 do I have to get biometrics, interview and everything from the beginning as the second time?

Edited January 9, 2011 by john5151

[pingwins 10]

If your immigrant petition is granted but waiver application is denied, you need to return to your home country and reside there for two (2) years. After two years,you wil be eligible to apply for an immigrant visa to enter the US

http://www.hooyou.com/j-1/j1_2year_rule_faq.html

http://www.isso.cornell.edu/academicstaff/jwaiver.php

[Harpa Timsah 13,258]

Yes, if you must reapply then you will start over from the beginning. If you try to reopen the case, then you I believe you will miss the deadline in waiting for HRR waiver anyway (there is 30 days to respond to reopen, right?). Hopefully your I-130 will be approved so you won't have to apply for that again (if you are applying based on a marriage). There have been a few members who had to reapply here based on some sort of mistake like inadequately responding to an RFE, etc.

I'm sorry that this is happening to you How about a new lawyer? Good luck.

[JimVaPhuong 4,863]

I have been working with an attorney who doesn't know the law well enough to tell me that I had to waive my 2 years rule before I applied to i485.

Because of the 2 years rule on my j1 visa I got a denial letter. I already applied for a waiver of 2 years rule. Mail says I have to take an action in 4 weeks after denial decision. What action should I take? if I apply for re opening the case or appeal it and let say USCIS opens, it I will be denied again because it is gonna be the same case because they will consider the application date on i485.

It seems like I can only apply for another i485, however denial letter is saying I have to wait until the waiver for 2 years rule is granted but it takes more than 4 weeks to be granted but I have to take an action in 4 weeks. So complicated.

Any idea ???

And if I re apply i485 do I have to get biometrics, interview and everything from the beginning as the second time?

Four weeks is the window of opportunity to file a motion to reopen your denied petition case. That's the "action" they're talking about. You can't file a motion to reopen without either evidence that USCIS erred when it denied the petition (they didn't), or new evidence that would counter the reason for the denial. If you don't get the waiver before the four week window expires then you can't file the motion. As you presumed, it would be denied.

For all practical purposes, it sounds like your petition is dead. You're going to need to refile once you receive your waiver. Yes, you will need to do everything over again, including paying all of the fees. The possible exception is the I-130, since that's a separate petition filed by your US citizen spouse. If that's approved then you include a copy of the approval notice with your new I-485.

I suggest you don't use the same lawyer the second time around.

[tanyaru 3]

Four weeks is the window of opportunity to file a motion to reopen your denied petition case. That's the "action" they're talking about. You can't file a motion to reopen without either evidence that USCIS erred when it denied the petition (they didn't), or new evidence that would counter the reason for the denial. If you don't get the waiver before the four week window expires then you can't file the motion. As you presumed, it would be denied.

For all practical purposes, it sounds like your petition is dead. You're going to need to refile once you receive your waiver. Yes, you will need to do everything over again, including paying all of the fees. The possible exception is the I-130, since that's a separate petition filed by your US citizen spouse. If that's approved then you include a copy of the approval notice with your new I-485.

I suggest you don't use the same lawyer the second time around.

Seriously, how can you call yourself a lawyer andbe such an i###t. I hope doctors are not just calling themselves doctors...or pilots... Sorry, it is just really pi###ng me off when crooks like that try to take advantage of the immigrants. We should start a forum on which lawyer to hire and which is a crook. Anyway, if I-130 is pennding attach a copy of NOA1 from it to the new I-485 along with the waiwer, if I-130 was approved then attach NOA2.

Good luck!

[JimVaPhuong 4,863]

Seriously, how can you call yourself a lawyer andbe such an i###t. I hope doctors are not just calling themselves doctors...or pilots... Sorry, it is just really pi###ng me off when crooks like that try to take advantage of the immigrants. We should start a forum on which lawyer to hire and which is a crook. Anyway, if I-130 is pennding attach a copy of NOA1 from it to the new I-485 along with the waiwer, if I-130 was approved then attach NOA2.

Good luck!

Where did I claim to be a lawyer?

[Harpa Timsah 13,258]

I think he is agreeing with you and complaining about this person's lawyer for not submitting a motion in time/not knowing about HRR req. I had to read it a few times too.

[katgrl 14]

Where did I claim to be a lawyer?

Seriously I did LOL at this. That was my initial thought too that the OP was calling you that. However, I think he was just so upset he didn't listen to what he was writing and figured it could be construed the wrong way.

[JimVaPhuong 4,863]

Ok. After reading it I just got the impression I was getting chewed out.

[Mathilda 19]

I have been working with an attorney who doesn't know the law well enough to tell me that I had to waive my 2 years rule before I applied to i485.

Because of the 2 years rule on my j1 visa I got a denial letter. I already applied for a waiver of 2 years rule. Mail says I have to take an action in 4 weeks after denial decision. What action should I take? if I apply for re opening the case or appeal it and let say USCIS opens, it I will be denied again because it is gonna be the same case because they will consider the application date on i485.

It seems like I can only apply for another i485, however denial letter is saying I have to wait until the waiver for 2 years rule is granted but it takes more than 4 weeks to be granted but I have to take an action in 4 weeks. So complicated.

Any idea ???

And if I re apply i485 do I have to get biometrics, interview and everything from the beginning as the second time?

Sorry to hear that. We also thought at the beginning that marriage would have solved the 2-year requirement, but it took us 1 hour on the internet to find out that it was not the case. Stupid lawyer!

You need to apply for the waiver ASAP! Maybe you can add a note in your statement of reason, in which you explain your situation and they maybe will do an expedite procedure for you. Contact you embassy ASAP to know what they want to give you the No-Objection Statement. It may take you time to put the documents together. The waiver will take about 3 months, if you send all the documents right.

Good luck!

Mathilda

[DaniG 3]

Just a thought, is it possible to file the motion to reopen with evidence that approval of the 2-year rule waiver is pending? Or are there any other motions that can be filed, i.e. in court cases you can file a motion for continuance (which gives you more time to collect evidence needed for your case or be ready for trial given whatever other circumstances are applicable). I am not familiar with this aspect of immigration law, but looking at the US court system & administrative law, it seems it should be possible. I know that for the most part you can't argue with USCIS, but I am just wondering if something like that could be an option - maybe the more experienced people here or an immigration attorney will know.

[JimVaPhuong 4,863]

Just a thought, is it possible to file the motion to reopen with evidence that approval of the 2-year rule waiver is pending? Or are there any other motions that can be filed, i.e. in court cases you can file a motion for continuance (which gives you more time to collect evidence needed for your case or be ready for trial given whatever other circumstances are applicable). I am not familiar with this aspect of immigration law, but looking at the US court system & administrative law, it seems it should be possible. I know that for the most part you can't argue with USCIS, but I am just wondering if something like that could be an option - maybe the more experienced people here or an immigration attorney will know.

You can file a motion to reopen but it will be denied. If the I-485 is not approvable then USCIS is compelled to deny it. If you end up at the point where you're standing in front of an immigration judge then you may ask for a stay while the waiver application is being adjudicated, and the judge has the discretion to grant the stay. Most attorneys would strongly recommend you don't send the I-485 until the waiver has been approved.

Bear in mind that immigration is neither a criminal nor civil legal process. Dealing with USCIS is no different, from a legal perspective, from dealing with any other government agency that handles discretionary benefits. You can ask for a benefit. If it's denied then you can use whatever appeals process they provide. If you want the normal procedures and protections of the court system then you need to file a suit against the agency. That forces the agency to justify their decision according to the law. It also costs a truckload of money.

[john5151 0]

If your immigrant petition is granted but waiver application is denied, you need to return to your home country and reside there for two (2) years. After two years,you wil be eligible to apply for an immigrant visa to enter the US

http://www.hooyou.com/j-1/j1_2year_rule_faq.html

http://www.isso.cornell.edu/academicstaff/jwaiver.php

First of all thanks everyone for your answer, I was not expecting any answers since then first time I am checking this form.

Here is more info:

"immigrant petition is granted" and I already applied for a waiver 3 months ago it is almost done, my embassy sent the "No objection letter" to State Dept. I guess it will take one more month to be granted.

Now my question is I wanna talk to the immigration judge instead of re-applying for i485 because I have no money left for sending to government. Is it possible to be transferred to immigration court from USCIS? or can I directly apply for being judged at immigration court.

I am currently working on finding another lawyer.

[john5151 0]

Yes, if you must reapply then you will start over from the beginning. If you try to reopen the case, then you I believe you will miss the deadline in waiting for HRR waiver anyway (there is 30 days to respond to reopen, right?). Hopefully your I-130 will be approved so you won't have to apply for that again (if you are applying based on a marriage). There have been a few members who had to reapply here based on some sort of mistake like inadequately responding to an RFE, etc.

I'm sorry that this is happening to you How about a new lawyer? Good luck.

Thanks for your good wishes.

yes my application is based on my marriage. I almost got the 2 year rule waiver granted. I-130 was approved 3 months ago. what are my options? I dont have money to re apply and pay another 1000 something dollar. What are the ways of seing the immigration judge?

[john5151 0]

Seriously, how can you call yourself a lawyer andbe such an i###t. I hope doctors are not just calling themselves doctors...or pilots... Sorry, it is just really pi###ng me off when crooks like that try to take advantage of the immigrants. We should start a forum on which lawyer to hire and which is a crook. Anyway, if I-130 is pennding attach a copy of NOA1 from it to the new I-485 along with the waiwer, if I-130 was approved then attach NOA2.

Good luck!

I-130 is approved, what is a NOA2? Since I can not hire another attorney now do you think it will be easy to refile everything?

Thank you