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I-485 denied because of out of status , overstayed visa, what can i fight this?

Wendell, NC |

Here is my case:
I have a F1 student out of status since 1998 (came in 1996). Got married in 2005 with a permanent resident, got i-130 approved in Feb 2011, file AOS in June 2013 after my visa was available. My wife has been eligible since May 2013 for her citizenship. She just did her n-400 fingerprint on Nov 29, but we went ahead sent the application. October 16, 2013, I went to the interview, everything went fine, the computers were down, the officer said it was an easy case ) and approved the case on the spot and said she will update when computer come back up and send me the GC. Next thing we know she calls in the next day, and tell my wife she will have to denied the case because I am out of status . So i just got a letter denying the case,30 days to depart the US. What should I do?

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Attorney answers 5

Posted

From the information you have provided, the best path for you probably is to wait for your wife to become a US citizen and reapply. Have a consultation with an immigration attorney and make sure it is done correctly.

Asker

Posted

Thanks, what about i-290b, she just did her fingerprints and have the officer reconsider since she is getting her citizenship?

Robert Louis Brown

Robert Louis Brown

Posted

Since you were statutorily ineligible to adjust you will gain no benefit by filing a motion to reconsider I-290B and thus you will be paying the I-290B filing fee for nothing.

Asker

Posted

Now, I also have 30 days to leave the country, She might have her interview after the deadline, what are my options if any? Thanks

Robert Louis Brown

Robert Louis Brown

Posted

This question is better to discuss in a private conversation, rather than on a public forum such as this

Asker

Posted

Ok. Thanks

Robert Louis Brown

Robert Louis Brown

Posted

you may make contact, directly with an attorney on AVVO by phone or e-mail. Click on the name of the attorney

Posted

Get an attorney ASAP.

Asker

Posted

I will. how would undertake a case like this? Thanks

Irina Alexander Vinogradsky

Irina Alexander Vinogradsky

Posted

Review all your documents.

Asker

Posted

Thanks Irina!

Posted

You were not eligible for adjustment of status and should not have filed until your wife Naturalized. This case might still be able to be saved, but you would want to speak to an experienced immigration attorney.

Kindly note that this posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Remember, this site is akin to an internet blog. Do not rely on information here to make important decisions in your life. Make an appointment to meet with a licensed attorney in his or her office (or via Skype or phone) to obtain competent personal and professional guidance.

Asker

Posted

Thanks Jeff! Actually this was filed with an Immigration attorney, couldn't the i-601 help in conjunction to the application?

Jeff L. Khurgel

Jeff L. Khurgel

Posted

An I-601 may not be necessary. It sounds like you may have received poor advice from your previous attorney, but you really need to consult with an experienced and competent attorney in order to be properly advised.

Asker

Posted

Thanks Jeff for your time, God Bless you!

Posted

Bona fide marriage to a U.S. citizen generally allows for adjustment of status in the U.S. barring certain exceptions such as initial undocumented entry to the U.S., or entry in certain classes such as C/D or entry in K1 and not marrying the sponsor, etc. Please consult with an immigration attorney.

Asker

Posted

Thanks Ajay! This was actually filed with Immigration attorney, I know 2 close relatives who got their Green card through a PR. Would the i-601 and the i-290 help?

Ajay Kumar Arora

Ajay Kumar Arora

Posted

Please have legal consultation with an immigration attorney, as your case is complex.

Asker

Posted

I am meeting a new one tomorrow. Thanks

Posted

Please contact an attorney as soon as possible. You may be placed in deportation proceedings at the discretion of the USCIS. Your wife should apply for citizenship as soon as possible.

Asker

Posted

She did, she did her fingerprints on Nov 29. Thanks

Carlos Andres Lopez

Carlos Andres Lopez

Posted

I'm sorry, I completely forgot that you wrote that part about your wife applying for citizenship. When she does become a citizen - you would then be able to apply for adjustment of status. BUT if USCIS places you in deportation proceedings because you are out of status first, then you would not be eligible for adjustment of status. Confused yet? This is the reason to contact an attorney in your situation.

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