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Form I-485

Case type: Allegations of fraud. US Citizen’s Spouse. Visa Waiver (Visitor) entry.

Category: Adjustment of Status, Form I-130, Form I-485, ESTA, Fraud/Misrepresentation, Waiver, Engineers
Status: Green Card AOS Approved

We have received a particularly remarkable green card approval a few weeks ago.  USCIS alleged fraud and denied the green card where the spouse of a US citizen had entered the US on visa waiver and then applied for Adjustment of Status (AOS) within a few days after entry.

We were retained once the green card had been denied.  The allegations of fraud or misrepresentation are particularly troublesome because they operate as a PERMANENT bar against immigration.  There is a narrowly tailored waiver available, but it can be difficult to obtain.

We filed a Motion to Reopen the denied AOS and applied for a new AOS with the waiver request.  Here comes the tricky part -- the waiver request form requires us to concede that we have committed fraud.  That was untrue.  Our clients had acted innocently.  USCIS was of the opinion we must checkmark the box on the waiver form that admits to fraud.   I refused to permit that.  The reason: if we admit fraud under penalty of perjury, and that admission is false; would that admission not amount to perjury and perhaps fraud?

We were willing to take this matter to court.  We had sufficient evidence on the record indicating innocence.  To our relief, USCIS approved the AOS without further inquiry.

PS Note that entering the US on any short term visa (except K visas and dual intent visas like H-1, L-1, etc. – I have a blog entry on what are dual intent visas) and trying to convert to a long term visa or green card can be viewed with suspicion by USCIS.

From: Rajiv.

Click HERE to watch a video on this discussion.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

Policy Memorandum on Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program

This policy memorandum (PM) provides guidance on the adjudication of Form I-485, Application to Register or Adjust Status, filed by immediate relatives of U.S. citizens who were last admitted under the Visa Waiver Program (VWP). This PM updates the Adjudicator’s Field Manual (AFM) by adding a new section (j) to Chapter 10.3 and 23.5 (AFM Update AD11-30).

For more details on the memorandum please click the attachment

Employment - Based I-485 Pending Inventory Updated

The “Pending Employment-Based Form I-485 Report,” displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.  You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own.  Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

Please click here to view the updated chart

http://www.immigration.com/chart-all-employment-based-i-485-pending-inventory<</p>

Extension of Validity of Medical Certifications on Form I-693

This policy memorandum (PM) temporarily extends the validity of civil surgeon endorsements on Form I-693 for adjustment of status and temporary residence applicants.This PM updates the Adjudicator’s Field Manual (AFM) by revising Chapter 40.1(c), (AFM Update AD 13-13). The guidance contained in this PM is controlling and supersedes any prior guidance on the subject.

Click the attachment to read more about the memorandum.

Ability to Pay

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

3. USCIS says that, in this situation, the new employer does not have to demonstrate the ability to pay during the entire period.  Once the Form I-485 has been pending for 180 days, the applicant may port and present evidence.  If AC-21 portability requirements are met, the dissolution or withdrawal of the I-140 petition (after the 180-day point) by the former employer does not affect portability.

4. USCIS does not specifically address why it will not accept prorated net assets as sufficient evidence to support ability to pay.  Prorating is not provided for in any policy, regulation, or statute.  Therefore, only current assets should be included in the calculation.

5. According to USCIS, the Yates Memo will apply only in respect of ability to pay. The adjudicating officer will look at the rate paid and not the total amount paid.  It is the petitioner’s burden to demonstrate that the rate that is being paid is an appropriate increment to the proffered wage.

Locating A Long-Pending I-485 Application and Priority Dates

1. According to USCIS, if you have an old I-485 that has been transferred multiple time and you do not know where the case is, you should call USCIS.  It is advisable to follow up in case no useful answer is forthcoming.  USCIS aims to keep close control over its case inventory and tracks cases to make sure all the parts stay together and get adjudicated together.

It is also important for the attorney of record (using Form G-28) and the applicant (using Form AR-11) to keep USCIS apprised of any changes of address.

2. According to USCIS, it is not advisable to send an email, because there is a system to identify these cases.  However, one may contact USCIS if the priority date has been current for more than 30 days and no action has been taken on the case.

Case type: AC-21, I-485 Denial Reversed

Category: AC21 AOS Portability, Form I-485
Status: MTR granted / Case reopened

We represented a Computer Software Engineer and his spouse. USCIS denied the applicant’s Form I-485 because his former employer withdrew his previously approved I-140 petition when the applicant moved to a different employer. The employer and their lawyer refused to provide any information regarding the filing.  So we were constrained to obtain the relevant information directly from the government.  Once we received our client’s job description with his former employer, we were able to assess the applicant’s AC-21 porting eligibility.   Based on this information, we filed a motion to reopen and reconsider the I-485, explaining that the applicant’s I-485 should not have been denied, considering his eligibility for AC21 portability. USCIS agreed, vacated the denials, and reopened the case.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

USCIS Publishes Policy Memo on Acceptance of Diversity Visa-Related I-485 Applications During the Advanced Notification Period Reflected in the Visa Bulletin

  • USCIS policy memo indicating that the listing of the advance notification of Diversity Visa (DV) availability in the Visa Bulletin enables the filing of DV adjustment applications with DV numbers ranked below the specified cut-off number, even though a visa is not yet available.
  • Pleae check the attached Policy memo.

Pending Employment-Based I-485 Inventory Updated

Please visit this link for the updated Chart for all Employment - Based I-485 Pending Inventory

http://www.immigration.com/chart-all-employment-based-i-485-pending-inve...<</a>

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