I-485 Reopened and Approved Based on Paroled Entry
Posted Oct 06, 2006
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Every so often, there is a case that reminds us why we, as immigration lawyers, have chosen to do what we do. We at the Murthy Law Firm recently received another victory for our clients with approval of a reopened I-485 case, turning around a situation that initially looked dire. The case began at our law firm as a simple eMail consultation. The individual wanted a second opinion on a series of immigration problems and a pending adjustment of status case that was not going well. In the end, one of our creative attorneys was able to find a solution and, teaming up with others at the Murthy Law Firm, filed a Motion to Reopen with a tight deadline. We succeeded in our Motion and the clients obtained their green cards, thanks to our creative and experienced lawyers, as well as the expedited processing of the case.
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History of this Immigration Problem
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Prior to the involvement of the Murthy Law Firm, this case had a long and problematic history. The case involved a beneficiary who had fallen out of status as an H-4 dependent when the H1B spouse's job ended. While the couple still had valid I-94 cards to demonstrate their H1B/H-4 statuses, both filed I-485 Applications for Adjustment of Status, based upon sponsorship of the H-4 spouse as a Schedule A occupation - a nurse. Unfortunately, the H-4 spouse had difficulty successfully completing one of the tests required for the Visa Screen Certification, which, in turn, is needed for I-485 approval. When it became clear that the nurse would be unable to complete and pass the test to obtain the Visa Screen in time to respond to the Request for Evidence (RFE), the couple withdrew their I-485s at the advice of their then lawyer.
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Re-Filed I-485 Appeared Procedurally Improper
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Immediately after withdrawing their I-485s, the couple re-filed new I-485s, as advised by their earlier counsel and based on the fact that the Schedule A I-140 petition, meanwhile, had been approved. The plan was that, this time, the nurse / spouse would be able to pass the required test. The nurse did pass the test. However, the re-filed I-485 was in trouble.
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The basic rule for filing an I-485 is that one must be maintaining lawful nonimmigrant status at the time the I-485 is filed. This couple had long-since allowed their nonimmigrant statuses to lapse, and had been relying upon their first I-485 as their basis for remaining in the United States. When they filed the second I-485, therefore, they did not meet the requirement of having valid nonimmigrant status. Neither did they fit within the provisions of 245(k) or 245(i), both of which allow the USCIS to approve the I-485, even with a lapse in status. The provisions under Section 245(k) of the Immigration and Nationality Act "forgive" a lapse of up to 180 days in employment-based cases. The broader 245(i) provision applies to cases filed on or before April 30, 2001, in which one was physically present in the U.S. on December 21, 2000. The USCIS noted these procedural defects in the filing of the second I-485s, and issued an RFE requesting proof of maintenance of lawful nonimmigrant status prior to the filing of the second I-485.
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Alternative of Consular Processing Not Palatable
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The case appeared doomed, as no such proof existed. We suggested possible consular processing options as an alternative to adjustment of status. This approach was also problematic, however, as the couple was hesitant to travel abroad and needed to work as well as maintain their positive relationship with the employer helping them with their green card processing. There was a slight risk of being subject to a 3- or 10-year bar to reentry for failure to maintain status, as well. There were arguments to be made, because they had filed the I-485s, but the situation was less than ideal. Moreover, even if the couple did not encounter a problem with the 3- or 10-year bar, the case was under Schedule A. As regular MurthyDotCom and MurthyBulletin readers know, the Schedule A visa numbers will run out soon; possibly even as early as November 2006. The case would then have ended up in the regular EB3 quota, which would have meant a long delay outside the U.S. while the couple waited for their immigrant visa numbers.
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Last Entry on "Advance Parole" Helpful
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With everything looking bad, the client divulged a helpful fact while discussing the case. The nurse / spouse had obtained an advanced parole based on the first I-485 filing. This advance parole was used to enter the U.S. shortly before filing the second I-485. This procedural difference meant that the second I-485 filing really was proper. Under a reading of the law, I-485s can be filed for people who are "admitted or paroled." While the nonimmigrant status had lapsed, this entry on the advance parole showed that the nurse / spouse's legal status was valid as a parolee at the time of the second I-485 filing. Thus, the second I-485 was filed while in a lawful status, though it was not the maintenance of lawful nonimmigrant status, which is most typical. The client was advised to relay this information to the law firm that filed the I-485 case.
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By the time we at the Murthy Law Firm had made this discovery, unfortunately, the other attorney had filed the RFE response, without addressing this important point. Since the argument of the paroled entry was not made in that response, the USCIS denied their I-485s. The couple decided to hire our firm to help them with filing a Motion to Reopen the I-485, and arguing for approval based upon the paroled entry.
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Motion to Reopen Successful Using Paroled Entry Argument
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Motions to Reopen I-485 denials must be filed within 30 days (or 33 days if the notice is mailed) of the date of the denial. After the initial attorney was unwilling to file the Motion to Reopen using our argument, we took on the case. The deadline was only a few days away at this point. The argument was simple. The case was denied because the nurse had not maintained nonimmigrant status. We showed that she did not need to maintain nonimmigrant status, as she had left the U.S. and returned on an advance parole prior to filing the second I-485 adjustment application. In the end, the Motion to Reopen was granted and the case approved.
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Conclusion
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Immigration laws are full of complex procedural nuances, where a seemingly minor change (such as the reentry on parole, in this case) can make the difference between receiving a green card and having to spend years abroad. Not every case has a solution; especially if the problems and issues have not been carefully analyzed or discussed in advance with a knowledgeable, experienced attorney.
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Our legal team was thrilled to be able to untangle this web of problems, come up with a facile, simple solution, and successfully gain approval of the Motion to Reopen for our clients, who were gracious and generous in expressing their appreciation. They have permitted us to share their story with MurthyDotCom and MurthyBulletin readers, in the hope that it might help others in similar situations to gain their green cards successfully.
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