Murthy Success Story: USCIS Reopens I-485s Due to Extraordinary Circumstances / No Fault Posted19 Mar 2010
We are proud to share with our readers another successful case from the Special Projects Department at the Murthy Law Firm. This case came to us with a complicated immigration history. The complexities were created by errors made by immigration “consultants,” compounded by further errors of two attorneys who were used prior to the client’s hiring our firm. The result of all of these mistakes was that the individual fell out of status, and received a denial in response to his application for adjustment of status (I-485 form). Ultimately, we were able to overcome these problems and obtain the reopening of the I-485s filed on behalf of our client and his family. The Murthy Law Firm successfully submitted that this history fit within certain exceptions to the general I-485 filing requirements, due to the existence of exceptional circumstances beyond the client’s control.
We thank our client for trusting us with his and his family’s case, after years of bad experiences with immigration consultants and other lawyers. We appreciate his generosity in allowing us to share this story with MurthyDotCom and MurthyBulletin readers. Client information is never divulged without explicit consent of the client concerned.
I-485 Denied for Failure to Maintain Nonimmigrant Status and Problems of Prior Attorney/s
The individual initially consulted with the Murthy Law Firm at a time when his I-485 application was in pending status. However, he had experienced a series of problems with his H1B, and that status had expired well before the filing of his I-485 application. We identified the status lapse as a significant problem, since, with limited exception, it is necessary to have a valid nonimmigrant status at the time of the I-485 filing. We advised that it was also likely the I-485 would be denied.
We suggested trying to address the past status problems by filing a nunc pro tunc, or backdated, H1B. This potentially would have fixed the gap in status that created the problems for the I-485. This strategy has been used successfully by the Murthy Law Firm in the past, as described in our January 29, 2010 article, Murthy Success Story: Previously Denied H-4 Nunc Pro Tunc and I-485 Approved. Our client decided to wait to see what would happen to his I-485 application. As we anticipated and advised him, the U.S. Citizenship and Immigration Services (USCIS) denied the I-485s due to the failure to maintain status.
Earlier Consultant Errors Lead to Gap in Status
This client’s saga all began when his employer used a non-attorney service; these are generally known as immigration consultant companies. This particular organization filed an H1B extension petition for the employer. The USCIS mailroom rejected the H1B filing package several times for various filing errors, including incorrect filing fees (twice), and a lack of the required signatures. The USCIS finally accepted the H1B petition for filing. However, it was submitted without the required labor condition application (LCA). Consequently, USCIS sent a request for evidence (RFE) for the necessary LCA.
First Attorney Fails to Advise Client to Depart U.S. and Files MTR
An attorney, not associated with the Murthy Law Firm, was initially hired for the RFE response. The attorney responded with a newly certified LCA, obtained after the H1B was filed. The H1B petition was denied, as it was not supported by a valid LCA at the time of filing.
The same attorney filed a new H1B petition, which was later approved. But, since the foreign national had fallen out of status before this filing, the USCIS denied the petitioner’s request for an extension of H1B status. This meant that the H1B approval did not have an I-94 card attached to the approval notice, and the beneficiary was supposed to depart the U.S. and apply for an H1B visa stamp at a consulate abroad prior to returning to the United States. At the time the H1B was approved, the foreign national had fewer than 180 days of unlawful presence. Thus, a departure would not have made him subject to the three-year or ten-year bar on reentry.
Rather than directing this individual to leave the U.S. and apply for an H1B visa abroad, however, lawyer at that time filed a motion to reopen (MTR) the H1B denial of the extension of status (EOS). The attorney requested nunc pro tunc approval of the H1B extension request. The USCIS denied that MTR.
Second Attorney Makes Further Mistakes by Filing Appeal for EOS Denial
After receiving the denial, the petitioner hired yet another attorney to address his immigration case. This attorney filed an appeal to the Administrative Appeals Office (AAO), challenging the extension of status denial. The appeal was dismissed, since the AAO does not have jurisdiction over requests for changes or extensions of status.
The AAO also noted that there is no basis for arguing ineffective assistance of counsel regarding the failures of the immigration consultants. The arguments that are sometimes available when an individual is the victim of bad legal advice only apply to advice from licensed attorneys, not that of unlicensed consultants.
Separate from the H1B case, the individual’s employer was pursuing a permanent residence (green card) case on behalf of this foreign national. The labor certification and I-140 petition were approved. The application for adjustment of status (I-485) was filed after several rejections due to various filing errors. By the time of its proper filing, however, the H1B status had long since expired.
The Murthy Law Firm Helps Client and Files Motion to Reopen the I-485s
Eventually, as predicted, the pending I-485s were denied for failure to maintain nonimmigrant status. The status gap could not be remedied on a nunc pro tunc basis, as the USCIS previously had reviewed and denied this request several times. The deficient efforts by the prior attorneys to obtain this relief made the USCIS unwilling to reconsider the earlier decision. Thus, this avenue for relief, which has worked successfully in many other cases filed by the Murthy Law Firm, became more difficult and possibly unavailable to this client in his particular situation.
We knew that our client was a victim of bad legal advice and that he deserved help and favorable consideration. We explored the details of the exceptions to the general rule requiring maintenance of status prior to filing an I-485. We needed to find an exception in order to file an I-485 MTR.
Murthy’s Creative Use of No Fault of Applicant Provisions Based on Prior Lawyers’ Failures
Included in the limited exceptions to the need to maintain status prior to filing the I-485 is one that covers failures that are no fault of the applicant. This is a narrowly-defined exception, however. The section of the regulation we used only provides an excuse if the failure to maintain status is due to inaction of an individual (or organization) designated by regulation to act on behalf of the individual and over whose actions the individual has no control. It also requires that the inaction be acknowledged by the responsible individual or organization. The example given in the regulations is of a designated school official who fails to act properly.
Thus, this exception is limited to individuals or organizations responsible for immigration-related actions by regulation. One cannot, for example, ask one’s spouse to file the case and then use that failure as an excuse under this particular provision. Typically, this exception is not applied to errors by attorneys; so we had to find a way to do so.
The Murthy Law Firm argued that the attorneys were responsible, by regulation, after their entry of appearance. We pointed to provisions that attach responsibility to attorneys who have entered their appearances, and argued that was sufficient to meet the regulatory requirements. In order to meet the additional requirement that the responsible individual acknowledge his/her inaction, we contacted the first attorney. He ultimately agreed to sign a statement confirming certain portions of his responsibility. We filled in the missing pieces with copies of the case filings made by the prior attorneys in this case. We argued that these filings essentially spoke for themselves, confirming the failure to properly guide and represent the client. This ineffective assistance of legal counsel constituted the “inaction” portion required under the regulation. The Murthy Law Firm also asked the USCIS to exercise favorable discretion in this matter, given the ordeal suffered by the family.
Successful Result – USCIS Reopened Client’s I-485s
The USCIS granted our motions and reopened the I-485 applications. The cases remain pending once again, awaiting availability of visa numbers. This was good news for our client and his family, who had all suffered for several years due to not having understood the law and having used consultants and attorneys who did not explain the law and the legal ramifications of overstaying in the United States.
Conclusion: Use Knowledgeable Immigration Lawyers
We at the Murthy Law Firm are delighted with this positive outcome – achieving, with our clients in this case, a victory for the entire family. We offer this summary to demonstrate an alternative way to preserve a denied adjustment of status (or I-485) application when gaps in nonimmigrant status have occurred through the failure of an individual or organization responsible for the case. It is always important to understand the risks and options and work with knowledgeable attorneys who can help guide you and your family safely through constantly-changing interpretations of the law and the many complex rules. This case was complicated, and required multiple efforts and approaches to obtain a favorable outcome for our clients.
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