Murthy Attorneys Succeed in Getting I-485 Denial Reversed, Green Card Issued13 Jul 2016
The Murthy Law Firm is pleased to report that we were recently successful in reversing a denial issued on an adjustment of status (form I-485) application, leading to our client being issued her long-awaited green card. The applicant faced significant challenges due to a problematic and complex status history. More specifically, the U.S. Citizenship and Immigration Services (USCIS) revoked her H1B petition and determined that the revocation applied retroactively. This meant she had been out of status for a significant period of time, making her I-485 application unprovable. The applicant contacted the Murthy Law Firm to help her find a way overcome this problem.
Background: Revocation of H1B Petition Leads to I-485 Troubles
At the time the I-485 was filed, the applicant was working based on an approved H1B petition. Although the H1B petition was not directly related to the I-485 filing, complications that subsequently arose with the H1B are what led to denial of the I-485 application.
After filing the I-485, the USCIS determined that the H1B petition has been approved in error and issued a notice of intent to revoke (NOIR). Her employer attempted to address the problem with a new H1B filing, but these efforts were ultimately unsuccessful and the H1B petition was revoked. Worse still, the USCIS interpreted the H1B revocation as being retroactive, meaning that the USCIS deemed the applicant to have been out of status since before the I-485 application was filed.
Exception to General Rule Requiring Valid Status to File I-485
Generally speaking, an I-485 can only be approved if the applicant is in valid nonimmigrant status at the time of filing. As explained in the MurthyDotCom InfoArticle, Green Card Possible After Status Violation: 245(k) Benefit, section 245(k) of the Immigration and Nationality Act provides an exception that allows an I-485 to be approved in employment-based cases as long as the applicant has not been out of status for more than 180 days. However, because the USCIS applied the H1B status violation retroactively, the applicant in this case was determined to have been out of status for more than 180 days, resulting in the I-485 being denied.
Murthy Argues that H1B Revocation Should Not be Applied Retroactively
Following denial of her I-485, the applicant hired the Murthy Law Firm to represent her in challenging this decision by the USCIS. Attorneys at the Murthy Law Firm determined that the strongest argument in favor of reversing this denial was to attack the retroactive application of the H1B revocation. USCIS regulations do not indicate whether the revocation of a nonimmigrant petition applies retroactively. In contrast, USCIS regulations specifically require the revocation of an immigrant petition, such as an I-140, to be applied retroactively to the date the petition was initially approved.
While the regulations are silent on the matter, in practice, we knew that the USCIS does not generally consider the revocation of a nonimmigrant petition to apply retroactively. If the USCIS did interpret the regulations in that way, it would create status problems for a great many nonimmigrants in all manner of situations. Our legal team conducted extensive research, citing case law and other legal sources that countered the USCIS decision to apply the H1B revocation retroactively in our client’s case.
USCIS Reopens Case, Issues Green Card
In the end, the USCIS recognized that the decision to apply the H1B revocation retroactively was made in error. This meant that our client was protected under 245(k), allowing the I-485 to be approved.
We are thrilled that our client is now, finally, able to truly call the United States her permanent home. This case demonstrates how one’s nonimmigrant status can have a direct impact on a green card case. But, a more important takeaway here is that immigration law is complex and the USCIS gets it wrong from time to time. The U.S. immigration system is designed to provide stakeholders with means of challenging decisions and legal interpretations made by the USCIS and other governmental entities involved in the immigration process.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining his/her express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.
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