Murthy Success: I-485 Approved Based on “Approvable When Filed” Argument

The Murthy Law Firm is pleased to report on the recent, hard-fought approval of another I-485 adjustment-of-status (commonly, “green card”) application. Represented by another law firm for the I-485 filing, the individual in this case engaged the Murthy Law Firm after he received a notice of intent to deny (NOID) from the U.S. Citizenship and Immigration Services (USCIS) on his pending I-485 application. He had been out of status for more than 180 days at the time of filing the I-485 application. The client hoped that his case could get approved under INA 245(i), which allows a qualifying applicant’s I-485 application to be approved if the earlier I-140 petition was “approvable when filed” and meets all of the criteria for 245(i) eligibility.

We extend our gratitude to the client in this case, who graciously granted permission for the Murthy Law Firm to share this overview for the benefit of others. All client information is confidential and we do not share examples unless the client gives the Murthy Law Firm explicit permission to do so.

Eligibility Criteria for 245(i) Benefits

Generally, a nonimmigrant who fails to continuously maintain lawful status, or commits other immigration violations, is not eligible to adjust status from within the United States. Instead, the person typically must apply to obtain the green card via consular processing. As with many immigration rules, however, there are exceptions to this general ban. One exception to this rule is INA 245(i), which allows the USCIS to approve an I-485 application filed by an individual who otherwise is ineligible to adjust status if a $1,000 penalty fee is paid and the applicant meets certain criteria.

To qualify under INA 245(i) the applicant must be the beneficiary of an immigrant petition, including form I-130 (petition for a relative); form I-140 (petition for a worker); form I-360 (petition for an Amerasian, widow/er, or special immigrant); or form I-526 (petition for an entrepreneur), that was filed on or before April 30, 2001, or be the beneficiary of an application for labor certification filed with the U.S. Department of Labor (DOL) on or before April 30, 2001. Also, if the immigrant petition or labor certification was filed after January 14, 1998, the applicant must have been physically present in the United States on December 21, 2000.

In addition, to qualify for the 245(i) exception, the petition or labor certification must have been properly filed and approvable when filed.

It is important to note that a nonimmigrant using the 245(i) exception is not required to apply for a green card on the basis of the immigrant petition or labor certification filed on or before April 30, 2001. So even if a person, such as our client, files an I-485 application based on a more recent I-140 petition, that individual may still qualify for the 245(i) exception based on also having an I-140 (or other qualifying application or petition) filed on or before April 30, 2001.

Background of the Case

Prior to retaining the Murthy Law Firm, the foreign national in this case first entered the United States in 1998, and began working for his employer in L1A status in 1999. His employer then filed an I-140 immigrant petition for him under the employment-based, first preference (EB1) multinational executive or manager category on April 19, 2001, which was denied a year later. In 2002, he changed employers, and the new employer filed a labor certification application for him under the employment-based, third preference (EB3) category. Once it was approved, the employer filed an I-140 petition, which was also approved. He then filed an I-485 application on the basis of that approved I-140 petition. However, at the time of filing his green card application, he had been out of status for more than 180 days.

USCIS Basis of NOID: Prior Filing Not “Approvable When Filed”

When he filed his I-485 application, he argued that, although he had failed to continuously maintain his nonimmigrant status, he met the requirements of 245(i): he had been physically present in the U.S. on December 21, 2000; an I-140 was filed for him before April 30, 2001; and his I-140 was properly filed and approvable when filed.

As discussed above, the fact that his I-485 was filed based on a labor certification and I-140 filed after April 30, 2001 was not a problem. He could still qualify for the 245(i) exception based on the earlier EB1 I-140 petition filed on his behalf.

The USCIS, however, issued a NOID on the I-485 application based on a different issue. The USCIS argued that he did not qualify for 245(i) protections because the EB1 I-140 petition was ultimately denied, it therefore was not approvable when filed. It was at this point, after the issuance of the NOID, that this individual retained the Murthy Law Firm to represent him.

Murthy Argues “Approvable When Filed” Means “Meritorious in Fact”

In response to the NOID, the Murthy Law Firm attorneys used case law and USCIS policy to argue that an immigrant petition can be approvable when filed, even if the petition is ultimately denied. More specifically, we argued that approvable when filed means that a petition must be “meritorious in fact,” regardless of whether or not the petition is actually approved. While the phrase “meritorious in fact” is fairly vague, we explained that case law has linked the concept closely to that of being non-frivolous.

USCIS Agrees with Murthy Law Firm and Approves the I-485s

We also argued that our client had been working pursuant to an approved L1A petition at the time the EB1 petition was filed. And, while the criteria for L1A and the EB1 category for multinational executives and managers are not identical, the requirements are very similar. We therefore contended that the EB1 I-140 petition met the “approvable when filed” requirement, and that this meant our client was entitled to the protections offered under 245(i).

The USCIS agreed with our interpretation of the relevant case law, and a decade after our client filed his original green card application, it finally was approved for him and his family.

Conclusion

We at the Murthy Law Firm are thrilled that we were able to obtain this hard fought approval for our client, who, along with his family, can now finally call the United States their permanent home. This case demonstrates how nuanced areas of the law can have a direct impact on the success of any case. More importantly, the decision by the USCIS to issue a NOID in this case highlights that, even in situations where the USCIS intends to deny an application or petition, there may be legal tools available to still get one’s case approved.

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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