i-539 denied afterI-485 pending

[bbcavalcanti]

I've applied i-130 (spouse of a lawful permanent resident) since March / 2017. I was admitted to the United States with a B1 / B2 visa in June 2017 and in December 2017 I applied I-539. In February 2018 I was seen available by the Visa Bulletin and I applied the Adjustment (i-485) in July 2018. I have already fingerprinted I-.485 and I-765.It happens that in November 2018 I received the notice of denial of the I-539 with 33 days to leave the country. My I-94 expired in December 2017. That is, the denial of the extension arrived after the application of the Status Adjustment. So, I am illegal and / or in an authorized period of permanence? Should I file a motion? If the motion is filed and pending, can I have I-485 approved or will it be denied when I-539 was pending? 
I will appreciate the above clarifications

[pontevecchio]

I would strongly urge you to just get a lawyer involved and get your IV by Consular Processing. 

[newacct]

On 11/22/2018 at 6:43 PM, bbcavalcanti said:

I've applied i-130 (spouse of a lawful permanent resident) since March / 2017. I was admitted to the United States with a B1 / B2 visa in June 2017 and in December 2017 I applied I-539. In February 2018 I was seen available by the Visa Bulletin and I applied the Adjustment (i-485) in July 2018. I have already fingerprinted I-.485 and I-765.It happens that in November 2018 I received the notice of denial of the I-539 with 33 days to leave the country. My I-94 expired in December 2017. That is, the denial of the extension arrived after the application of the Status Adjustment. So, I am illegal and / or in an authorized period of permanence? Should I file a motion? If the motion is filed and pending, can I have I-485 approved or will it be denied when I-539 was pending? 
I will appreciate the above clarifications

Your I-485 will be denied.

Adjustment of Status in your category (spouse of a permanent resident is in the F2A category, which is not in the Immediate Relative category) requires that you were in status at the time of filing I-485, and have never been out of status any time in the past. At the time you filed I-485, your previous status had already ended, and you just had a pending Extension of Status. Having a pending Extension of Status does not mean you have status. Therefore, your eligibility for I-485 depended on your Extension of Status being approved (and approved for a period of time that includes the date you filed I-485.)

Your Extension of Status was denied, and therefore, you were not in status at the time you filed I-485 and you were therefore ineligible for I-485. (It should be noted that B2 extensions of status are only for 6 months at a time, so if your status ended in December 2017, even if your first Extension of Status were granted, the status granted would not have lasted until July 2018 anyway, so it still would not have allowed you to file I-485 at the time you did, unless you filed a second Extension of Status during the first 6 months, and both Extensions of Status were approved.)

See Volume 7 Part B Chapter 3, section E-1 in the USCIS Policy Manual:
 

Quote

 

A foreign national may file an adjustment application after expiration of his or her nonimmigrant status while the foreign national’s timely-filed EOS or COS application is pending. In such cases, the officer should defer adjudication of the adjustment application until USCIS adjudicates the EOS or COS application so long as there are no other grounds for denial.

 

If USCIS ultimately approves the EOS or COS application, then the foreign national is considered to be in lawful immigration status on the date the adjustment application is filed. If USCIS denies the EOS or COS application, then the foreign national is generally considered to be in unlawful immigration status as of the expiration of the foreign national’s current nonimmigrant status and likewise on the date the adjustment application is filed. In this instance, the INA 245(c)(2) bar would apply, unless an exemption is available.

 

 

[pontevecchio]

Do you have a lawyer? Did you have a lawyer?