Two I-485s one denied and RFE on another

[Bleacherseat]

Hi All !

I am in a situation that I did not predict and I need some help and guidance in solving this. Here is my story.Your input is much appreciated.

With company A I have in EB-3 India - Priority Date : Dec 2004

Labor Approved: xx/xx/2004

I-140 approved: xx/xx/2004

I-485 : Pending since 2007

I got my EAD/AP in 2007 but never used them. I maintained my H1B through out for the last ten plus years. My current H1 is valid till end of 2013. I needed to maintain H1 primarily to keep my wife on H4. We were not married when my I485 was filed and hence she did not have EAD or AP.

I needed to get out of EB3 mess which company A had put me in despite a masters degree from US so I accepted another offer from company B on a condition that they sponsor my residency and I will join them immediately upon approval of my I485.

so with company B I have in EB2 India preference category with a priority date of Dec 2004 (through recapture)

Labor Approved: xx/xx/2011

I-140 Approved: xx/xx/2012 (Priority date Dec 2004 since I was able to port from EB3 to EB2)

I-485: Pending for last 4 months. (Yes a new I 485 was filed. My lawyer did not want to do the interfiling)

Four months ago, on the day we filed our second I-485 , I received an RFE on my first I-485 in the mail. Since RFE was issued 5 days ago , USCIS did not have an idea that second I-485 was being filed.

I was surprised to see the RFE on my first I-485 since it was filed in EB3-India and priority date was not even current. It seemed like USCIS had done the interfiling automatically for me with out my requesting it. It is just my speculation, I don't know what trigerred the RFE. RFE was looking for following:

1. An employment offer letter.

2. Translated copy of my birth certificate

3. Proof that I maintained my non-immigrant status in the country from xx/xx/2007 to xx/xx/2012.

2 and 3 were obvious. We debated who should provide the letter of employment - company A or B. Since I am still employed with A - I could do that. And of-course I plan to join the company B when my I-485 is approved. They were willing to provide that as well.

After much discussion with my lawyer and Belle (on this forum who is an expert) we decided to provide the letter from company B. Since that's who I plan to work after getting my green card. Also, I had declared my intent to work for company B by filing a new I-485. To us letter from company A at this stage made no sense.

Now it gets tricky.

My lawyer prepared the response emailed it to me in the morning and sent it by the evening to USCIS. Since I was in a all day working meeting I did not get to check my emails until that night. When I reviewed the response I discovered to my horror that lawyer made a mistake in #3 i.e proof of my non-immigrant status between 2007 and 2012. One of my H1 approval notice in that time period had in-correct validity dates. It was later fixed by USCIS and they sent an amended notice with right validity dates. Instead of sending the amended notice with correct validity dates my lawyer sent the one which had in-correct validity dates. Following morning, I called my lawyer to let him know of his mistake. But USCIS had already received the response by then. My lawyer also insisted that it is harmless mistake, he said that - "INA 245 (k) allows you to adjust if you have not been out of status for more than 180 days since you last entered the US" . He even mentioned that in his response to USCIS actually telling them that even though he is providing the proof the requested proof is not relevant per INA 245 (k).

Anyway, I insisted that he fix his mistake and he did by sending additional supplemental response to USCIS with the amended notice the very same day. (I called USCIS customer service and level2 IO told me to do just that)

My lawyer in his response also let USCIS know that I have another I-485 application pending and he requested that two applications be consolidated.

I thought I was all set.

On July 10, I found out that my old I-485 (filed in 2007 ) has been denied by USCIS and they have issued an RFE on my new I-485 (filed in 2012).

I am still waiting for the denial notice but I can not understand why would then deny my I-485. I also don't understand what they are looking for in the RFE they issued on my latest I-485 - everything was provided to them when the application was filed.

Thanks in advance for your insights.

Regards

[Belle]

Actually, the RFE on your second I-485 is probably driven by the fact that they doubt you were in status for the time they asked you about. Being in status is a lot more important before you file I-485 than after.

I am actually surprised the USCIS asked you prove your status while your I-485 was pending. You don't have to, as long as you were not employed illegally (and you had EAD, so that was not the case).

So, get the denial first. It may be because of USCIS confusion. Honestly, I would be against filing the second I-485. Then, address both the RFE and the denial. I would try to keep the old I-485 (file an appeal/MTR) and withdraw the later one. But it also depends on the denial ground and what the RFE is for. My recommendation is to get second opinion from a good lawyer before choosing the course of action.

[tkj1970]

I think you need to show I94 card as proof of legal presence - not approval notices

[Bleacherseat]

Belle !

Thanks for your response. The matter of the fact is second I-485 is filed. It was primarily driven by the fact that my wife was not able to file I-485 with me in 2007 and my lawyer (actually he is a corportae lawyer - works for company B) suggested that USCIS may not accept my wife's I-485 application and they may ask where is primary's application. This was happening right when Priority dates for India were about to become unvailable. So we were in a rush to file.

My personal thought is not to withdraw any of the applications. I am pretty sure that one can have two I-485 applications pending. I would like the consolidation as requested by my lawyer.

I am leaning towards - filing an MTR for the denied I-485. Then while responding to RFE on new I-485 , I will let USCIS know that an MTR has been filed for the first I-485 but we will withdraw it if the new I-485 is approved. I doubt if the consolidation will happen now.

It was a silly mistake on lawyer's part but the missing documenttaion was made available to USCIS in a day. I can't believe that they did not look at it. I will definetly get a second opinion from another lawyer before I do anything. I will also update this post when I get the denial notice and RFE.

[Bleacherseat]

Hi tkj1970!

I have been in US for 18 years - first 6 as a student and then later on H1B. I have had countless I-94s. But you have to surrender them when you leave the country. A copy of my latest I-94 when I last entered the country in 2010 (I haven't travelled out of US since) was provided to them. It would not have been enough to prove my status bewteen 2007 and 2012.

[tkj1970]

Hi tkj1970!

I have been in US for 18 years - first 6 as a student and then later on H1B. I have had countless I-94s. But you have to surrender them when you leave the country. A copy of my latest I-94 when I last entered the country in 2010 (I haven't travelled out of US since) was provided to them. It would not have been enough to prove my status bewteen 2007 and 2012.

I meant copies of I94. Anyway, hope everything goes well. Logically, there appears nothing wrong. Just the need of explanations. May be they transferred the RFE to the new I485.

[Bleacherseat]

More Drama !!!

Today I got the supposed I-485 denial letter. Actually it is not a denial, USCIS has sent me Acknowlegement of Withdrawal stating that service center acknowledges your receipt to withdraw this application. [i-485 shows as denied on their website]

The only problem -- well neither I or my attorney requested USCIS to withdraw my application.

My lawyer requested consolidation of the two applications. Why do they think we want to withdraw ?

And I am still waiting for the RFE.

Now I have more questions than answers.

I am thinking of the following to be super secure:

1. Open a MTR

2. Transfer H1 to company B. I can get validity until 2015.

3. Respond to RFE.

I know its lot of money but its better to be sure than deal with USCIS.

Belle : what are your thoughts? Please let me know.

Thanks

[Shurap1]

Seriously having two 485s makes no sense whatsoever. Feel free to spend more money.

[Belle]

Well, the only way they can "consolidate" two applications is to kill off one them. There you go and you are welcome.

Not surprised at all. Also, I take it, it is your earlier application that got withdrawn? Well, you have lost your original file date then (not sure it would be of imporatance, but it might).

Please wait for the RFE before you do something un-wise, ok?

[gpm3179]

Hi Bleacherseat,

 

I am right now in the same boat as you were a  year ago. My lawyer filed 2 485's and now I have an RFE on the old 485. We have never sent any consolidation requests etc. .. in my case, my old and new 485 were filed by different lawyers and I did not update the g-28 on the old 485 thinking that the old 485 will never be considered. Now, my question which address did you get the RFE on your old 485 on? Its been a week and none of my lawyers have received the RFE. Also, where are you finally with your GC application - did everything work out well with 2 485's and the denial etc. ? Any inputs from you will be helpful