When is an Approved I-485 Not a Good Thing?
Posted Mar 24, 2006
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We at the Murthy Law Firm believe in sharing our experience with unusual and challenging cases for the benefit of others who may have similar problems. Of course, we do so only with the consent of the particular client/s involved. We recently obtained a successful resolution to a unique predicament. The case involved the approval of an I-485, Application to Adjust Status, at a time when the priority date was no longer current for the principal applicant, and thus, no visa number was immediately available to obtain his permanent resident status. As regular MurthyDotCom and MurthyBulletin readers know, I-485s cannot be approved unless an immigrant visa number is immediately available in the specific category. Thus, the I-485 was approved in error by the USCIS for this individual.
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Why Do Anything? Because One Cannot Rely on USCIS Error
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In this circumstance, why would anything be done if the I-485 was approved in error by the USCIS? Why not just leave well enough alone? First, as a general rule, one should not rely upon an error of the USCIS. This is true in a number of situations, including cases in which the USCIS gives extra time on the H1B without a proper legal basis. In the green card scenario, there is a risk that the USCIS may seek to rescind the wrongfully granted green card if and when they discover the mistake, or, even worse, may seek removal action against the individual. It could also create a problem for future cases for family members or when applying for naturalization to become a U.S. citizen, even if the USCIS opts not to take action against the individual before that time.
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H-4 Spouse Required to Maintain Dependent Status
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Second, in this particular case, the applicant's spouse had recently arrived in the U.S. in H-4 status. She was not able to file her I-485 application to adjust status to permanent resident, because the priority date was not current. It was, therefore, critically important that the primary applicant retain his H1B status so that his spouse could continue to legally hold her H-4 status. Once the I-485 was approved, the primary applicant was no longer in H1B status. Consequently, the spouse was no longer allowed to legally remain in the U.S. in H-4 status. While the primary applicant was technically a green card holder, the spouse was in a much worse position than she would have been if the principal just remained in H1B status.
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Safer to Address Issue Now with Existing Job Offer
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Third, this was an employment-based case. It depended upon a job offer. If the situation was ignored, it might not be possible to fix it in the future, as the job offer may no longer exist. It was far better to address the problem immediately, so that our client, hopefully, may one day end up with a green card that is proper and without potential problems.
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Solutions to the Problem : Help from AILA Liaison and a USCIS Officer
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We placed inquiries with the USCIS Service Center (SC) through the American Immigration Lawyers Association (AILA). In response, we received a letter from the SC, acknowledging that the USCIS approval of the I-485 was erroneous. The SC requested that the applicant mail back his green card, so that the approval could be rescinded. The applicant returned the green card to the SC. However, we did not hear from them. After approximately one month, we made an additional inquiry, and discovered that the file had been transferred to the local office for rescission.
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It was important to be sure that the local office understood the circumstances of this case. Most importantly, we required assurance that any action on their part would result in the couple being returned to the H1B and H-4 statuses that they held before the incorrect approval of the principal’s I-485. We did not want the approved green card to be rescinded without any further action on the part of the USCIS. What we did want was the rescission of the approval and the reopening of the I-485 for continued processing so that, when the priority dates do became current, the H-4 spouse will be able to file her I-485 and the principal’s I-485 can be correctly approved. It was critical that the applicant and his spouse be returned to their respective H1B and H-4 statuses, and the I-485 be reverted to pending.
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We contacted the local AILA Chapter Chair to find out the best way to reach the proper person at the local office. We were able to get the name and telephone number of the Adjustment Supervisor at the local office in question. That individual turned out to be incredibly helpful, and became personally involved in helping with a successful resolution of this case.
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Mutual Agreement for I-485 Rescission and Reinstatement of H1B/H-4 Statuses
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The Murthy Law Firm attorney was able to contact the USCIS officer directly (which is uncommon). Together the attorney and the USCIS officer came to a mutual agreement as to how the situation should be resolved. This would take two steps. The USCIS would move to rescind the I-485 approval and our firm would consent to the rescission on behalf of our client. The USCIS would reopen the I-485 via a Service Motion to Reopen (which means the Service acts on its own to reopen the case with no filing and no filing fee). This rescission of the approval and reopening of the I-485 automatically returned the applicant and his spouse to H1B and H-4 statuses. The USCIS officer also agreed with the attorney that the applicant in this situation was not to be placed in proceedings in connection with the rescission.
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Successful Outcome
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Thanks to the help of this USCIS officer who understood the potential for severe consequences resulting from this mistake, the situation was successfully resolved. As planned, the USCIS officer issued a "Notice of Intent to Rescind" the permanent resident status (green card). The Murthy Law Firm replied, agreeing that the erroneous approval should be rescinded, and that the USCIS would carry through with its agreed upon Service Motion and reopen the I-485, and the applicant and his spouse were, thereby, to be returned to H1B and H-4 status, respectively. Within a couple of weeks, the applicant received a letter from the local office confirming that the approval was rescinded, and that the I-485 had been reopened on Service Motion.
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I-485 Approval Not Always an Error
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We have seen another case at the Murthy Law Firm involving an I-485 approval after the priority date was no longer current. We were not certain whether that case was approved in error, or was just a delay in notifying the parties of the I-485 approval. In that situation, we were able to confirm with the USCIS that the actual approval had occurred several months earlier, when the priority date was still current, so that this I-485 approval was not erroneous, after all. For some reason, in this instance, it had taken the SC approximately four months to issue the approval notice.
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In the more recent case, however, we knew that this could not be the explanation because the applicant had responded to a Request for Evidence (RFE) after the priority date was no longer current. It was impossible, therefore, that the case could really have been approved at a time when the priority date was current. We believe it is best to clarify and resolve such matters in the long term interest of the client/s.
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USCIS Errors are Not Easy to Solve in Many Cases
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We would note that resolutions such as this are not simple. We were greatly aided in coming to a solution because we were working with a cooperative, accessible USCIS officer. Even with that, it did take several months. When cases involve a local USCIS office, the ease with which a situation can be resolved varies greatly depending on the policies and procedures of the particular local office and the individual officer concerned. We are very grateful to the USCIS officer in this case for her unparalleled cooperation.
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Conclusion
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We at the Murthy Law Firm recommend that, whenever an applicant receives any erroneous approval, s/he discuss the problem with a qualified, experienced immigration attorney. The goal should be developing the best strategy to resolve the situation for a successful, long-term solution for all concerned parties.