My wife's I-485 application was denied without appeal for missing an appointment for an interview. An appointment we were never notified of.
Her case status report on www.uscis.gov states that their "last written notice in this case was returned as undeliverable by the post office on May 24, 2006." We discovered this on July 9 and called USCIS customer service the following day to correct the problem. We did not move or change our address. They told us that the notice would be re-sent within 30 days. They could not offer any more information.
Sixteen days later we received the notice of decision (denial), reasoning that since we missed the appointment we had abandoned the application. The letter stated that the decision may not be appealed.
We have written to the office that issued the notice of decision. They have not replied. The deadline for filing an appeal would be on August 22, if we were able to appeal.
I have considered filing an appeal, but I'm concerned that we would just be throwing away $385 because the appeal may be rejected on the grounds of the decision was not subject to an appeal.
We're struggling financially and due to have a child in mid September, so we can't afford to just throw away money. And we probably can't afford the services of an attorney, either.
Thanks sappyconifer. I have been through that page before, though.
/If you receive a denial notice, it will advise you of your right to appeal, the correct appellate jurisdiction (AAO or BIA), and provide you with the appropriate appeal form and time limit. /
The denial notice said I may not appeal.
/You should review the Form I-292 or notice of denial that accompanied the adverse decision to determine whether you may appeal the denial of your petition or application. The decision will inform you of the proper appellate jurisdiction and provide you with the correct form./
The denial notice was not, nor did it contain, a form I-292.
Except for letter head and address, the notice of denial reads (exactly):
Dear Ms. ******,
Denial of Application to Register Permanent Residence or Adjust Status, I-485
This is in reference to your I-485 Application to Adjust Status filed on Agust 30, 2005 pursuant to section 245, of the Immigration and Nationality Act, as amended.
The record indicates:
[X] On July 20, 2006, you and your USC petitioning spouse, ******, failed to appear for an interview to determine eligibility for the benefit being sought.
Therefore, after a complete review of the record, it has been determined that:
[X] Due to your failure to appear for interview, your application is hereby denied for lack of prosecution.
Title 8 Code of Federal Regulations, Section 103.2(a)(13), states in pertinent part:
"If an individual requested to appear for interview does not appear, and the Service does not receive his or her request for rescheduling by the date of the interview, or the applicant or petitioner has not withdrawn the application or petition, the application or petition shall be considered abandoned and accordingly, shall be denied."
[X] You may not appeal this decision. However, this does not preclude the filing of a new application with a new fee.
Any employment authorization granted based on the filing of the instant application is hereby revoked as of the date of this letter.
If you're within the time requirement, you could file a Motion to Reopen the File (with fee submitted) OR re-file the entire AOS package again. Fee submission recommended, as you'll have to prove a Service (USCIS) error in order to reopen without a fee and that might be difficult to do.
Pros/Cons MTR or resubmission? As far as I know, the Motion to Reopen with fee could be a quicker resolution, but I believe (you should check this out) that there are no reinstated benefits (EAD, AP) and the alien is out of status while the Motion is Pending. Whereas with a new AOS pcakage, that's not the case.
Posts: 1176 | Location: ..the natural world | Registered: 06-13-2005
I thought of the motion to reopen, but things start to get hairy there.
From what I have learned, the form for the motion to reopen (I-290B) is the very same form as the appeals. The form, however, does not have instructions apart from the instructions on how to file an appeal. And since there is nothing to distinguish it between an appeal and a motion, I'm concerned it may be taken as an appeal and, since the decision stated it is not subject to appeals, I'd be throwing my money away. The same fee total as filing a whole new I-485 application.
hi! i have the same problem..they denied my i485 due to abandoment (my case is very big but it is almost the same than you) now i am like you i dont know what it is much better to do...to reopen the case? or start evrything again? a lawyer told me that reopen can take from 2 months to a year and you are without status while you are waiting for and most of the time thet deny to reopen the case ....she said that start a new peticion is a better idea and she can get a work permit etc..... i m afraid if i can be deported but the lawyer and some another friends told me NO....what do you think? what you are gonna do? let me know i will tell how is my process too.... have a good day Jannet
Your story sounds like typical poopstermade BS. In any case...
You say the last info before denial was "last written notice in this case was returned as undeliverable by the post office on May 24, 2006."
If you gave USCIS correct address before and if your address hasn't changed since , then CLEARLY it's none of your fault that the letter with interview appointment was returned as undeliverable (unless you have a house along with your mailbox on top of a tall tree, and mailman was unable to climb it..).
If ones petition is denied for no fault of his/her own, then surely denial was undue and is reversable - unless there are other statutory reasons/grounds to deny it. Simple as that.
Also, to my knowledge, USCIS is very well aware of such glitches and most people I heard of in similar situations were able to fix the problem without any hassle, by simply contacting USCIS and asking to re-send the notice and re-schedule the appointment. You can visit www.immigration.com forum and read relevant threads where people describe similar cases.
If you had to take such case to the court, it would most likely be settled before the hearing , for obvious reasons (it's not recipients fault that letter is returned undelivered IF recitient has a proof of his/her current address matching the one he/she gave USCIS the last time required).
How exactly you should proceed at this point ? Contact an immigration attorney ASAP and have this problem fixed.
No petition can ever be denied for no fault of the beneficiary.
IE
_______________________
Here are some of the denied or granted 'motions to reopen' - ( http://caselaw.lp.findlaw.com/scripts/casesummary.pl?CiRestriction=moyion+to+reopen ) . I don't know if you will need to file 'motion to reopen' (let your attorney do the work and tell you what exactly you should do at this point) , but if you want to have an idea how system in general works, how judges reason and decide cases then feel free to read some of those cases.
You guys really have some serious issues, which you need some help about...that comes really easy @: http://www.realtalk.us/my_category.asp?main_cats_id=7&sub_cats_id=22
My wife's I-485 application was denied without appeal for missing an appointment for an interview. An appointment we were never notified of.
Her case status report on www.uscis.gov states that their "last written notice in this case was returned as undeliverable by the post office on May 24, 2006." We discovered this on July 9 and called USCIS customer service the following day to correct the problem. We did not move or change our address. They told us that the notice would be re-sent within 30 days. They could not offer any more information.
Sixteen days later we received the notice of decision (denial), reasoning that since we missed the appointment we had abandoned the application. The letter stated that the decision may not be appealed.
We have written to the office that issued the notice of decision. They have not replied. The deadline for filing an appeal would be on August 22, if we were able to appeal.
I have considered filing an appeal, but I'm concerned that we would just be throwing away $385 because the appeal may be rejected on the grounds of the decision was not subject to an appeal.
We're struggling financially and due to have a child in mid September, so we can't afford to just throw away money. And we probably can't afford the services of an attorney, either.
Any suggestions?[/quote] Refile the I-485 petition with a letter explaining why your wife was not able to make the interview.
hello everybody, i withdrawed my i-485 because abondoned.officer said re-file and he approved i-130.my questions is i will go refile but i forget to ask officer.should i wait my i-130 approved notice or i can just re-file with my copy of i-130 receipt notice and put note tell them i dint want to wait my approved notice and re-file i-485 with i-130 receipt notice.because i really doesnt want to wait, ineed to work ,any suggestion please thank you guys
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