Denied without appeal.
Abandoned.... by USCIS.
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.
Did the alien adjust from VWP? Better to simply re-file the AOS package and start from the beginning again.
I'm not familiar with all the acronyms yet.
She entered on a K-1/I-129F visa.
VWP= Visa Wiaver Program. K1? Then she should have a right to an appeal, unless she did not comply with the terms of the K1.
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.
Reading further, I'm glad I'm not spending the money for an appeal (the same amount it would cost to file a new I-485 application).
As it reads:
What Are the Processing Times on Appeals?
I – 485 LIFE Act Adjustment Application 18 Months
As the application hadn't been 18 months pending, it would be faster just to start over rather than filing an appeal.
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.
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.
It's not cheap, and it looks quite risky.
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