Status during MTR or appeal at AAO

[ags123]

I am analyzing a few scenarios to plan ahead and had a question on status during an MTR filing and an AAO appeal.
In the form I-290B looks like there are several options but mainly looks like
a) Appeal at AAO
b) Motion to reopen

From all the web research I see that the AAO appeal process takes 8-14 months for I-485.
If on 1 Dec 2009 the pending EB I-485 gets denied. Then an appeal is filed on 2Dec2009 which gets logged in say on 4Dec2009. What is the status of the alien from 4 Dec2009 till the appeal decision is made in 8 to 14 months ? is it counted as unlawful? Also does it depend on whether appeal gets denied or approved?

In this situation assume:
a)I-140 is approved and I-485 is pending for more than 6 months
b) alien is laid off and no similar job has been found.
c) alien ports to self employment but has no clients as its a new business at the time of I-485 denial. Uses the yates memo and self employment as basis for appeal.

[ags123]

If anyone has any experience with this please post as it will help me plan,
Thanks

Question: Does an alien stop acruing unlawful presence after filing I-485 denial appeal at the AAO?

[ind_game]

If anyone has any experience with this please post as it will help me plan,
Thanks

Question: Does an alien stop acruing unlawful presence after filing I-485 denial appeal at the AAO?


Check this latest memo released on May 6th.

http://www.uscis.gov/files/nativedocuments/revision_redesign_AFM.PDF

check page 6.

(3)
(D)
(vi)

[ind_game]

Check this latest memo released on May 6th.

http://www.uscis.gov/files/nativedocuments/revision_redesign_AFM.PDF

check page 6.

(3)
(D)
(vi)


Your scenario is specifically on page 37. Read the whole bullet point of (vi). It looks like if AAO rules in your favor you would not accrue any unlawful presence, otherwise you will.

[chanduv23]

Check this latest memo released on May 6th.

http://www.uscis.gov/files/nativedocuments/revision_redesign_AFM.PDF

check page 6.

(3)
(D)
(vi)

Excellent find - thanks. This piece will give relief to so many people who are worried about changing jobs using EAD after AC21

[chanduv23]

Excellent find - thanks. This piece will give relief to so many people who are worried about changing jobs using EAD after AC21

The meaning of retroactive means - once the case gets reopened after MTR or AAO then your unlawful presence counter will revert back to "zero" - folks correct me if my interpretation is wrong

[ags123]

Your scenario is specifically on page 37. Read the whole bullet point of (vi). It looks like if AAO rules in your favor you would not accrue any unlawful presence, otherwise you will.

Thanks for the reply, I had checked this before posting. However this is for extension of status(EOS) or change of status(COS) of non immigrant status.

I-485 being adjustment of status to permanent residence the AAO appeal cant be similar to a EOS/COS nonimmigrant visa situation.

In the entire 51 pages I dont think this situation is addressed for I-485 denial appeal, Please let me know if this is not correct.

Thanks

[ind_game]

The meaning of retroactive means - once the case gets reopened after MTR or AAO then your unlawful presence counter will revert back to "zero" - folks correct me if my interpretation is wrong

That is correct..........key sentence "The alien will deemed to have not accrued unlawful presence"

[ind_game]

Thanks for the reply, I had checked this before posting. However this is for extension of status(EOS) or change of status(COS) of non immigrant status.

I-485 being adjustment of status to permanent residence the AAO appeal cant be similar to a EOS/COS nonimmigrant visa situation.

In the entire 51 pages I dont think this situation is addressed for I-485 denial appeal, Please let me know if this is not correct.

Thanks

Check this link:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5baa6138f898d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=4f719c7755cb9010VgnVCM10000045f3d6a1 RCRD


The Immigration and Nationality Act (INA)1 permits change of an alien's immigration status in the United States (US) from nonimmigrant or parolee (temporary) to immigrant (permanent) if the alien was properly admitted or paroled into the US. The term for a change from temporary to permanent status is adjustment of status. The term change of status refers to a change from one temporary classification to another.


So, AOS is not COS even though there is a change in status........mhmhhm.......

[ind_game]

Thanks for the reply, I had checked this before posting. However this is for extension of status(EOS) or change of status(COS) of non immigrant status.

I-485 being adjustment of status to permanent residence the AAO appeal cant be similar to a EOS/COS nonimmigrant visa situation.

In the entire 51 pages I dont think this situation is addressed for I-485 denial appeal, Please let me know if this is not correct.

Thanks

I agree with you that Adjustment of Status(AOS) is not specifically mentioned any where related to AAO appeals.
But it is apparent that as soon as I-485 is denied alien will start unlawful status immediately. As far as me I have already accrued three months with my two MTRs.

[axp817]

As far as me I have already accrued three months with my two MTRs.

But now that your 485 has been re-opened, doesn't that mean that your unlawful presence counter is back to 0? Or do those 3 months stay on your record, and ADD to any unlawful presence that you might accrue in the future were your 485 to be denied again? I certainly hope not.

[ind_game]

But now that your 485 has been re-opened, doesn't that mean that your unlawful presence counter is back to 0? Or do those 3 months stay on your record, and ADD to any unlawful presence that you might accrue in the future were your 485 to be denied again? I certainly hope not.

My I-485 is still not open. It is still in denial status.......The counter has to go back to 0 as soon the case status changes to open and pending.......

[axp817]

My I-485 is still not open. It is still in denial status.......The counter has to go back to 0 as soon the case status changes to open and pending.......

Lets hope it does, very soon. Do let us know when that happens.

Godspeed.

[EB3_SEP04]

The meaning of retroactive means - once the case gets reopened after MTR or AAO then your unlawful presence counter will revert back to "zero" - folks correct me if my interpretation is wrong

small correction: unlawful presence counter will revert back to "zero" UNLESS you had unlawful presence prior to the day the 485 was denied :)

[EB3_SEP04]

My I-485 is still not open. It is still in denial status.......The counter has to go back to 0 as soon the case status changes to open and pending.......

ind_game thanks for providing the link to the memo.
BTW, do you know if there is a way to check the unlawful presence balance?

[ind_game]

Lets hope it does, very soon. Do let us know when that happens.

Godspeed.


Thanks a lot for your wishes.........I will keep you guys posted......

[EB3_SEP04]

OP, not sure if you have received all the info you needed, but here is my experience if it helps deciding MTR vs AAO appeal :

485 Denied : 9/30/08
MTR filed : 10/30/08
485 Reopened: 12/11/08

Here's the text of the USCIS letter:

DECISION
Reference is made to the Notice of Appeal or Motion (form I-290B) filed on Oct 30, 2008. You are seeking to reopen/reconsider the decision rendered by USCIS on Sep 30, 2008 denying an application of adjustment of status filed by you.

The motion as submitted has been reviewed. It meets the requirements of Title 8 code of federal regulations, $ 103.5 concerning the proper filing of a motion. Accordingly, the request to reopen/reconsider the previous decision will be and is hereby granted.

IT IS ORDERED that your I-485 application be reopened.

Sincerely,
F Gerard Heinauer
Director

[EB3_SEP04]

Thanks for the reply, I had checked this before posting. However this is for extension of status(EOS) or change of status(COS) of non immigrant status.

I-485 being adjustment of status to permanent residence the AAO appeal cant be similar to a EOS/COS nonimmigrant visa situation.

In the entire 51 pages I dont think this situation is addressed for I-485 denial appeal, Please let me know if this is not correct.

Thanks

Even if the doc does not specifically mention AOS or 485, i think the central idea is that you do not accrue unlawful presence since the denial was wrongful in the first place(in my case 485 was (wrongfully) denied when prev emp revoked my approved 140). And i think applies to ANY case. it also makes sense that USCIS resets the counter ONLY IF the case has been reopened because they don't want people abusing the MTR/appeal process just to buy some time in the country when the original denial is right.

[ags123]

Thanks Eb3_sep04 your post helps. I just wish in the july bulletin the 05 date comes thru and this issue gets resolved ;).