J646
11-23-2007, 02:23 AM
***I just now realized this may be the wrong subsection, please move or let it slide lol, sorry ****
I have a rather complicated situation so if you'd like to take a crack at it, read below (I apologize if this is the wrong forum).
Some years ago my father was being sponsored through work, a case that fell apart due to a complete mishandling of our case (on purpose might I add) but it at least resulted in my family being covered by 245i.
In 2003 my mother (covered by 245i through my father) won the DV-2004 lottery. We had filed a case on the basis that as a person covered by 245i she was eligible to adjust status within the US.
Their decision reads as follows:
You indicated on your I-485 that you are out of status. You provided as evidence of eligibility for 245i a copy of your spouse's, -----, labor certification that was filed ------. You are applying as a principal applicant and not as an accompanying or following to join applicant. You cannot categorize yourself as a "beneficiary" and, as such, are not grandfathered for 245i purposes.
-----
This decision may not be appealed. If you believe the law was inappropriately applied or the analysis used in reaching your decision was inconsistent with information provided or with precedent decisions, you may file a motion to reconsider. If you have new or additional information which you wish to have considered, you may file a motion to reopen.
Our lawyer filed a motion to reconsider saying that my mother was eligible to adjust in this way.
This motion was denied writing:
Section 245i defines the term "beneficiary" to include a spouse or child 'eligible to receive a visa under section 203d of the Act'. This applies to spouses or children 'accompanying or following to join' the principal alien. Both citations acknowledge that you must apply as the beneficiary of a principal alien. You need not adjust at the same time as the principal but you must be a "beneficiary" and not a principal applicant.
And so on, all this might I add with typing errors that quite frankly might reveal lots about the writer of that letter.
Our lawyer sent a letter to them citing the legal principle of "alien based reading" of 245i that stated "relatives of alien grandfathered for 245i are entitled to grandfathering as well, EVEN IF they have their own, different, new basis for adjustment of status" and suggested they consult the BICE Counsel and change their decision.
At this point our lawyer told us that they didn't accept this explanation and explaining to us (whether truthfully or not I don't know) that all the decisions were made by one problematic person at (back then) INS who would not reverse her own decision because it would imply she was wrong (again this may be bs but that's what he said).
My questions are:
Is there something that I am not understanding here? Was our lawyer wrong in that my mother for some reason can't adjust in this way?
If you don't see any errors is there ANYTHING we can do? Our lawyer said there isn't. Is there any court that can review this?
I realize this was a few years ago. My parents felt really bad about this especially given the "it's 100% sure" attitude of our lawyer. I would really, honestly appreciated your opinion on this issue. Thank you.
I have a rather complicated situation so if you'd like to take a crack at it, read below (I apologize if this is the wrong forum).
Some years ago my father was being sponsored through work, a case that fell apart due to a complete mishandling of our case (on purpose might I add) but it at least resulted in my family being covered by 245i.
In 2003 my mother (covered by 245i through my father) won the DV-2004 lottery. We had filed a case on the basis that as a person covered by 245i she was eligible to adjust status within the US.
Their decision reads as follows:
You indicated on your I-485 that you are out of status. You provided as evidence of eligibility for 245i a copy of your spouse's, -----, labor certification that was filed ------. You are applying as a principal applicant and not as an accompanying or following to join applicant. You cannot categorize yourself as a "beneficiary" and, as such, are not grandfathered for 245i purposes.
-----
This decision may not be appealed. If you believe the law was inappropriately applied or the analysis used in reaching your decision was inconsistent with information provided or with precedent decisions, you may file a motion to reconsider. If you have new or additional information which you wish to have considered, you may file a motion to reopen.
Our lawyer filed a motion to reconsider saying that my mother was eligible to adjust in this way.
This motion was denied writing:
Section 245i defines the term "beneficiary" to include a spouse or child 'eligible to receive a visa under section 203d of the Act'. This applies to spouses or children 'accompanying or following to join' the principal alien. Both citations acknowledge that you must apply as the beneficiary of a principal alien. You need not adjust at the same time as the principal but you must be a "beneficiary" and not a principal applicant.
And so on, all this might I add with typing errors that quite frankly might reveal lots about the writer of that letter.
Our lawyer sent a letter to them citing the legal principle of "alien based reading" of 245i that stated "relatives of alien grandfathered for 245i are entitled to grandfathering as well, EVEN IF they have their own, different, new basis for adjustment of status" and suggested they consult the BICE Counsel and change their decision.
At this point our lawyer told us that they didn't accept this explanation and explaining to us (whether truthfully or not I don't know) that all the decisions were made by one problematic person at (back then) INS who would not reverse her own decision because it would imply she was wrong (again this may be bs but that's what he said).
My questions are:
Is there something that I am not understanding here? Was our lawyer wrong in that my mother for some reason can't adjust in this way?
If you don't see any errors is there ANYTHING we can do? Our lawyer said there isn't. Is there any court that can review this?
I realize this was a few years ago. My parents felt really bad about this especially given the "it's 100% sure" attitude of our lawyer. I would really, honestly appreciated your opinion on this issue. Thank you.