What are the options if a I-485 is denied?

[Archmedes]

On Wed, 31 Mar 2004 09:55:53 -0800, Chris Parker wrote:

First, this memo has nothing much to do with we are talking about. It merely deals with a specific situation related to timely filing, and says very little about frivolous or not. It says basically that USCIS is ignoring the "tolling with good cause" exception entirely, in favor of continuing the traditional period of authorized stay while an application for status is pending, and that this period of authorized stay may exceed the 240 days stated in the law. The applicant will be in a period of authorized stay until a decision is rendered, unless the application was not timely filed in the first place (the traditional technique for identifying an application as frivilous).

I think you are making two mistakes here. First, the memo dealt
specifically with one particular negative situation (extension filed after
authorized admission expired). It does not say anything about the
positive.

Specifically, it says "if you file after the period of admission, you are
out of luck". It does *not* say "all applications filed within the period
of admission are automatically OK".

And the "traditional technique" you cite is for identifying whether an
application was timely filed, not whether it is frivolous.

In fact, it is quite common that an application is untimely filed but
still not frivolous.

Second, I disagree with the conclusions in this memo; I doubt that it would hold up in court. Primarily, this is because USCIS is so slow that applying this memo would make certain people ineligible to file an extension of status at all, even though the law clearly intended for them to be able to do so. An example is somebody who files for an extension of B-2 status for two months. If USCIS takes three months to process the B-2 extension application, according to this memo, it would be impossible for the applicant to extend the B-2 status again (even though the law clearly allows it). I agree with the memo 100%. If the application is approved, the original period of authorized admission is extended to a new expiration date and the status may be extended again if a new application is timely filed before the expiration of the extended period of admission granted through the approval of the first application (approval of an I-539 application grants an additional period of admission under the authority of INA 248).

You are making one big - and unfortunately usually false - assumption
here: that the application is approved before the new expiration date.

Example - unfortunately, this is quite realistic:

John Smith is the unmarried domestic partner of Jill Miller. Jill Miller
is admitted as an H-1B, and John Smith is admitted as an accompanying
family member as B-2. This scenario is specifically permitted, and just as
specifically, John is entitled to continue extending his B-2 in six-months
increments for as long as Jill is in H-1B status.

John is admitted as a B-2 on June 1, 2002, until October 31, 2002.

On October 25, 2002, he files an application for extension until April 30,
2003 (six months). Note that there is no statutory prohibition against
such a second extension, and in the case of a domestic partner of an H-1B,
it is actually explicitly permitted.

USCIS approves this extension on July 15, 2003 - two and a half months
after the new period of authorized admission has expired.

According to this memo, when would John Smith be able to file the
application for a second extension? He can't file it before April 30,
2003, because USCIS hasn't approved his extension yet. And he also can't
file it after April 30, 2003, because then he's out of status.

That's why I think this whole memo is nonsensical, and the author hasn't
thought things through. It is unfortunately quite common that USCIS (and
INS before it) ignores the plain law or common sense.

Otherwise, if the first application is denied, unless the alien's original period of admission has not expired by the time of denial (such statuses as H1B, F, M, etc.), they may not reapply again without first departing the U.S.

Agreed.

The concept that is confusing you is that the period of admission and the period of stay may be concurrent. The mere filing of an application to change/extend/adjust status does not terminate the period of authorized admission, but rather grants an additional, concurrent period of authorized stay (without granting any additional legal status) while the application is pending.

Nothing confusing here. You are absolutely right. But see my example.

Mere ineligibility at the time of filing (timely filing), resulting in a denial decision, doesn't make the application "frivilous." I don't know offhand where it is defined, but generally "frivolous" in this context means "filed with knowledge that the application was not approvable, and with the sole intent of receiving a benefit from the application itself, rather than the benefit actually applied for" "Frivilous" isn't defined anywhere.

8 CFR 1003.102 defines it with respect to attorneys. It is similarly
defined for the applicant himself, but I couldn't find it quickly (and
don't get paid for a full law search)

***************************
A practitioner engages in frivolous behavior when he or she knows or
reasonably should have known that his or her actions lack an arguable
basis in law or in fact, or are taken for an improper purpose, such as to
harass or to cause unnecessary delay. Actions that, if taken improperly,
may be subject to disciplinary sanctions include, but are not limited to,
the making of an argument on any factual or legal question, the submission
of an application for discretionary relief, the filing of a motion, or the
filing of an appeal. The signature of a practitioner on any filing,
application, motion, appeal, brief, or other document constitutes
certification by the signer that the signer has read the filing,
application, motion, appeal, brief, or other document and that, to the
best of the signer's knowledge, information, and belief, formed after
inquiry reasonable under the circumstances, the document is well-grounded
in fact and is warranted by existing law or by a good faith argument for
the extension, modification, or reversal of existing law or the
establishment of new law, and is not interposed for any improper purpose.
***************************

Your definition of "frivilous" would render any denial decision to be the result of a frivilouslt filed application, as the applicant was not found to be eligble for the benefit sought.

No. Denials happen for many reasons. The difference lies in two questions:

- Was there a basis in law at the time of application? This standard is
far lower than the standard used for actual approval. For instance, an
application to extend B-2 status with the reason "I enjoy myself and want
to spend an extra three months in the USA" would be non-frivolous even if
it is eventually denied. A B-2 extension application with the reason "I'm
really just waiting for the new H-1B quota to open up" would be frivolous
because that is not a valid reason (USCIS would often let such
applications slide because unless you outright say so, it's difficult to
prove that this was indeed frivolous).

- Were you just trying to take advantage of a benefit that resulted from
the application itself? A B-2 extension with the reason "I'm really just
waiting for the new H-1B quota to open up" would also fail this test.

The memo clarifies that the applicant will always be in a period of authorized stay while an application is pending, unless the application was not timely filed.

No. The memo says the reverse: you can't file a second application after
your period of admission has expired. It says absolutely nothing about
what happens if you do file timely.

And if you file something anyway just to benefit from the application itself, that would be frivolous, and you would be treated as if you had never filed the application. Such an application, if accepted for filing, will simply be denied and you will get the period of authorized stay while it was pending.

No. That's the point.

As stated in my previous message, the general criteria for all denials is that the applicant did not establish eligibility at the time of filing for the benefit they were seeking.

A very different standard from the one used for "frivolous". And, by the
way, denials or approvals are based on whether the the applicant is
eligible at the time of the denial, not at the time of application.

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Please support H.R. 539, H.R. 832 and S. 1510. More information at
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[Chris Parker]

> According to this memo, when would John Smith be able to file the

application for a second extension? He can't file it before April 30, 2003, because USCIS hasn't approved his extension yet. And he also can't file it after April 30, 2003, because then he's out of status.

I have no experience with I-539, but I trust your comment that the
expiration date of the new period of admission could be before the
date of approval because of processing delays.

Even so, he can file his second extension before April 30, 2003 (it
would wise to include with the application the filing reciept of the
first application that is still pending). If the first extension is
approved, the second I-539 application was timely filed. If the first
extension is not approved, the second extension cannot be approved,
and lawful presence will then terminate at the time of the denial of
the first I-539, in July 2003 in your example.

That's why I think this whole memo is nonsensical, and the author hasn't thought things through. It is unfortunately quite common that USCIS (and INS before it) ignores the plain law or common sense.

The author is from the USCIS Office of General Counsel. It is very
well thought through in my opinion. The requirement that you must be
within the period admission at the time of filing comes directly from
the law at INA 248, and the Service can't ignore that filing
requirement under any circumstances.

8 CFR 1003.102 defines it with respect to attorneys. It is similarly defined for the applicant himself, but I couldn't find it quickly (and don't get paid for a full law search)

I believe, by the memo, even if the Service finds that a timely-filed
application appears to be frivilous, an authorized period of stay
during its pendency will still be honored with respect to counting
days of unlawful presence. Maybe the applicant didn't know that your
application lacked a basis in law, and based on that false presumption
they remained in the U.S. after the period initial admission until
receiving the denial decision. As previously stated, the general
criteria for a denial is always that it didn't meet the applicable
requirments for approval.

No. The memo says the reverse: you can't file a second application after your period of admission has expired. It says absolutely nothing about what happens if you do file timely.

The summary answer on page 2 makes it pretty clear to me:

"The period during which a timely filed EOS or COS application is
pending continues the alien's period of authorized stay in the United
States (allowing the alien to avoid accruing unlawful presence), but
does not extend the alien's period of "authorized status." "

And, by the way, denials or approvals are based on whether the the applicant is eligible at the time of the denial, not at the time of application.

Upon re-reading 8 CFR 103.2(b)(1) and (12), I adjust my criteria
statement as follows:
An application must be denied where the applicant does not establish
eligibility to file at the time of filing or eligibility for the
benefit requested at the time of adjudication.

CP
--
"Remember, I am strictly a layperson without any legal training. I
encourage everybody to seek competent legal counsel rather than
relying on usenet newsgroups."

[Archmedes]

On Thu, 01 Apr 2004 09:59:16 -0800, Chris Parker wrote:

According to this memo, when would John Smith be able to file the application for a second extension? He can't file it before April 30, 2003, because USCIS hasn't approved his extension yet. And he also can't file it after April 30, 2003, because then he's out of status. I have no experience with I-539, but I trust your comment that the expiration date of the new period of admission could be before the date of approval because of processing delays. Even so, he can file his second extension before April 30, 2003 (it would wise to include with the application the filing reciept of the first application that is still pending). If the first extension is approved, the second I-539 application was timely filed. If the first extension is not approved, the second extension cannot be approved, and lawful presence will then terminate at the time of the denial of the first I-539, in July 2003 in your example.

Unfortunately, that's not quite true. Lawful presence terminates on the
earlier of the day of the denial and the end date of the requested
extension.

In any case, if you read the memo, it explicitly addressed the exact
situation you describe, and says that it is *not* permissible to file the
second extension before the first one has been approved.

That's why I think this whole memo is nonsensical, and the author hasn't thought things through. It is unfortunately quite common that USCIS (and INS before it) ignores the plain law or common sense. The author is from the USCIS Office of General Counsel. It is very well thought through in my opinion. The requirement that you must be within the period admission at the time of filing comes directly from the law at INA 248, and the Service can't ignore that filing requirement under any circumstances.

Yes, of course I am familiar with Thomas Cooke. When it comes to the law,
though, credentials don't count for as much as the actual matter at hand.
And in this case, I think he goofed, and this won't hold up in court if it
is ever tested. Regardless, such a memo has the legal force of a legal
opinion. It is not the law, it is merely a guide about how USCIS
*believes* the law should be read.

Also keep in mind that USCIS is biased and an interested party here. The
memo even explicitly says so: purpose is to restrict a practice that the
USCIS deemed undesirable.

8 CFR 1003.102 defines it with respect to attorneys. It is similarly defined for the applicant himself, but I couldn't find it quickly (and don't get paid for a full law search) I believe, by the memo, even if the Service finds that a timely-filed application appears to be frivilous, an authorized period of stay during its pendency will still be honored with respect to counting days of unlawful presence. Maybe the applicant didn't know that your application lacked a basis in law, and based on that false presumption they remained in the U.S. after the period initial admission until receiving the denial decision.

First of all, an applicant would know (or should know) that his
application has a basis in law. There are several possible scenarios:

- The applicant honestly believes that he qualifies for a certain benefit.
This is non-frivolous, even if USCIS disagrees.

- The applicant knows that he really doesn't qualify, but applies anyway.
This would be frivolous (or, depending on the situation, possibly
fraudlent).

- The applicant knows that he probably would get denied, but has a
reasonable legal theory that would give him cause for an appeal. This is
non-frivolous. One example would be applying for a second extension while
the first one is pending. According to the memo you found, USCIS would
deny it. My legal theory is at least solid enough to form the basis of an
appeal and allow a court to decide.

- The applicant does not know whether he qualifies for a benefit. In that
case, any judge would say "you were smart enough to figure out what form
to file, but you claim you can't figure out what it takes to qualify?" and
toss his case out of court. Such a claim would not hold water, and the
application would almost certainly be frivolous.

No. The memo says the reverse: you can't file a second application after your period of admission has expired. It says absolutely nothing about what happens if you do file timely. The summary answer on page 2 makes it pretty clear to me: "The period during which a timely filed EOS or COS application is pending continues the alien's period of authorized stay in the United States (allowing the alien to avoid accruing unlawful presence), but does not extend the alien's period of "authorized status." "

Yep. Let's, for the sake of this argument, assume that the memo will hold
up in court. I could rephrase this paragraph (in the context of filing an
extension application) as:

"While an applicant remains lawfully present in the USA while his
extension is pending, he cannot file another extension application during
that time".

Does either my rewording or the original say anything about whether he is
eligible to file an extension before his authorized status expires?

For instance, does this paragraph, or anything in the memo, say that
somebody who arrived in the USA on the VWPP (with the visa waiver) can
file an extension during the 90 days of his authorized status?

I am saying that filing an extension application at day 80 of a VWPP visit
would be a frivolous application because it is explicitly not permitted
(and the alien even must have known that because he signed a statement to
that effect with the I-94W).

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please support H.R. 539, H.R. 832 and S. 1510. More information at
http://www.kkeane.com/lobbyspousal-faq.shtml

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.

[Chris Parker]

Originally posted by Ingo Pakleppa - see web site for email

Unfortunately, that's not quite true. Lawful presence terminates

on the earlier of the day of the denial and the end date of the
requested extension.

In any case, if you read the memo, it

explicitly addressed the exact situation you describe, and says that it
is *not* permissible to file the second extension before the first one
has been approved.I don't read that anywhere in memo. I
read that period of admission expires at the end of the approved
extension, but period of authorized stay expires at the time of the
decision. Could you provide a direct quote please?

Yes, of

course I am familiar with Thomas Cooke. When it comes to the law,
though, credentials don't count for as much as the actual matter at
hand.

And in this case, I think he goofed, and this won't hold up

in court if it is ever tested. Regardless, such a memo has the legal
force of a legal opinion. It is not the law, it is merely a guide about
how USCIS *believes* the law should be read.

Also keep in mind that

USCIS is biased and an interested party here. The memo even explicitly
says so: purpose is to restrict a practice that the USCIS deemed
undesirable.Remember, the decision to approve or deny a
change/extension of nonimmigrant status is a discretionary decision. It
may not be appealed to a higher authority (other than under Habeas
Corpus after an order of deportation is issued and BIA appeal denied),
so there really is no way to test it in the courts as you propose, and
the administration's policy is the law for all practical purposes.

If
the Service wanted to, they could (in their discretion) restrict
approval of an I-539 to cases involving an extreme hardship if they
wanted to, and it would be totally lawful for them to do so.First of all, an applicant would know (or should know) that hisapplication has a basis in law. There are several possible scenarios:...The applicant is not an attorney, and is not to be held
accountable as if he were an attorney. Attorneys must meet higher
standards, and when they don't, this may be unethical behavior on their
part but it is not the client's fault (although the client may suffer an
injury, denial, as a result).

"While an applicant remains

lawfully present in the USA while his extension is pending, he cannot
file another extension application during that time".Could
you please provide the original phrase that you are paraphrasing. I
don't quite read that. I read that he must be within an authorized
period of admission at the time of filing, or if not that the late
filing is excused by the Service. If the first application is approved
(and it should be decided first), the second application should be
considered a timely filing, or if not, they would be expected to excuse
the late filing because it is not the applicant's fault and the benefit
should be available to him/her.

I am saying that filing an

extension application at day 80 of a VWPP visit would be a frivolous
application because it is explicitly not permitted (and the alien even
must have known that because he signed a statement to that effect with
the I-94W).I am saying the applicant is not expected to know
what the law says. Under what this memo says, the application would be
denied because their is no basis in law for approval, but an authorized
period of stay would be recognized for the duration of time that it was
pending.

The Service can give anyone an authorized period of stay for
any reason they want. And that's why the "Tolling with good cause"
exception in INA 212(a) which introduces the concept of a "frivilous
application" and the time that an I-539 is pending is not to be tolled
as unlawful presence can be completely ignored by the Service. The
Service is offerring the applicant *more* than is required by the law.
The law merely states the minimum that must be provided.

CP
--

Remember, I am strictly a layperson without any legal training. I
encourage everybody to seek competent legal counsel rather than relying
on usenet newsgroups.


--
Posted via http://britishexpats.com

[Chris Parker]

Originally posted by Chris Parker

The Service can give

anyone an authorized period of stay for any reason they want. And
that's why the "Tolling with good cause" exception in INA 212(a) which
introduces the concept of a "frivilous application" and the time that an
I-539 is pending is not to be tolled as unlawful presence can be
completely ignored by the Service. The Service is offerring the
applicant *more* than is required by the law. The law merely states the
minimum that must be provided.I did re-read the memo just
now, and I do notice that they do carefully use the word "non-
friviolous" along with "timely." Consequently, I can only conclude
that, unless the denial letter for a timely-filed application says that
the adjudicator has found the application to be frivilous (according to
what criteria or standards, we don't know), the denied application
should be considered to be non-frivilous.

I must presume that they must
have a very high standard to use to declare an application frivilous.
It must be clearly and convincingly frivilous. Otherwise, I don't think
they'd be able to make that conclusion with the certainty they'd need.
Mere lack of basis in law can't be enough.

Do you know of any EOS/COS
denials that were declared to be frivilous in the denial letter?


CP


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