Legal Question in Immigration Law in New York

Motion to renew I-485?

I had my I-485 denied few years ago because there was a problem with emplyment-based I-140 (expected to be approved after number of years). Denial of I-485 provided that it may be renewed during removal proceedings(never took place due to uninterrupted appeals)or reopened upon new facts, (no time limitations was indicated). However, my visitor visa expired before I-485 denial and I am out of status.

Instead of concurrent filing of new I-485 to S-ce Center (as it can be denied due to out of status for years, unless appeals are considered a valid reason, together with paying taxes from work after EAD expired)would Motion to reopen old I-485 be a better and safer solution? And since MTR should be made to NY District Office Director (who denied I-485) would it be sufficient to file it upon S-ce C-r' I-140 receipt or should I wait for its approval?


Asked on 3/04/05, 1:11 pm

1 Answer from Attorneys
Carolyn Goldfarb Carolyn S. Goldfarb, Esq.

Re: Motion to renew I-485?

You can only file a motion to reopen within 30 days of the denial, (actually 33 days if it is served by mail). If you do not currently have an approved I-140 with an approved labor certification, then you have no basis for a motion to reopen. I don't know what you mean when you say there was a problem with your I-140 or if this problem has been resolved. If you are out of status and not 245i eligible, you can't adjust your status. Furthermoe, you started accruing unlawful presence when you I-485 was denied. Now if you depart the US, you are subject to the 10 year unlawful presencne bar with no waiver seemingly available because you have accrued more than 1 year of unlawful presence. You should have had a consultation with a lawyer two years ago when your I-485 was denied to see if there was anything that could be done for you.

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Answered on 3/05/05, 12:52 pm


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