I-290B MOTION TO REOPEN APPROVAL FOR STUDENT CHANGE OF STATUS DESPITE UNLAWFUL PRESENCE

• Country/Region: Taiwan, China
• Case: Motion to Reopen (I-290B) for I-485 Change of Status
• Processing Time: 3 months
• Challenges: Previous denial of I-485 due to insufficient evidence needed to prove that Mr. Kang was not at fault for unlawful presence

BACKGROUND

Desperate, Mr. Kang came to Tsang and Associates seeking assistance after recently being denied his I-485 adjustment to permanent resident status, in hopes that United States Citizenship and Immigration Services (USCIS) would reopen his I-485 petition. If his petition did not get reopened, he would have to leave the United States at the expiration of his current visa or go through the entire filing process again hoping for a favorable outcome. Mr. Kang had been denied on the basis that he did not provide sufficient evidence that explained that he was not at fault for not having been issued any I-20 Certificate of Eligibility for Nonimmigrant Student Status during the years 1997-2001, his high school years, prior to being reinstated to his F-1 Academic Student status while at university. After trying to apply for his I-485 readjustment of status and being denied, Mr. Kang frantically tried to find an attorney to help him take the next step in his case. When he found us at Tsang and Associates, we helped him create a Form I-290B Motion to Reopen and Motion to Reconsider. He received his denial on February 24, 2016 and we submitted the Motion to Reopen and Motion to Reconsider on March 21, 2016; approval for the Motion was given on June 21, 2016.

KEYS TO SUCCESS

Even though Mr. Kang was initially rejected from his adjustment of status, we believed strongly in his case and were confident that Mr. Kang’s petition for adjustment of status would be reopened after review. We had to file the motion to reopen by March 25, 2016 – 30 days after the initial denial notice. We first had to tackle the issue of Mr. Kang’s unlawful presence during the years 1997-2001. We showed that per USCIS policy, there are exceptions to failing to maintain lawful immigration status. These include the applicant being restored to status and also if the failure to maintain status was not the fault of the applicant. Mr. Kang’s situation met both of these exceptions, opening up the door for reconsideration.

In our motion to reopen, we stressed that Mr. Kang had already been reinstated under F-1 student status in 2003, and therefore should have been allowed to adjust status under USCIS regulations. We highlighted that because Mr. Kang was indeed allowed reinstatement back in 2003, he had already met the requirements of USCIS to have his student status and Form I-20 reinstated.

In addition, we had to properly address the reasons for denial given by USCIS, being the lack of evidence showing that the failure to maintain status was not the fault of Mr. Kang. We first submitted an affidavit from the father of Mr. Kang, in which he himself admitted that he was to blame along with the Mr. Kang’s sister who was the de facto guardian, for not ensuring that Mr. Kang went through the proper procedural steps to receive I-20 status.

Furthermore, we asked the school district at which Mr. Kang attended to write a letter detailing the circumstances of Mr. Kang’s enrollment at the school. The letter stated that “there were no inquires made or conversations initiated with him regarding his immigration status” and therefore no I-20 was issued to authorize his attendance as an F-1 foreign student. We thus demonstrated that the father, sister, and school district were the ones to blame in not providing Mr. Kang, a minor at that time and thus understandably not aware of the situation, with the proper procedures for foreign student status. In fact, we established that no action was taken during Mr. Kang’s high school years; only when Mr. Kang was informed of his unlawful status in university, was he made aware of the circumstances surrounding his immigrant status. We emphasized that once Mr. Kang was indeed made aware of his unlawful status, he immediately had the situation rectified through his university’s International Student Center.

We proved that Mr. Kang’s case should be reopened and reconsidered, that his unlawful presence should be excused, and that Mr. Kang should indeed be allowed to readjust his status.

OUTCOME

We received approval of the petition to reopen Mr. Kang’s case in 3 months on June 21, 2016.

*Name has been changed to protect client identity