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Georgetown Lawyer
Georgetown Lawyer, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 12049
Experience:  10+ years of Immigration Experience in All Areas A-Z complex immigration cases & issues in all areas
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How to change status while in Immigration Court proceedings?

Resolved Question:

I am already in removal proceedings in immigration court, but I was told I needed to file my I-485 with USCIS before the court had jurisdiction over it. In October, I filed the I-485 with USCIS in Chicago, and I simultaneously filed my I-765 employment authorization petition. I have just received a denial notice for both my I-485 and my I-765. I now understand that both forms should have been filed in Texas, not Chicago. But I also understand that immigration court has ultimate jurisdiction, so the denial of my I-485 shouldn't, in theory, affect my petition to adjust status. What I want to know is whether I need to re-file my I-485 in Texas in order for it to be reviewed in the immigration court. Further, how do I go about reviving my I-765 since I need to work in the meantime?

Submitted: 5 years ago.
Category: Immigration Law
Expert:  Georgetown Lawyer replied 5 years ago.

Thank you for allowing me to assist you. Are you representing yourself in the removal proceedings? Did you not receive instructions from the government attorney on how and where to file the I-485, or have you not had a hearing in court yet? Did the judge give you a filing deadline?

Customer: replied 5 years ago.
I have had a hearing, but, no, the government attorney did not provide filing instructions for my I-485. The judge has not set a filing deadline.
Expert:  Georgetown Lawyer replied 5 years ago.

Then that explains a lot. When you are adjusting status in removal proceedings you cannot file the I-485 until the judge instructs you to do so. Once the judge gives the deadline to file, the government attorney will give you the filing instructions for you to follow. The service center has no jurisdiction over your case at this point. In addition, you cannot get work authorization until you can file the I-485 as I'm sure you are aware. So you have to wait to be told to file the I-485, there is nothing you can do in the mean time. I hope that clarifies.

Customer: replied 5 years ago.

I'm sorry; I think I misunderstood your question. The judge did instruct me to file the 485 in my last hearing. I simply did not receive filing instructions from the government attorney so I was left to my own devices to figure out how/where to file. The judge explicitly instructed me to file the 485 at my last hearing in October. Please advise based on that knowledge.

Expert:  Georgetown Lawyer replied 5 years ago.

What deadline did the judge give you?

Customer: replied 5 years ago.

It was a date back in October of last year.

Expert:  Georgetown Lawyer replied 5 years ago.

I'm sorry but this is not adding up. The judge told you to file the I485 last October and you got no filing instructions from the government? Also, when is your final/individual hearing? Why are you being deported? What is your basis for adjustment of status?

Customer: replied 5 years ago.

Yes, the government attorney did not provide filing instructions--it was an oversight on her part. My final/master hearing is in September of this year. My basis to adjust status is based on the approval of my wife's relative immigrant visa petition. She is an American citizen.

Expert:  Georgetown Lawyer replied 5 years ago.

You didn't say why you are being deported? Also, did you go to get fingerprinted already?

Customer: replied 5 years ago.

I am being deported based on an arrest for petty larceny. And, yes, I've been fingerprinted.

Expert:  Georgetown Lawyer replied 5 years ago.

To be finger printed the government attorney had to give you instructions; the same time they gave filing instructions for the I-485, is it possible you misplaced the instructions?

Customer: replied 5 years ago.

I don't think so. I think I obtained the fingerprint/biometrics appointment out of turn. At one of my hearings, I explained to the judge that I wasn't able to file a 485 yet, so he told me I should at least get my biometrics appointment taken care of. So I did. By the next hearing, I was supposed to be ready to file the 485. I brought the 485 complete with my receipt of payment for the biometrics appointment I already submitted to, and the judge said I needed to file it with USCIS before filing it in court. At that time, I filed it with the Chicago USCIS deposit office, based on filing instructions obtained from the USCIS website. I was completely unaware that the government attorney was supposed to give me different filing instructions at my last hearing.

Expert:  Georgetown Lawyer replied 5 years ago.

Ok, thanks. You have a mess on your hands. If you fail to file the I485 by the October deadline the judge gave you, you have abandoned your application for relief. You can either go to court or wait until hearings are done and see the judge/government attorney to ask for the instructions or wait until your hearing to explain you were never given the instructions. Alternatively, you can file a motion for continuance of the final hearing and in the motion explains that you were never given filing instructions to file the I-485 by the government attorney. It is their responsibility to provide you with instructions and you need to get them. So those are the options at this point. Obviously there is no work authorization to be had at this point because you cannot file the I485 without the instructions from the government attorney. I hope this helps clarify.

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