Greencard Application Denied, what to do next?

[DeeO 2]

Hello everyone,

 

I am writing this for a friend who just got her denial letter from USCIS. She came here on J1 visa and got married before her visa expired. She only submitted I-130, and left the country for almost a year. Then her and her greencard holder husband came back to the States. She came here with ESTA. But because they were tight on money, they couldnt submit the papers before her ESTA expires. She submitted the I-485 four months after her ESTA expires. Then they went to the interview and today she got her denial letters. They have been married for four years! Is there anything she can do? Or she will have to leave her husband here and go back to her country? 

[Suss&Camm 2,213]

She would have needed for 3 things in order to file

 

1. To be in the country legally at time of filing

2. Have an approved i-130

3. Have a current priority date.

 

I assume none of those were true for her, or maybe one (i-130). She doesn't have a path inside the US as long as he is a permanent resident and not a citizen. She would need to go home, which would incur a ban for her (how long has she been in the country?). The ban will be 3 years if she's accrued between 6 months (180 days) and 1 year of unlawful presence and 10 years if over 1 year. If they have an approved i-130,  she will have to go home to her country and apply from there. After the visa is denied at the interview they would file an i-601 inadmissibility waiver, which if granted would allow them to move forward. 

 

If he became a citizen, they could refile the i485 from inside the country.

 

This is my understanding of the options. If I have missed something in this situation I will surely be helped to clear it out by the rest of VJ

Edited September 29, 2017 by Suss&Camm

[Going through 5,668]

 

47 minutes ago, DeeO said:

Then they went to the interview and today she got her denial letters.

What was mentioned as the reason for denial?

 

(from your original post, I can guess the reason already but just want to make sure)

Edited September 29, 2017 by Going through

[NikLR 13,220]

It would be best if your friend joined so that details aren't lost. 

[f f 725]

with the denied i485 she may get put into removal proceedings which would prevent her from being able to submit another i485 if her husband becomes a citizen. she would then have to get the removal proceedings dropped to be able to adjust.

[Suss&Camm 2,213]

What I don't understand is why they didn't finish the process from outside the country. Shouldn't have added more than about 6 months (maybe slightly more) compared to AOS in country after already being outside the country for a year. Especially since they then didnät file the AOS for another 4 months.

 

Would have saved a lot of headache - but shoulda, woulda, coulda

Edited September 29, 2017 by Suss&Camm

[DeeO 2]

31 minutes ago, Going through said:

 

What was mentioned as the reason for denial?

 

(from your original post, I can guess the reason already but just want to make sure)

"You indicated on your form I-485 that your last entry to the States was as a nonimmigrant visitor under the visa waiver program and you are not in a lawful nonimmigrant status. Therefore, you are restricted from adjustment of status and do not fall within the exception as an immadiate relative" 

Thats what the denial letter says... 

[Suss&Camm 2,213]

1 minute ago, DeeO said:

"You indicated on your form I-485 that your last entry to the States was as a nonimmigrant visitor under the visa waiver program and you are not in a lawful nonimmigrant status. Therefore, you are restricted from adjustment of status and do not fall within the exception as an immadiate relative" 

Thats what the denial letter says... 

Yes - point 1) above. Did they have an approved i130? and  if so, what's the PD?

[DeeO 2]

1 minute ago, Suss&Camm said:

Yes - point 1) above. Did they have an approved i130? and  if so, what's the PD?

Yes, her I-130 was approved before she even left the country. She left in 2015. She came back in 2016 (July) and sent her I-485 in February 2017. Is there anything she can do after her application got denied? Or if her husband was a citizen, would she get approval? I am asking because soon her husband will be a citizen.

[DeeO 2]

18 minutes ago, Suss&Camm said:

What I don't understand is why they didn't finish the process from outside the country. Shouldn't have added more than about 6 months (maybe slightly more) compared to AOS in country after already being outside the country for a year. Especially since they then didnät file the AOS for another 4 months.

 

Would have saved a lot of headache - but shoulda, woulda, coulda

I get your point... But they went through really hard times... Yes would have saved a lot of headache but what happened is happened and there is no way to take it back... She already contacted with a lawyer and made an appointment... Just hoping there is a way to make things happen. They been married for four years and they tried to live in both of their home countries and they couldnt make it... So, if she has to leave the country it means they will have to be separated? 

[Suss&Camm 2,213]

5 minutes ago, DeeO said:

I get your point... But they went through really hard times... Yes would have saved a lot of headache but what happened is happened and there is no way to take it back... She already contacted with a lawyer and made an appointment... Just hoping there is a way to make things happen. They been married for four years and they tried to live in both of their home countries and they couldnt make it... So, if she has to leave the country it means they will have to be separated? 

They can still move forward from outside the country, but it would be a long process without guarantees.

[Hypnos 6,576]

She was properly denied. 

 

As mentioned above, since she isn't an immediate relative of a US citizen then she would need to both be in status and have a current priority date to be able to file an I-485.

 

She can proceed with a spousal visa but will need to interview in her home country for it. She may also need a waiver depending on exactly how much overstay she has. 

 

Alternatively, if her husband becomes a US citizen then she should be able to file for AoS again and this time be approved. 

Edited September 30, 2017 by Hypnos

[Suss&Camm 2,213]

4 hours ago, DeeO said:

Yes, her I-130 was approved before she even left the country. She left in 2015. She came back in 2016 (July) and sent her I-485 in February 2017. Is there anything she can do after her application got denied? Or if her husband was a citizen, would she get approval? I am asking because soon her husband will be a citizen.

Yes If he was a citizen then her overstay would be forgiven and she could file aos again.

Well more accurately it would be forgiven upon approval, but she wouldn't need to be in status at time of filing. 

Edited September 30, 2017 by Suss&Camm

[Unlockable 7,306]

11 hours ago, DeeO said:

I get your point... But they went through really hard times... Yes would have saved a lot of headache but what happened is happened and there is no way to take it back... She already contacted with a lawyer and made an appointment... Just hoping there is a way to make things happen. They been married for four years and they tried to live in both of their home countries and they couldnt make it... So, if she has to leave the country it means they will have to be separated? 

Of course not. He can live with her in another country. Not even her own country. America does not have to be the be all end all.

 

Going through hard times is not going to be an excuse to overcome the denial. It is tough situation. But they can get through this together. Like said they can live together in another country until this is cleared up. That is what marriage is about, fighting through tough time together.

[Coco8 1,039]

Becoming a citizen can take like 6 months if he starts the citizenship application right now. But I'm not sure if he is eligible because they lived in another country for 1 year while he was on a green card. He might need more time in the US to be able to apply. 

 

I'm mentioning this because she could be  out of status in the US for a very long time until they are able to AOS as if her husband were a US citizen. If they were having a hard time and money problems, I don't think those will get resolved and she could be out of status for even longer. That means she cannot work, she cannot have health insurance, etc. That seems like a huge risk and they should think about it. If she has ESTA they could apply for a visa and she could visit every now and then. Other people have to apply for GC for spouses that can never visit because they need visitor visas they are always denied so they are apart for ~2 years (as spouses of GC holders).