I-751 late filing, huge mess!

[Stew 0]

Ok, here's my situation and just a forewarning, it's a complicated one:

In January of this year, I lost my wallet and with it my Conditional Green card. It was due to expire in July, now in April I was due to leave the country because my Aunt had been recently diagnosed with cancer so I wanted to go home and spend a little time with her because she wasn't responding well to the chemo. She only had a few months left so naturally I wanted to leave as soon as possible. I had taken April off as it's the only time I could get (Thanks to the whole sonority thing) anyway; I went to my lawyer and asked what I should do about not having a green card and wanting to leave the country. She suggested we send in another I-90 to get a replacement sent before I leave the country since I couldn’t file and I-751 before April. She called USCIS and he told us that would be the correct step to take.

Confident, we sent the package and I waited for a response, but there was none. It took until March for them to send a letter saying they had received the packet. Long story short, my card never arrived in time for me to leave the country. So I scheduled an appointment at my local USCIS the day I was supposed to board my plane and begged that they stamp my passport to allow me to leave. I showed they had received the packet and through some miracle they gave me permission to leave for two months so I went home, spent some time with my aunt managed to attend her funeral and returned to work. Soon after I received my letter for my biometrics in June, a month before my card expired.

I travelled back to the USCIS and asked the looming expiration would be a problem. The woman who took my fingerprints told me no, because I had filed my I-90 well in advance to it expiring I would be granted an extension on my residency card. I took this to my lawyer who agreed with the woman's opinion and so I waited some more. My green card expiration came and went and I called near everyday to the USCIS for a status update and was told it was still pending. When my lawyer called they told her that a decision would be reached by Sep-30th and if we didn't hear anything after that to go and appeal. No one told me there was a problem with my visa until Oct 4th. My lawyer had taken a vacation over the last week of Sep and arrived back Oct. 3 to find a letter saying my replacement card had been denied on the grounds that I never filed an I-751.

When we called to explain why we didn't file the I-751 he told us that he didn't agree with the other USCIS members opinion and as the person who has the final say was well in his right to do it. He did mention we should file an I-751 now and we are scrambling to get it sent by Friday but my question is this:

After three months of being 'out of status' what chance do I have? I want to explain exactly why I was late but don't want to point fingers at the people who are supposed to be helping me. I feel it makes me come off as ignorant. I don't want to say because of a family emergency, because I was back with enough time to file an I-751 and if I had known I had to would have without a moment's hesitation. Pretty much I am in a corner and no way out. I don’t feel this a good enough reason as to why I didn’t file, I also don’t believe I am at complete fault here. I say complete because I worried about the advice and should have researched it, but at the time I had a lot going on in life (A lot of family issues and deaths!) and just didn’t think about it all that much.

My American Residency is the most important thing to me. I have a good job, house, wife and my first child on the way. I have no convictions here, our marriage is rock solid and I've done everything to provide for her in the time I've been here. I know I am in danger of losing all that because of one misstep that I made. I want to do the right thing here but I only really have enough time, funds and energy for one good proper go at this.

So is it worth my time to file late for an I-751 or should I just start the adjustment of status process all over again and then re-apply for my conditional visa. I am really confused on this one; I did everything I was told to do and don’t want to lose everything because of one silly misstep. Any help would be greatly appreciated, I apologize for the length but I don't need to explain the situation fully because it's not just a case of:

'Oops I forgot!'

I literally thought I was taking the right steps. If I had been told the day my visa expired that I was ‘out of status’ it the I-751 would have been sent late by a day. But they didn’t inform me or my lawyer until Sep 30th and I just don’t think that’s an acceptable time frame to be out of status without filing. Even if I was unaware of it. Ugh…life is tough.

Thanks for any help way in advance I will appreciate it all!

[Deputy Purple 1,294]

Wait a minute, your Immigration Lawyer thought the I-90 application for replacement Greencard would extend you Conditional Greencard?

I'd fire that Lawyer for not understanding simple forms.

[milimelo 4,156]

Sorry but you knew that you had to file I-751. I-90 could be used as proof you knew you had to file something but you filed the wrong thing. Whatever a contractor at ASC center taking your biometrics told you was wrong - here's the deal: you can't blame them, it's up to you to know what's to be done at each step - gov't will not and does not make it easy for you.

The only thing you can do now is file that I-751, include a very nice and apologetic as in it's my fault but would accept this submission letter and hope they accept it.

Worst case scenario - they put you in removal and then you get to go before a judge and plead for them to make USCIS accept another I-751 filing and acting on it.

Get your evidence in line and file ASAP.

Oh, and you seem to have an incompetent lawyer - may want to drop her and find a competent one - seriously, telling you it's ok not to act on anything because you filed I-90? Weird.

[Brit Abroad 166]

Write a covering letter with your I-751 outlining that you were given advice, followed it and the person officiating your replacement disagreed with that advice.

I'm sure it's not a unique situation and they already have it on file that you requested a stamp to be allowed to return, so it's documented with USCIS already.

Hopefully the removal of conditions will be smoother sailing. Best of luck.

[Kathryn41 3,205]

Explain the circumstances including who told you what and the fact that you had used a lawyer as well, and file the I-751 late. USCIS does sometimes allow a 90 day window when you have a valid reason that they accept, so you may get lucky.

If the worse case happens and they refuse to accept the I-751 for late filing or deny it for late filing, you then basically go back to square one and apply for a new green card as you are still eligible to have one. Your spouse needs to file an I-130 petition and you file an I-485 along with the I-765 for a new EAD. Don't bother refiling another I-751 - that green card would be dead in the water and you would just be wasting your money. In the new green card application, you would explain what happened to the first green card and then submit the necessary evidence as requested. You should have no trouble getting a new one, although you might have an interview. As you would have been married more than 2 years when that one is approved (or you wouldn't have been filing an I-751 ) this green card would be a permanent 10 year card so there would be no future removal of conditions necessary. The down sides would be it would cost you the refiling fees, the new medical fees, the new Affidavit of Support and you would re-set your clock for citizenship, along with the high nuisance factor, but you should be able to do it and get a new green card.

Let's hope you get a sympathetic officer and they accept the I-751. You may wish to start preparing an I-485 package just in case so that if the I-751 is denied you can submit the I-485 package by return mail, thus only having a few additional days out of status.

Good luck.

Edited October 7, 2011 by Kathryn41

[Stew 0]

Thanks to all the people who replied. I hope I didn't come across as trying to blame others, as I said I assume total responsibility but again I wasn't thinking at the time. The question I had about the letter explaining my situation is, should I write one or have my lawyer do it? I would prefer to write one myself and explain exactly what happened to the best of my ability but I don't know if that would be frowned upon. Also the documents I am sending is:

Bills in both our names

Pictures of us together, dated

Taxes we filed

Credit card receipts in our names

Cheques in both our names

Home and Car ownership under both our names

Signed and notarized affidavits from family and friends

Insurance that covers both of us etc.

Is there anything I am missing? I have of course sent all the other stuff too, police reports, copies of my passport, copies of my resident card etc. but is there something that might help prove I have been living and working here that I am overlooking?

And lastly, what about my work situation? I know this is touchy but I did not know I was out of status until last week and I am still working at my job. Should I come clean and let them know or should I hold off until I get a reply from the USCIS in regards to my I-751, again I'm trying to live an honest life and I really don't want any trouble but I can't afford to lose my job either with a baby right around the corner.

We also talked about replacing our lawyer but the situation as it is I really can't afford it financially and time wise. She knows the situation were in and she has been kind enough to wave her fee's to do this process, she does assume some of the burden aswell for this and she knows it and she is trying to make it right. I am angry as hell, but mistakes happen.

Anyway, thanks for the replies again everyone, I appreciate the help!

[sib 7]

Your evidence looks fine, but I would also include bank statements of joint bank accounts. Don't forget to cover the 2 year span not just the actual year.

Regarding your letter. Don't write too much. Maybe you can make a list with the dates and what happened.

January 2011 lost wallet including green card (do you have a copy of the police report? If so, include it)

February or whatever filed I-90 to replace green card

April 2011

and so on.

Also put in when you got the advice you got, it has nothing to do with blaming somebody, you got advice, you followed advice and it was wrong and now you are filing late because of that!

We were filing late also because of wrong information from USCIS! We got our package sent back twice (it always took them about 4 weeks to mail it back!) because of their mistake and the 3. filing was then late (more than I month) but was accepted!

I am not sure what will happen to your work situation. Technically you are not allowed to work at the moment but I guess it is also a grey zone, because you are eligible for the work authorization and if USCIS accepts your late filing you get the extension letter and you are fine. I probably would not do anything and just wait what happens with the package.

Do you actually have a green card at the moment?

Get the packages out ASAP!

Sib

[Glyn and Kathy 288]

Hi, try not to worry too much. We had personal reasons as to why we filed 5 months late (i think it was) and we included a long apologetic letter along with proof of the reason why. Then we packed it with as much proof of our life together as possible. We were approved with no RFE. Now, Glyn should have left his job as soon as he found out he was out of status. Did he? No....we just kept on as we were knowing that he could get in trouble, but it worked out in the end.

Worst case scenario is you get called in see a judge and you explain yourself there. Good luck!

[Drogs 24]

Save some money, Dump the Lawyer.

[scotty2009 13]

"We also talked about replacing our lawyer but the situation as it is I really can't afford it financially and time wise. She knows the situation were in and she has been kind enough to wave her fee's to do this process, she does assume some of the burden aswell for this and she knows it and she is trying to make it right. I am angry as hell, but mistakes happen."

I think you have been given well- thought of advises.

I would like to add this.

If you can't afford a lawyer, I would suggest that you do the filing yourself.

Read the USCIS instructions.

It's nice to know that

you are kind-hearted about it, but whether or not she waived the fees, the

fact still remains - your immigration lawyer is stupid.

It will cost you more misery to continue using the services of this lawyer.

Don't buy the waiver of fee offers. She screwed up and it's YOUR

papers she messed with. Ultimately it's YOUR life that's gonna be messed up.

Things that happened to you only goes to prove that your lawyer is incompetent.

It was a mistake hiring her. But to continue using her services?

[trillium13 84]

Why are you using a lawyer at all? Nothing you've done so far is really as complicated as you think.