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I-290B Motion to Reopen Denied I-751 due to abandonment

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Why the I-751 was denied?

ans: I was denied a I-751 Removal of Conditions for abandonment because I missed the interview as I was in the hospital. I contacted USCIS the day after the missed appointment. That was when I was able to. USCIS sent me a letter the next day but post marked it four days after they drafted it. The letter said I had 7 days to either drop off or mail back a letter requesting to reschedule and include documents to substantiate I was in the hospital. I did not get the letter until the day before I had to reply. I sent the reply the very next day with the documents back to the USCIS Service Center. Then two days later I received another letter from USCIS stating My petition was denied due to abandonment, and they were going to proceed with removal proceedings. I made an INFO pass. I brought the documents I had from the hospital. (I was transferred from one facility to the other so I only had the second facility discharge summary at the time with me). At the INFO pass they refused to overturn the removal proceedings stating that although they received my request to reschedule with hospital discharge it was still not enough as the second hospital admitted in the afternoon and it didn't prove why I missed my appointment that was scheduled for earlier that morning. My spouse did attend the INFO pass with me.

 

Why was the I-290B Motion to Reopen Denied?

Ans:  I filed the motion to reopen and submitted supporting evidence from both hospitals and ambulance transport to support that I was hospitalized the day the interview was scheduled. However, I applied for a fee waiver. I included a copy of a state means tested benefit and the underlying I-751 was eligible to have the fee waived. I received a I-797 with my I-290B and supporting evidence returned stating the fee needs to be paid and can resubmit with the fee. I am not working and my spouse cannot afford to pay the fee right now.

 

What is my question?

(1)Should I resubmit the fee waiver for a HARDSHIP or try to come up with the money and pay?  It would take longer to come up with the money?

(2) MOST IMPORTANT QUESTION: Would the resubmitted I-290B be denied. The I-797 did not specify a time frame for resubmitting? The instructions for the I-290B say a motion to reopen should be 33 calendar days from the denial. I am 53 days now past the date the I-751 was denied, eventhough the I-290B was first filed within the 33 calendar days. (it was filed on 29 days - it took time to get the hospital documents together). I don't want to come up with the money and have them take it and deny the I290b as being filed late.

(3) Should I just refile the I-751 without the Motion to Reopen? or Should I do both?  The instructions for the I-751 fee waiver just states "Fee Waiver You may be eligible for a fee waiver under 8 CFR 103.7(c). If you believe you are eligible for a fee waiver, complete Form I-912, Request for Fee Waiver (or a written request) and submit it and any required evidence of your inability to pay the filing fee with this petition. You can review the fee waiver guidance at www.uscis.gov/feewaiver. "

 

This is what the I-290B instructions state for Fee Waiver  (Its tricky because the instructions refer you to the I-912 instructions) It doesn't really specify whether the fee should be waived as a means-tested benefit, income at or below poverty, or hardship.

Fee Waiver
The fee for Form I-290B may be waived under 8 CFR 103.7(c) if the applicant or petitioner can show
an inability to pay
and:
1. The appeal or motion is from a denial of an immigration benefit request where the applicant or
petitioner was not required to pay a fee; or
2.    The fee for the underlying application or petition could have been waived."

If you believe you are eligible for a fee waiver, complete Form I-912, Request for Fee Waiver (or a written request) and submit it and any required evidence of your inability to pay the filing fee with this form. You can review the fee waiver guidance at www.uscis.gov/feewaiver.

No fee is required when Form I-290B is filed to appeal a denial of a petition for a special immigrant visa by a Special Immigrant Iraqi or Afghan national who worked for or on behalf of the U.S. Government in Iraq or Afghanistan.

 

Any advise is appreciated. I have been trying to find a pro-bono immigration attorney and none of them are pro-bono. The Attorney's immigration send with the denial proceedings are non-working numbers. I contacted USCIS and they said I have to find my own attorney. I am in Boston, MA

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Filed: Citizen (apr) Country: Canada
Timeline

I can see their reasoning for denying the i-751, if your hospital stay was elective (ie. scheduled surgery/procedure) and not an all-of-a-sudden emergency-related stay.  USCIS would question, if the hospital stay was known about in advance---and the interview was known about in advance---they would be questioning why you wouldn't have sent the rescheduling request earlier way back when you received the FIRST interview appointment notice.

 

The motion to reopen would have been denied for not attending the required interview/not rescheduling in time (again, if the hospital stay was an elective procedure you would have generally known about it in advance ) unless the hospital stay could be proven that it was something out of your control/emergency situation?

 

1 hour ago, ImmigrationNites said:

)Should I resubmit the fee waiver for a HARDSHIP or try to come up with the money and pay?  It would take longer to come up with the money?

Considering you just were able to pay for the first filing, you would be hard-pressed to prove extreme financial hardship in affording the second.  Yes, the first time around was expensive and financially you may be a bit tighter right now---but USCIS may not see it that way, and instead see it more as "if you could afford it the first time, why not the second time?"  But if you feel you can prove with substantiating documents that you are suffering  financial hardship and truly cannot pay for a second filing of the i-751, then you have the option to apply for a waiver.

 

1 hour ago, ImmigrationNites said:

This is what the I-290B instructions state for Fee Waiver  (Its tricky because the instructions refer you to the I-912 instructions) It doesn't really specify whether the fee should be waived as a means-tested benefit, income at or below poverty, or hardship.

Fee Waiver
The fee for Form I-290B may be waived under 8 CFR 103.7(c) if the applicant or petitioner can show
an inability to pay
and:
1. The appeal or motion is from a denial of an immigration benefit request where the applicant or
petitioner was not required to pay a fee; or
2.    The fee for the underlying application or petition could have been waived."

You are slightly misunderstanding something with the above guidelines. 

If your FIRST filing was previously fee-waived, THEN the fee for the i-290 can be waived.  Read this part again:

 

The appeal or motion is from a denial of an immigration benefit request where the applicant or
petitioner was not required to pay a fee;

 

As I understand you, you DID pay the fee for the first i-751 filing, correct?  If so, then the fee for the i-290 cannot be waived following the guidelines you posted.  

 

Edited by Going through

Applied for Naturalization based on 5-year Residency - 96 Days To Complete Citizenship!

July 14, 2017 (Day 00) -  Submitted N400 Application, filed online

July 21, 2017 (Day 07) -  NOA Receipt received in the mail

July 22, 2017 (Day 08) - Biometrics appointment scheduled online, letter mailed out

July 25, 2017 (Day 11) - Biometrics PDF posted online

July 28, 2017 (Day 14) - Biometrics letter received in the mail, appointment for 08/08/17

Aug 08, 2017 (Day 24) - Biometrics (fingerprinting) completed

Aug 14, 2017 (Day 30) - Online EGOV status shows "Interview Scheduled, will mail appointment letter"

Aug 16, 2017 (Day 32) - Online MYUSCIS status shows "Interview Scheduled, read the letter we mailed you..."

Aug 17, 2017 (Day 33) - Interview Appointment Letter PDF posted online---GOT AN INTERVIEW DATE!!!

Aug 21, 2017 (Day 37) - Interview Appointment Letter received in the mail, appointment for 09/27/17

Sep. 27, 2017 (Day 74) - Naturalization Interview--- read my experience here

Sep. 27, 2017 (Day 74) - Online MYUSCIS status shows "Oath Ceremony Notice mailed"

Sep. 28, 2017 (Day 75) - Oath Ceremony Letter PDF posted online--Ceremony for 10/19/17

Oct. 02, 2017 (Day 79) -  Oath Ceremony Letter received in the mail

Oct. 19, 2017 (Day 96) -  Oath Ceremony-- read my experience here

 

 

 

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Just file a new I-751, pay the fee, and get used to a long wait again.

As soon as you have the new extension letter go to an infopass for a new stamp.

 

An I-290B would have I suspect been a waste of time in my case, and an unknown wait time, and the fee was a similar amount to a new I-751 so I just didn’t bother with one. It’s not an appeal remember - it is an application to re-evaluate the decision based on incorrect application of policy originally

Edited by mindthegap

CR1 / DCF (London): 2012 / 2013 (4 months from I-130 petition to visa in hand)

I-751 #1- April 2015 [Denied]

 

April 2015 : I-751 Joint filing package sent fedex next day 09:00am from UK ($lots - thanks). 
Jan 2017: Notification that an interview has been scheduled at a local office. Bizarrely still no RFE... 
Jan 2017: 2hr wait, then interview terminated before it began, due to moving my ID to another state 2 wks prior. New interview 'in a few months...maybe.'   Informed them that divorce proceedings are underway, but not finalised at this time. 
March 2017: An Interview was scheduled - marked as no-show as they didn't actually send out a notification of interview. FML 
April  2017: Filed an official complaint with the ombudsman, and have requested Senator & Congressman assistance
August 2017: Interview - switched to a (finalised) divorce waiver. Told that decision will be made that afternoon, but no problems foreseen with my case. 
October 2017: Letter of Denial received - reason given as 'I-751 petition was not properly filed'. Discovered ex-spouse made false allegations to USCIS in 2015. No opportunity given to review & refute allegations  - contrary to USCIS policy.

I-751 #2 - Oct 2017 - Mar 2021[Denied] 

 

October 2017: Within 72hrs of receiving denial notice, a new waiver I-751, divorce decree & $680 cheque, sent to Vermont via FedEx overnight 9am priority.  
Dec 2019: Filed FOIA request for full A# file
Feb 2020: FOIA request completed - entire A# file received as a .PDF; 197 pages fully redacted, and 80 partially redacted. Don't waste your time!
March 2021: I-751 #2 denied for lack of evidence. No RFE, no interview, and evidence in previous I-751 not reviewed - contrary to policy. Huge errors in adjudication.

N-400 - Feb 2018 - Apr 2021 [Denied]

 

February 2018: N-400 filed online.  $725 paid to the USCIS paperwork wastage fund

February  2019: Interview - cancelled after a four hour wait due to 'missing paperwork' on their end. Promised Expedited reschedule.

March 2021: Interview letter received, strangely dated after I-751 denial. No I-751 interview conducted. N-400 interview and test passed, given 'cannot make a decision at this time' paper due to the ongoing I-751 nightmare...

April 2021: N-400 denial received citing recent I-751 denial as basis for ineligibility, even though it should have been a combo interview 🤯

I AM JACK'S COMPLETE LACK OF SURPRISE

 I-751 Service Motion - March 2021 [Sent via FedEx & COMPLETELY IGNORED by USCIS]

 

March 2021: Service Motion request sent overnight addressed direectly to field office director, requesting urgent review and re-opening, based on errors in adjudication - citing USCIS policy, AFM and memorandums as basis for errors. This was completely ignored by USCIS.

 I-751 #3 - June 2021 - Jan 2024 [Denied]

 

IT'S GROUNDHOG DAY

June 2021: I-751 #3 (30+lbs/5000 pages of paperwork) & another $680 sent to USCIS via FedEx ($300+..thanks) .... 

June 2021: Receipt issued, card charged, biometrics waived, infopass scheduled for I-551 stamp number ten.....

Feb 2022: RFIE (no, not an RFE, a Request For Initial Evidence) received, for copies of the divorce paperwork that they already have 😑

July 2022: Infopass for I-551 stamp number eleven.....

August 2023: Infopass for I-551 stamp number twelve....

January 2024: Denial received, ignoring the overwhelming majority of the filing, abundance of evidence, and refutation of a provably false allegation. The denial also contradicts itself in multiple places, as if it was written by someone with an IQ <50.

HAPPY NEW YEAR

 

2024: FML. Seriously. I'm done. 

 

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The initial I-751 fee was waived also. This is why I submitted for a fee waiver. But apparently you have to be experiencing a hardship as well as the I-290 instructions state : The fee for Form I-290B may be waived under 8 CFR 103.7(c) if the applicant or petitioner can show
an inability to pay: 

 

reading through the instructions for 912 the only way to demonstrate is to complete the hardship section as proof of inability to pay. I initially thought means-testing benefit would be enough but apparently it wasn't.

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27 minutes ago, Going through said:

I can see their reasoning for denying the i-751, if your hospital stay was elective (ie. scheduled surgery/procedure) and not an all-of-a-sudden emergency-related stay.  USCIS would question, if the hospital stay was known about in advance---and the interview was known about in advance---they would be questioning why you wouldn't have sent the rescheduling request earlier way back when you received the FIRST interview appointment notice.   It was an emergency admission.

 

The motion to reopen would have been denied for not attending the required interview/not rescheduling in time (again, if the hospital stay was an elective procedure you would have generally known about it in advance ) unless the hospital stay could be proven that it was something out of your control/emergency situation?

 

Considering you just were able to pay for the first filing, you would be hard-pressed to prove extreme financial hardship in affording the second.  Yes, the first time around was expensive and financially you may be a bit tighter right now---but USCIS may not see it that way, and instead see it more as "if you could afford it the first time, why not the second time?"  But if you feel you can prove with substantiating documents that you are suffering  financial hardship and truly cannot pay for a second filing of the i-751, then you have the option to apply for a waiver.

 

You are slightly misunderstanding something with the above guidelines. 

If your FIRST filing was previously fee-waived, THEN the fee for the i-290 can be waived.  Read this part again:

 

The appeal or motion is from a denial of an immigration benefit request where the applicant or
petitioner was not required to pay a fee;

 

As I understand you, you DID pay the fee for the first i-751 filing, correct?  If so, then the fee for the i-290 cannot be waived following the guidelines you posted.  

 

 

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25 minutes ago, mindthegap said:

Just file a new I-751, pay the fee, and get used to a long wait again.

As soon as you have the new extension letter go to an infopass for a new stamp.

 

An I-290B would have I suspect been a waste of time in my case, and an unknown wait time, and the fee was a similar amount to a new I-751 so I just didn’t bother with one. It’s not an appeal remember - it is an application to re-evaluate the decision based on incorrect application of policy originally

I just read through your timeline - phew!

 

So did you get a removal proceedings letter? I ask because my concern is whether or not refiling will do anyting if i'm already in removal proceedings.

 

I got the fee waived for the I-751 the first time. I see you have what looks like two petitions pending. Would it hurt to resubmit the I-290B with hardship and mean-tested benefits as proof and resubmit the I-751 with a fee waiver also?

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No- I filed a fresh I-751 very quickly within a few days of denial. 

 

Of course filing a fresh I751 will do something - it is expressly permitted to file new and multiple I-751s at ANY time until a final order of removal is made by an immigration judge in court (which is the point that permanent residence is terminated), and they MUST be adjudicated, on their merits, by USCIS before a hearing can be concluded. 

 

Forget the motion to re-open, and just forget about that denied I-751 completely - it has gone. USCIS do not like admitting when they have made mistakes, and you are fighting a losing battle with an I-290B. 

File a fresh I-751, and get yourself back in full unambiguous status with proof of it, and await what happens then. It is the path of least uncertainty and resistance. 

Edited by mindthegap

CR1 / DCF (London): 2012 / 2013 (4 months from I-130 petition to visa in hand)

I-751 #1- April 2015 [Denied]

 

April 2015 : I-751 Joint filing package sent fedex next day 09:00am from UK ($lots - thanks). 
Jan 2017: Notification that an interview has been scheduled at a local office. Bizarrely still no RFE... 
Jan 2017: 2hr wait, then interview terminated before it began, due to moving my ID to another state 2 wks prior. New interview 'in a few months...maybe.'   Informed them that divorce proceedings are underway, but not finalised at this time. 
March 2017: An Interview was scheduled - marked as no-show as they didn't actually send out a notification of interview. FML 
April  2017: Filed an official complaint with the ombudsman, and have requested Senator & Congressman assistance
August 2017: Interview - switched to a (finalised) divorce waiver. Told that decision will be made that afternoon, but no problems foreseen with my case. 
October 2017: Letter of Denial received - reason given as 'I-751 petition was not properly filed'. Discovered ex-spouse made false allegations to USCIS in 2015. No opportunity given to review & refute allegations  - contrary to USCIS policy.

I-751 #2 - Oct 2017 - Mar 2021[Denied] 

 

October 2017: Within 72hrs of receiving denial notice, a new waiver I-751, divorce decree & $680 cheque, sent to Vermont via FedEx overnight 9am priority.  
Dec 2019: Filed FOIA request for full A# file
Feb 2020: FOIA request completed - entire A# file received as a .PDF; 197 pages fully redacted, and 80 partially redacted. Don't waste your time!
March 2021: I-751 #2 denied for lack of evidence. No RFE, no interview, and evidence in previous I-751 not reviewed - contrary to policy. Huge errors in adjudication.

N-400 - Feb 2018 - Apr 2021 [Denied]

 

February 2018: N-400 filed online.  $725 paid to the USCIS paperwork wastage fund

February  2019: Interview - cancelled after a four hour wait due to 'missing paperwork' on their end. Promised Expedited reschedule.

March 2021: Interview letter received, strangely dated after I-751 denial. No I-751 interview conducted. N-400 interview and test passed, given 'cannot make a decision at this time' paper due to the ongoing I-751 nightmare...

April 2021: N-400 denial received citing recent I-751 denial as basis for ineligibility, even though it should have been a combo interview 🤯

I AM JACK'S COMPLETE LACK OF SURPRISE

 I-751 Service Motion - March 2021 [Sent via FedEx & COMPLETELY IGNORED by USCIS]

 

March 2021: Service Motion request sent overnight addressed direectly to field office director, requesting urgent review and re-opening, based on errors in adjudication - citing USCIS policy, AFM and memorandums as basis for errors. This was completely ignored by USCIS.

 I-751 #3 - June 2021 - Jan 2024 [Denied]

 

IT'S GROUNDHOG DAY

June 2021: I-751 #3 (30+lbs/5000 pages of paperwork) & another $680 sent to USCIS via FedEx ($300+..thanks) .... 

June 2021: Receipt issued, card charged, biometrics waived, infopass scheduled for I-551 stamp number ten.....

Feb 2022: RFIE (no, not an RFE, a Request For Initial Evidence) received, for copies of the divorce paperwork that they already have 😑

July 2022: Infopass for I-551 stamp number eleven.....

August 2023: Infopass for I-551 stamp number twelve....

January 2024: Denial received, ignoring the overwhelming majority of the filing, abundance of evidence, and refutation of a provably false allegation. The denial also contradicts itself in multiple places, as if it was written by someone with an IQ <50.

HAPPY NEW YEAR

 

2024: FML. Seriously. I'm done. 

 

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1 hour ago, mindthegap said:

No- I filed a fresh I-751 very quickly within a few days of denial. 

 

Of course filing a fresh I751 will do something - it is expressly permitted to file new and multiple I-751s at ANY time until a final order of removal is made by an immigration judge in court (which is the point that permanent residence is terminated), and they MUST be adjudicated, on their merits, by USCIS before a hearing can be concluded. 

 

Forget the motion to re-open, and just forget about that denied I-751 completely - it has gone. USCIS do not like admitting when they have made mistakes, and you are fighting a losing battle with an I-290B. 

File a fresh I-751, and get yourself back in full unambiguous status with proof of it, and await what happens then. It is the path of least uncertainty and resistance. 

Thanks. I read several blogs. some said to file the I-290b along with a new I-751. But I guess since it got kicked back there is evidence to support that we tried and then refile the I-751 with updated they requested we bring to the interview. Immigration is really is a mess now. I see how they are negligently denying people. I re-read the denial for the I-290B submission and it said "Based on our currently policy, the application or petition you filed is not eligible for a fee waiver. For a list of applications and petitions that can be considered for a fee waiver request, please refer to form I-912.

 

The I-290 instructions say a fee can be waived if unable to pay and can prove the two items and refers to the fee waiver I-912.

The I-912 states eligible fees to be waived and includes the I-751.

 

to me the current policy is deny all request from this administration. right now is not a good time for adjusting status for anyone. Looks like the current policy is find any technicality you deem fit to screw someone over. I thought about a congressional inquiry but not sure what it could do other than piss off some jerk off who has the legal basis and ambiguity to screw with your family.

 

Thanks for your advise and best of luck with your VJ

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