AOS denied because of 2 year waiver

[dalezz 0]

Hi everyone.

I am from the UK, moved to Chicago in November 2011, and married my USC finacee in January 2012 in accordance with the K1 process.

I have done the entire process so far myself because we couldn't really afford a lawyer and there have been no big problems until now.

We had my AOS interview on June 4th and it went very smoothly, was very quick, and the officer specifically told us "you are all apporved. You will receive your greencard in the mail in a week or so."

We were excited and went for dinner to celebrate and everything. Then 2 days later I got a request for further evidence asking me for proof that I had a waiver for the 2 year residency requirement.

I did a study abroad year in 2009/10 on a J1 student visa and was subject to live in the UK for 2 years following its expiration. I had never heard of the 2 year residency requirement and immediately applied for the waiver based on 'no objection' from the UK. I was granted my waiver no problem and the favourable recommendation from the UK embassy was forwarded to the USCIS on July 27th.

I expected to receive my 'AOS granted' letter, but instead a few days ago received one saying it was denied because I did not have that waiver on June 4th when I went for my initial interview and was never technically eligible for AOS.

I have no idea what to do! I am seeing an immigration lawyer on Monday, but I am scared they will have no suggestions. Technically and appeal has to provide new information or prove that they made a mistake. But they didn't technically, and I have no new information for them. I have the waiver, the UK government doesn't care that I didn't fulfil the 2 year residency so I have everything and am fully eligible to AOS. Does anybody know if there is any chance of me being able to request to reopen my case and have a repeat interview? Or of any similar situations where the USCIS have used administrative discretion to avoid ruining someone's life over a very minor technicality? I am terrified.

It just makes me feel sick that after jumping through all their hoops, spending every penny we have and waiting 15 months, I may be forced to leave my new wife right when we are about to start good jobs and start building our life together.

I apologise for the length of this post. I love this community, it has been so helpful in the past...

[LIFE'SJOURNEY 970]

Refile the AOS with the wavier acceptance letter, you are now eligibile to file for AOS. You jumped the gun too fast, you will just have to re-file and re-pay.

Op's didn't think about being denied after entrance on the VWP, that may be your hic-up. There is no appeal for being denied AOS after entrance on VWP.

Edited August 3, 2012 by LIFE'SJOURNEY

[Harpa Timsah 13,258]

The OP says he arrived on a K-1 visa. Is that true? The below advice is based on that being true.

Yes, you will have to refile the AOS, because the waiver must be accepted before the AOS is submitted. You will NOT have to leave your wife, so don't worry about that at all.

The question I have is why were you able to get the K-1 in the first place with the 2-year HRR in play? Technically the K-1 is a non-immigrant visa, but it specifically is designed for immigrant intent. This sort of issue should have been taken care of before the K-1 was even issued. I might have a talk with the embassy in London and your lawyer about that.

So, the worst case scenario is that you have to pay $1070 again. That sucks, for sure. But I hope knowing that that is the worst gives some solace. You will NOT have to leave your wife. I would spend some effort with a lawyer etc trying to figure out why you got the K-1 in the first place. Really sorry this happened. I would get a congressperson involved too, because this is just dumb on the part of the embassy, and it is NOT your fault.

Edited August 3, 2012 by Harpa Timsah

[dalezz 0]

Thank you so much for the replies, both of you. I really appreciate it.

I had never thought of that actually. On the information line and they said that I should have been told about the HRR when I received my J1. But I had an atypical experience when I got that as i got put in for 'additional administrative processing' which took 54 days and was sent my passport and visa in the mail so never got any kind of briefing about the HRR at the time.

But that is very interesting! Are you saying that I should have been required to get the HRR waiver as part of applying for my K1? If so that is definitely their mistake because id never heard of it.

I am seeing a lawyer on Monday so I will discuss this at length with her I am sure. Id really like to avoid repaying the $1070!!

Thanks again for the kind reassurance. Ill update when Ive spoken to the attorney.

[dalezz 0]

Oh sorry, I forgot to clarify, I entered on my K1 and only travelled internationally since being able to use advanced parole. I haven't reentered on the VWP or ESTA. I have been very careful to retain my status so as not to complicate things, and it looks like I won't be going anywhere for a while now anyway!

[Harpa Timsah 13,258]

Okay, well, I can tell you that at the time the I-485 is signed, the 2-year HRR must be taken care of, whether a waiver was obtained or the 2 years was completed. So, since your waiver was not obtained at the time you sent in the I-485, it could not have been approved. I expect your I-485 was denied without prejudice. That means you can apply again, now that the waiver is approved and in hand. I would make sure that whatever you have is the correct thing they need, for when you file again.

Now, I am not sure what can be done, and I expect nothing, but I would talk with a lawyer about how you were able to get the K-1 in the first place. Because, as I said, that seems wonky to me. You have my sympathies.

[dalezz 0]

Ok i spoke to two immigration attorneys and our congresswoman's immigration adviser. They all agreed that I should not have been issued my K1 without the waiver being in place. This counts as a service error. They also expressed that this should have been brought up on a couple of occasions when my J1 visa was asked about.

They also outlined my options.

Motion to reopen my case - $680, but could take 2 years for it to even get in front of a judge. So thats not really an option.

Reapply for my AOS I485 all over again - $1070 (again) and this takes the typical 5-6 months or so. During which I would have lawful AOS status again. So this is my most viable option.

However they also recommended writing to our congresswoman and seeing if she can get my case in front of a judge and have my case reopened before this month is up and I have to reapply all over again.

Her adviser felt this was a possibility and was what I would describe as somewhere between pessimistic and optimistic. I guess theres a lot of variables and its kind of a 50/50 whether she will be able to influence the new director of the Chicago USCIS office.

Nevertheless, my fate is in her hands for the next week or two, but I am compiling my second AOS as we speak. This blows.

[Harpa Timsah 13,258]

Well, I am glad a consensus has been reached. Good luck getting someone on your side to amend the service error. I have no idea of the protocol, but somehow USCIS should give you money or let you apply for AOS for free or something based on error. Hopefully someone farther up can help.

[dalezz 0]

Yeah, Im just extremely nervous and back playing the all too familiar USCIS waiting game.

Does anybody have any experience in applying for AOS a second time? (reapplying for AOS). I was looking at the checklist and it seems to be some parts that now i will be unable to provide!!

Parts of the AOS checklist I have an issue with applying a second time:

▪ Copy of Form I-797C Notice of Action (Approval Notice) - should this be the approval of the I130? because i cannot for the life of me find mine!

▪ Copy of passport page with non-immigrant K1 visa - my k1 is now expired

▪ Copy of valid I-94 form (front and back) - they ripped out my I94 at the AOS interview

oh god, this could pose a whole new set of problems for me... :-(

[Harpa Timsah 13,258]

Yeah, Im just extremely nervous and back playing the all too familiar USCIS waiting game.

Does anybody have any experience in applying for AOS a second time? (reapplying for AOS). I was looking at the checklist and it seems to be some parts that now i will be unable to provide!!

Parts of the AOS checklist I have an issue with applying a second time:

▪ Copy of Form I-797C Notice of Action (Approval Notice) - should this be the approval of the I130? because i cannot for the life of me find mine!

▪ Copy of passport page with non-immigrant K1 visa - my k1 is now expired

▪ Copy of valid I-94 form (front and back) - they ripped out my I94 at the AOS interview

oh god, this could pose a whole new set of problems for me... :-(

No, don't worry about that.

1. They have all that stuff in their files. They did not throw out your stuff, it is all in your file.

2. I presume you made copies? You can send in the copies. If not... well.... they still have it in your A file.

You don't have a I-130, do you? You should have applied for AOS based on an approved I-129F petition.

It doesn't matter that your K-1 is expired.

[dalezz 0]

Latest updates:

My congresswoman got the USCIS to reopen my case and waive the fee. They reopened it and reviewed my case and even acknowledged that they had made a service error in denying me before the end of my RFE response period. However they still denied me because I did not have the HRR waiver at the time of my interview and do not care that I have it now and there is actually no problem. It is simply their rigidity and frankly disgusting lack of discretion that I am being forced to reapply for AOS. In doing so they have also left me without work authorisation once again, and are denying me being able to visit my family back in England until this is fixed. It has already been almost a year since I saw them and now I will have to wait another 5/6 months for my second EAD and advanced parole.

I cannot believe this has happened for such an insignificant and moronic reason. I hate the way they do things.

Regardless, I must move forward. Does anybody know how it works when you apply for AOS again after a denial? is it less likely to be approved? does it take less time, or does it take even longer? Is it realistic to think that I could get away with carrying on working while I am waiting for my second EAD?

[NigeriaorBust 4,087]

You EAD died with the denial , you should no longer be working. If you are going to appeal they are less apt to overlook you flaunting the law than most people. I wouldn't want to risk it.

[Harpa Timsah 13,258]

A new AOS will work the same. EAD and AP should be approved in 3 months. I am glad there was some movement, but the outcome is not desirable, obviously. Best of luck.

Edit: Oh, I would request expedite EAD and AP based on USCIS error. Keep in touch with the congressperson.

Edited September 6, 2012 by Harpa Timsah

[dalezz 0]

Ok, I am reluctantly reapplying for AOS. I now have the waiver so there should be nothing missing this time.

I have most of the paperwork under control, however I was wondering if anyone could clarify this point:

Do I need to file a new I-130 or I-129f petition along with the new I-485?

I cannot find our original I-129f approval notice.

[Harpa Timsah 13,258]

The I-129F you have should still be in play. No need for something else.