Late filing (years). I-751 or restart with I-485 and I-130

[omnihk 1]

Good afternoon,

I'm looking for some advice regarding my immigration status.

I came to the US in December 2002 on a K1 marriage visa. We were married in March 2003. I followed the paperwork and filed I-485 and was granted a 2 year Permanent Resident Status. All went well and within the time limits given.

The trouble is, I did not file I-751 in a timely manner and the card expired in 2005.

I have a social security number, have been gainfully employed for years, am still married, pay my taxes each year, own a home and have not left the US, if that makes any difference.

My question is, and I obviously know a ridiculous amount of time has passed, should I now file the I-485 again with an I-130 (my wife is a full US citizen and we have a child (born in 2009)) or should I attempt to file an I-751? Or is there something else I should do?

Thank you for any pointers.

Jeff

[KayDeeCee 4,903]

You never received notice that the USCIS was terminating your conditional residence? No notice of removal proceedings? Write an apologetic letter being truthful about why you never filed as you now file the I-751? This is beyond simply filing a little late though. Perhaps it would be wise to consult an immigration attorney.

~ Moved from AOS from Family Based Visas to Removing Conditions - topic is ROC ~

[Pitaya 2,580]

1. Effect of not filing. If this petition is not filed, you will automatically lose your permanent resident status two years from the date on which you were granted conditional status. You will then become removable from the United States.

Ref: Page 1, https://www.uscis.gov/sites/default/files/files/form/i-751instr.pdf

It seems pretty clear from the Form I-751 instructions the consequences of not filing ROC petition. I agree with KayDeeCee, suggest that you retain the services of competent immigration counsel soonish.

Good luck on your immigration journey.

Edited June 30, 2016 by Pitaya

[Penguin_ie 6,002]

Third the suggestion for a lawyer.

[NigeriaorBust 4,088]

Since you didn't file , you lost your right to work in the US and have illegal work . This is definitely not a do it yourself case. You have probably had a deportation order against you for a long time. Have you moved since your original address ? Lawyer up

[omnihk 1]

Thank you all for the responses.

My address on file has remained the same, I've never received any notice that my conditional status was to be removed, which I understand does not mean it didn't happen.

I will contact a lawyer. Thank you.

[KayDeeCee 4,903]

Thank you all for the responses.

My address on file has remained the same, I've never received any notice that my conditional status was to be removed, which I understand does not mean it didn't happen.

I will contact a lawyer. Thank you.

They would have to notify you of their intent. You would have to go before an immigration judge for removal proceedings. None of that has happened. Get a lawyer and file the I-751. Include tons of bona fide marriage evidence, since you have been married so long, you should have plenty.

§ 1216.3 Termination of conditional resident status.

(a) During the two-year conditional period. The director shall send a formal written notice to the conditional permanent resident of the termination of the alien's conditional permanent resident status if the director determines that any of the conditions set forth in section 216(b)(1) or 216A(b)(1) of the Act, whichever is applicable, are true, or it becomes known to the government that an alien entrepreneur who was admitted pursuant to section 203(b)(5) of the Act obtained his or her investment capital through other than legal means (such as through the sale of illegal drugs). If the Service issues a notice of intent to terminate an alien's conditional resident status, the director shall not adjudicate Form I-751 or Form I-829 until it has been determined that the alien's status will not be terminated. During this time, the alien shall continue to be a lawful conditional permanent resident with all the rights, privileges, and responsibilities provided to persons possessing such status. Prior to issuing the notice of termination, the director shall provide the alien with an opportunity to review and rebut the evidence upon which the decision is to be based, in accordance with §103.2(b)(2) of 8 CFR chapter I. The termination of status, and all of the rights and privileges concomitant thereto (including authorization to accept or continue in employment in this country), shall take effect as of the date of such determination by the director, although the alien may request a review of such determination in removal proceedings. In addition to the notice of termination, the director shall issue a notice to appear in accordance with 8 CFR part 1239. During the ensuing removal proceedings, the alie n may submit evidence to rebut the determination of the director. The burden of proof shall be on the Service to establish, by a preponderance of the evidence, that one or more of the conditions in section 216(b)(1) or 216(b)(1) of the Act, whichever is applicable, are true, or that an alien entrepreneur who was admitted pursuant to section 203(b)(5) of the Act obtained his or her investment capital through other than legal means (such as through the sale of illegal drugs).

https://www.ilw.com/articles/2005,0621-wheeler.shtm

Timely filing. All conditional residents must file an I-751 within the 90-day period before their conditional residence expires, which is two years after they adjust or immigrate. If they fail to meet that deadline, the USCIS "shall terminate the permanent resident status." But that doesn't mean they have no relief available. They should still file a late petition, no matter how late it is and no matter what the reasons. The statute provides for the granting of petitions if the tardiness is due to "good cause and extenuating circumstances." But in reality, the agency has been relatively lenient in accepting late applications. The worst that can happen is that the USCIS denies the application and the alien is placed into removal proceedings. There, an immigration judge adjudicates the I-751 de novo (without regard to the USCIS's decision), and the lateness of the filing is irrelevant. However, the immigration judge can only adjudicate I-751's that have first been filed with the USCIS. So always file an I-751 with the USCIS to preserve your client's rights.

[omnihk 1]

Thank you again, I contacted a lawyer for an initial consultation and continuing the process on with a very late I-751 appears to be the way to go. I appreciate the advice.

[KayDeeCee 4,903]

You are welcome, and good luck with your late filing.

[KayDeeCee 4,903]

Trolls cannot read well.

[caliliving 606]

it is fine to work unauthorized as long as you never claimed to be a USC.. i assume you just need to file the i751 and see what happens from there

[Pitaya 2,580]

~Non-constructive comment removed~

~Post constructively, or do not post.~

Pitaya

VJ Moderation

Edited July 2, 2016 by Pitaya