Return to US after denial i 751

[little immigrant 800]

13 minutes ago, Marloon said:

Yes, 18 months ago ( December 2016 filler)

Then they accepted your application and are working it. I'm sure you knew that already. 

 

Hang in there I know the wait is awful. 

[Marloon 3]

2 hours ago, little immigrant said:

Then they accepted your application and are working it. I'm sure you knew that already. 

 

Hang in there I know the wait is awful. 

My concern was not if they work / or rather don’t work on it, but what happenes at POE if it’s denied while I’m away and trying to return.  Even though I might sound crazy, that’s a legitimate reason to worry  still..:/

[Dashinka 23,252]

9 hours ago, Marloon said:

My concern was not if they work / or rather don’t work on it, but what happenes at POE if it’s denied while I’m away and trying to return.  Even though I might sound crazy, that’s a legitimate reason to worry  still..:/

I think @mindthegap said it best, only a judge can remove LPR status.  Go on your trip and if CBP gives you a problem upon return, remind them that only an immigration judge can remove LPR status.  You may have to go through secondary and there may be some waiting going on, but CBP, nor a letter from USCIS can decide case law on their own.

 

Good Luck and Safe Travels!

[xyz2019filer 3]

@Marloon

Hi ,I guess you are still under processing time and dont worry too much.

coming to my case I applied on Nov 3 2016 and still waiting . Not applied for N 400.

I went through second interview in dec 2017 and rfe in january 2018 and they sent one more letter to my HR requesting for few more documents couple of weeks back and still it is pending. My application is with local office since 8 months and now its pending background checks.

I know its so stressful and no doubt going into depression but we have to keep our selves  positive.

Good luck 

[Marloon 3]

11 hours ago, Bill & Katya said:

I think @mindthegap said it best, only a judge can remove LPR status.  Go on your trip and if CBP gives you a problem upon return, remind them that only an immigration judge can remove LPR status.  You may have to go through secondary and there may be some waiting going on, but CBP, nor a letter from USCIS can decide case law on their own.

 

Good Luck and Safe Travels!

Thank you @Bill & Katya !! 

I thought entry is not granted to anyone but US citizens and it’s up to CBP to decide if they let you in or not based on your circumstances and their understanding of it... I guess they could parole you in ( instead of regular admission) but I’m not sure to what type of situations it’s apllicable... 

[Marloon 3]

7 hours ago, SS DSM said:

@Marloon

Hi ,I guess you are still under processing time and dont worry too much.

coming to my case I applied on Nov 3 2016 and still waiting . Not applied for N 400.

I went through second interview in dec 2017 and rfe in january 2018 and they sent one more letter to my HR requesting for few more documents couple of weeks back and still it is pending. My application is with local office since 8 months and now its pending background checks.

I know its so stressful and no doubt going into depression but we have to keep our selves  positive.

Good luck 

Wow! This is a truly a nerve wracking, I hope you stay strong and positive! Hope you’ll receive a positive answer soon. 

So after a year of waiting your revived an interview notice followed by an RFE? 

What is your “HR”?  You have not sent sufficient amount of evidences with your original package or this interview was more like a random selection? 

[xyz2019filer 3]

@Marloon

I have sent all the evidences at the initial i 751 package. After a year when they called for interview I took few more like flight tickets pictures affidavits and tax returns again. Again they sent Rfe after the interview asking for tax returns which I already submitted twice. So sent them the tax returns again in the month of Jan 18 2018. After 6 months exactly they responded on June 18 2018 they contacted my Company HR asking for same set of documents W2 forms ,contact information ,I4 form employment documents..

 

They keep asking for same documents . Out case we have the issue due to the work we live in different states. 

[Keepinghope 32]

On 6/24/2018 at 3:25 PM, mindthegap said:

How legal do you want to get?

 

 

As I said before, you will drive yourself insane. Did you actually read my signature?

I myself received a denial. Still here. I have left and re-entered the US as a LPR, and remain a LPR with proof of that status. My N-400 and second I-751 are awaiting joint adjudication.

 

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96-12 Status of a conditional permanent resident after denial of I-751 during pendency of review by EOIR
August 6, 1996 

Status of a Conditional Permanent
resident after denial of I-751 during
pendency of review by EOIR

Office of the
General Counsel

I. QUESTIONS

The Benefits Division requests a legal opinion concerning the following questions:
1) What is the status of a conditional permanent resident after his I-751 has been denied by the director and his case is under review by the EOIR? Is the alien entitled to an I-551 stamp, adapted to show that his case is pending? Is the alien entitled to any other benefits associated with legal permanent resident status?

2) If an Order to Show Cause has not been issued, what is the alien's status and what documentation is the alien entitled to possess?
II. SUMMARY CONCLUSION

The director should issue the Order to Show Cause at the time he or she provides written notice to the alien of the decision to deny the Form I-751.

Strictly speaking, a conditional permanent resident whose Petition to Remove Conditions on Residence (Form I-751) has been denied by the director is no longer a lawful permanent resident, as of the date of the director's notice of termination. However, because the alien has a right under statute and regulation to request review of such determination in deportation proceedings, the conditional permanent resident whose status has been terminated should be issued a temporary I-551 during the pendency of such review. INS should not approve any Petition for Alien Relative (Form I-130) filed by the alien on behalf of another alien during the pendency of such proceedings.

III. ANALYSIS

Section 216 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1186a, provides that an alien spouse who is granted permanent resident status by means of marriage to a United States citizen which took place less than two years earlier shall be granted such status on a conditional basis. Unless otherwise specified by the statute or regulations, an alien granted permanent resident status pursuant to section 216 enjoys the same rights, privileges, responsibilities, and duties as other legal permanent residents. 8 C.F.R. § 216.1

The conditional basis of residence is removed via the approval of a Petition to Remove the Conditions on Residence (Form I-751) filed by the alien and spouse within 90 days before the second anniversary of the date on which the alien obtained lawful admission for permanent residence. The director of the regional service center has been delegated sole authority to adjudicate the Form I-751. 8 C.F.R. § 216.4(c). Where the director finds derogatory information pertaining to the validity of the marriage, he or she must offer the alien the opportunity to rebut such information. Id. If the alien is unable to overcome such derogatory information, the director ''may deny the joint petition, terminate the alien's permanent residence and issue an order to show cause to initiate deportation proceedings.'' Id. (emphasis added). Moreover, if the director proceeds to deny the Form I-751, he or she must provide written notice specifying the basis for the denial to the alien ''and shall issue an order to show cause why the alien should not be deported from the United States.'' 8 C.F.R. § 216.4(d)(2) (emphasis added). This regulatory language clearly provides that once the director denies the joint petition and terminates the alien's permanent residence, an order to show cause must follow.

The regulations further specify that the alien's lawful permanent residence status is terminated as of the date of the director's written decision. 8 C.F.R. § 216.4(d)(2). As of the date of denial, the alien is ''instructed to surrender any Alien Registration Receipt Card previously issued by the Service.'' Id. Accordingly, an alien whose Form I-751 has been denied has no status as a conditional permanent resident and is not entitled to an Alien Registration Receipt Card. Therefore, in light of the termination date of an alien's lawful permanent residence, and the gap that ensues if an order to show cause is not issued, failure to timely issue the order to show cause leaves INS vulnerable should an alien file an action in mandamus to compel performance of that requirement.

Concomitantly, an alien whose Petition to Remove Conditions on Residence has been denied by the director may seek review of the decision in deportation proceedings. INA § 216(c)(3)(D), 8 U.S.C. § 1186a(c)(3)(D), 8 C.F.R. § 216.4(d)(2). In fact, the statute specifically conditions termination of permanent resident status upon review in deportation proceedings. 1 Therefore, the terminated conditional lawful permanent resident should be issued a temporary Form I-551, during the pendency of the deportation proceedings. Cf. Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991)(''To revoke an LPR's green card pending completion of the deportation process would severely undermine the integrity of the process itself and impose significant hardship on the alien involved''). To that end, the INS' policy of placing an I-551 stamp on an alien's I-94 arrival card or passport is considered appropriate temporary evidence of legal permanent resident status during the duration of the deportation proceedings. Memorandum from James J. Hogan, INS Executive Associate Commissioner (Nov. 11, 1992), reported and reproduced in 69 Interpreter Releases 1560 (Dec. 14, 1992). Further, the temporary I-551 may be used to travel, to establish employment eligibility, or to establish lawful permanent resident status for purposes of obtaining school financial aid and other benefits.

However, because an alien whose Petition to Remove Conditions on Residence has been denied by the director is, strictly speaking, no longer a lawful permanent resident, the Service should not approve any Form I-130 filed by such an alien after issuance of the termination notice, but before resolution of the deportation proceeding. 8 C.F.R. § 216.4(d)(2). Nonetheless, as final termination of the alien's lawful permanent resident status is subject to review of the director's decision in deportation proceedings, we advise that if an alien in this situation does seek to file a Petition for Alien Relative, the Service should accept the petition as filed, but not adjudicate it pending conclusion of the deportation proceeding. Thus, if the alien recovers lawful permanent resident status in the deportation proceeding, the Form I-130 could be approved based on the priority date established when filed. Similarly, should the alien prevail before the immigration judge, the restoration of lawful permanent resident status would relate back to the date of termination. Thus, the period from the date of the director's notice of termination and the date of restoration of status would count as time accrued for purposes of eligibility for naturalization. Cf. INA § 216(e), 8 U.S.C. § 1186a(e).

 

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Also: 

 

Taken from USCIS  https://www.uscis.gov/sites/default/files/files/pressrelease/CRwaiver041003.pdf

"If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12)."