i-751 Divorce Waiver Denied

[beso36 2]

7 hours ago, Montu.developer said:

Hi,

 

I would suggest you to hire a lawyer. Lawyer could provide you more information. 

 

1) What was your filing date?

2) Did you receive an RFE earlier?

 

 

i filed in April 2017 and i didn't get RFE, Just the interview.

[Waittrain 17]

47 minutes ago, beso36 said:

i filed in April 2017 and i didn't get RFE, Just the interview.

What proofs did you submitted?

 

How long was your marriage lasted?

[Villanelle 4,121]

Quote

 

First I want to clarify something I received a PM about.

When I said 'refiling will put you back in auth stay' I wasnt very clear.

When your 751 is denied your status is terminated. They will send you a NTA. But technically you do have a status is just not that of an LPR. Its a temporary status to allow you to stay in the US while you are in court proceedings. Do NOT leave the US. When you are in court like this you can not leave the US - its a 10yr ban. You can also go to infopass and get a 551 stamp.

 

So you are not illegal when the 751 is denied and your status terminated. However you are not a permanent resident either- they terminated it. You can still legally work if you are employed- The time between your status being terminated and your status being reinstated by either the judge ruling in your favor in court or submitting and getting a new 751 approved does not count as out of status. Your clock for natrulization also goes back to when the GC was first issued. If you are not reinstated it is considered out of status time.

 

If you do not fix the denial (judge rules against you) you will be subject to deportation. So you can fight the denial (this involves submitting a new 751 and asking Judge for time for USCIS to review and approve it and/or presenting evidence in court and getting a favorable ruling so the old 751 will go back to USCIS for approval) or you can not fight the denial and ask for your conditional status to be closed so you can apply for AOS through new spouse. (and also to not deport you once they close it)

 

Its important to note that these matters are complex and small details matter. Immigration is governed by laws, policies, memos and court decisions. Also there are various circuit courts in the US. Depends where you live. An attny can review the specifics of your case and advise you of the best path to take. For most people this is refiling because it goes through USCIS again. Your situation may be different. Speak to your current lawyer and then speak to other lawyers and see what they have to say. All I can do is give you general information. I am not well versed on court procedures nor do I know anyone on this forum that is. This is a DIY website geared towards general filing- and your case is not DIY.

 

Anyway you cant just submit the same exact 751 packet again. The denial letter should outline the specific issues they had with you. You need to address the issues. You can use a new waiver category but if you use the same category you need new evidence. If you file a new AOS the 130 goes to USCIS to be approved and then I believe the 485 is approved by the Judge. Some time through out the lengthy court process both marriages are looked at and both need to be bonafide.

[Jojo92122 1,924]

On 8/12/2018 at 10:25 AM, beso36 said:

Thanks for your reply but I don’t think you have any rights to tell me what to do. Yeah, I am looking for advice from people who knows the facts or tell me about similar experience. The reply above wasn’t an experience or a fact, So from my little understanding if I am not sure about something , i don’t state it as facts. Also you are not in my shoe so don’t judge what you don’t know.

Read the TOS on VJ.  You don't have the right to tell people what to do either.  This includes you not being able to tell people to not post in response to a question posted in a public forum.  

Sorry about your situation.  

Go see a qualified immigration lawyer.  You have been given good advice that you have discounted.  Since you don't believe posters here, maybe you need to get a different opinion.  

[beso36 2]

16 hours ago, Damara said:

First I want to clarify something I received a PM about.

When I said 'refiling will put you back in auth stay' I wasnt very clear.

When your 751 is denied your status is terminated. They will send you a NTA. But technically you do have a status is just not that of an LPR. Its a temporary status to allow you to stay in the US while you are in court proceedings. Do NOT leave the US. When you are in court like this you can not leave the US - its a 10yr ban. You can also go to infopass and get a 551 stamp.

 

So you are not illegal when the 751 is denied and your status terminated. However you are not a permanent resident either- they terminated it. You can still legally work if you are employed- The time between your status being terminated and your status being reinstated by either the judge ruling in your favor in court or submitting and getting a new 751 approved does not count as out of status. Your clock for natrulization also goes back to when the GC was first issued. If you are not reinstated it is considered out of status time.

 

If you do not fix the denial (judge rules against you) you will be subject to deportation. So you can fight the denial (this involves submitting a new 751 and asking Judge for time for USCIS to review and approve it and/or presenting evidence in court and getting a favorable ruling so the old 751 will go back to USCIS for approval) or you can not fight the denial and ask for your conditional status to be closed so you can apply for AOS through new spouse. (and also to not deport you once they close it)

 

Its important to note that these matters are complex and small details matter. Immigration is governed by laws, policies, memos and court decisions. Also there are various circuit courts in the US. Depends where you live. An attny can review the specifics of your case and advise you of the best path to take. For most people this is refiling because it goes through USCIS again. Your situation may be different. Speak to your current lawyer and then speak to other lawyers and see what they have to say. All I can do is give you general information. I am not well versed on court procedures nor do I know anyone on this forum that is. This is a DIY website geared towards general filing- and your case is not DIY.

 

Anyway you cant just submit the same exact 751 packet again. The denial letter should outline the specific issues they had with you. You need to address the issues. You can use a new waiver category but if you use the same category you need new evidence. If you file a new AOS the 130 goes to USCIS to be approved and then I believe the 485 is approved by the Judge. Some time through out the lengthy court process both marriages are looked at and both need to be bonafide.

Thanks a lot for the detailed explanation, it makes more sense. Appreciate your opinion and time to write this. The issue here that I send everything we have together from the first marriage like bank statements, credit card, health insurance and photos with also other documents but they mentioned it 's insufficient because we got separated for marital issues after getting my Conditional GC. But I think you are right will try to collect extra evidence and resubmit it again. 

[beso36 2]

16 hours ago, Jojo92122 said:

Read the TOS on VJ.  You don't have the right to tell people what to do either.  This includes you not being able to tell people to not post in response to a question posted in a public forum.  

Sorry about your situation.  

Go see a qualified immigration lawyer.  You have been given good advice that you have discounted.  Since you don't believe posters here, maybe you need to get a different opinion.  

Thanks. I read However, I didn't agree with what she wrote and replied to her. Thanks for your advice.

[ApplyingforN400 126]

On 8/12/2018 at 7:02 AM, Damara said:

Generally you are a LPR until a judge says otherwise however conditional GCs are treated differently then unrestricted 10yr GCs. 

 

If or when USCIS denies a 751 your status is immediately terminated and you are sent to removal proceedings in court. You can not appeal. The judge will review the denial and USCIS has to prove they were correct in denying you. So when your 751 is denied the first thing you should do is file another one because you have no status and refiling will put you back in 'authorized stay' until its approved (and you can keep working).

 

Now I know this makes no sense. If your status is terminated then how are you able to refile? Its because the law allows you to file/refile (repeatedly if needed) the 751 up to a removal order being issued. Does that make sense?

 

For the OP- Im sorry you are going through this. An attny will be helpful to you.

 

You were just denied yesterday. So you are now out of status/no work auth. You need to file something if you want to remain in the US. USCIS's policy is once denied the 751 they send you a letter explaining why and send you to court. The letter can take up to 30 days to get but you should get it sooner. (unless your attny already got it) Then you wait for the NTA. (notice to appear). You MUST appear. But be advised it can take them a long time to send a NTA or it can come quickly. There is no min or maximum timeframe for them to get the NTA to you.

 

In court you can renew your 751 and the judge will review it and if you are successful it will get sent back to USCIS for approval. (judges cant adjudicate 751s)  If you are unsuccessful removal proceedings will go forward and you can request them to be stopped due to the fact that you are eligible (and applying for) another benefit (marriage AOS).

 

If you choose not to purse the 751 renewal in court basically skip the first sentence of the last paragraph. File the 130 packet. Removal proceedings will go forward and you need to get them stopped to proceed with AOS.

 

Court proceedings can take years to be resolved.

 

You do need to be aware that if you file for AOS after a 751 denial you have to prove BOTH marriages were legit to get approved for the new AOS.  They do not allow a new marriage/AOS to be used as a work around for a 751 denial. So remarriage does not make the problem go away.

 

If you were denied the 751 because of fraud or suspected fraud you will not be able to AOS. If it was denied because of lack of evidence you need to overcome this and prove the marriage was legit (and then prove the new marriage is legit)

 

This is just general info. An attny can review your case and advise you of the best path to take.

 

Not true. If your I751 is denied, you can submit a new one immediately and USCIS has to honor another year extension. 

 

 

[ApplyingforN400 126]

17 minutes ago, ApplyingforN400 said:

Not true. If your I751 is denied, you can submit a new one immediately and USCIS has to honor another year extension. 

Edit: I just saw you wrote “authorized stay”

 

that is mental loops for immigrants who are stressed out. 

 

When you become a PR, you are a PERMANENT RESIDENT of the US until a judge says otherwise. There is no inbetween regardless of who tries to scare you to get you to confess something for the judge to use against you. 

 

 

It is important to know that it is the LAW who grants immigration benefits not USCIS, USCIS is only a paperwork collection agency to be used in immigration court. They DO NOT grant immigration benefits, they just provide the service which means they can NOT remove your PR status given to you by LAW, they can reject paperwork and then that paperwork is taken to court to get looked at in the most just manner in the country. 

 

LAWS grant immigration benefits, LAWS are made by congress and reviewed by judges. USCIS is paper collection agency with people trained to build a case against you in court. That is why we call congressmen so they can tell the agency “why arent you following the laws I created” and judges decide everything even for illegal immigrants caught at the border. Something trump wants to change but he cant. Because a gov agency is just that. A service agency they can never be just like the courts. 

 

Edited August 15, 2018 by ApplyingforN400

[mindthegap 2,550]

As one of the few on here who has experienced a denial, and is still going through this hell, despite the OPs aggresiveness and somewhat rude tone, I feel I should contribute.

 

The law does sort of contradict itself in some respects, but between an I-75 denial and a final order of removal, you remain a LPR with the right to work. You are  also entitled to proof of status in the form of a stamp. This is backed up by case law and also clarification by USCIS and the EOIR.

 

However, filing a fresh I-751 is the best way to go, as it not only puts you absolutely in unambiguous territory, with a fresh extension letter issues and no issues travelling,it also must be adjudicated on its merits before any court proceeding can continue or a final order of removal (which terminates your status) can be made.

If you file a new I-751 quickly enough after denial, it may even avoid an NTA in the first place.

 

 

 

 

 

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)."

 

 

""Genco Opinon 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)."

 

 

 

 

Edited August 15, 2018 by mindthegap

[beso36 2]

5 minutes ago, mindthegap said:

As one of the few on here who has experienced a denial, and is still going through this hell, despite the OPs aggresiveness and somewhat rude tone, I feel I should contribute.

 

The law does sort of contradict itself in some respects, but between an I-75 denial and a final order of removal, you remain a LPR with the right to work. You are  also entitled to proof of status in the form of a stamp. This is backed up by case law and also clarification by USCIS and the EOIR.

 

However, filing a fresh I-751 is the best way to go, as it not only puts you absolutely in unambiguous territory, with a fresh extension letter issues and no issues travelling,it also must be adjudicated on its merits before any court proceeding can continue or a final order of removal (which terminates your status) can be made.

If you file a new I-751 quickly enough after denial, it may even avoid an NTA in the first place.

 

 

 

 

 

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)."

 

 

""Genco Opinon 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)."

 

 

 

 

Your contribution revealed a lot of my stress. My only question, I remarried, I got an advice from the lawyer about filing new i-130,i-465 with the note that we still need to prove both marriages are bonafide However adding my second marriage to the case would lift less pressure on the whole case, @mindthegap what do you think? 

[ApplyingforN400 126]

On 8/13/2018 at 10:23 PM, Damara said:

First I want to clarify something I received a PM about.

When I said 'refiling will put you back in auth stay' I wasnt very clear.

When your 751 is denied your status is terminated. They will send you a NTA. But technically you do have a status is just not that of an LPR. Its a temporary status to allow you to stay in the US while you are in court proceedings. Do NOT leave the US. When you are in court like this you can not leave the US - its a 10yr ban. You can also go to infopass and get a 551 stamp.

 

So you are not illegal when the 751 is denied and your status terminated. However you are not a permanent resident either- they terminated it. You can still legally work if you are employed- The time between your status being terminated and your status being reinstated by either the judge ruling in your favor in court or submitting and getting a new 751 approved does not count as out of status. Your clock for natrulization also goes back to when the GC was first issued. If you are not reinstated it is considered out of status time.

 

If you do not fix the denial (judge rules against you) you will be subject to deportation. So you can fight the denial (this involves submitting a new 751 and asking Judge for time for USCIS to review and approve it and/or presenting evidence in court and getting a favorable ruling so the old 751 will go back to USCIS for approval) or you can not fight the denial and ask for your conditional status to be closed so you can apply for AOS through new spouse. (and also to not deport you once they close it)

 

Its important to note that these matters are complex and small details matter. Immigration is governed by laws, policies, memos and court decisions. Also there are various circuit courts in the US. Depends where you live. An attny can review the specifics of your case and advise you of the best path to take. For most people this is refiling because it goes through USCIS again. Your situation may be different. Speak to your current lawyer and then speak to other lawyers and see what they have to say. All I can do is give you general information. I am not well versed on court procedures nor do I know anyone on this forum that is. This is a DIY website geared towards general filing- and your case is not DIY.

 

Anyway you cant just submit the same exact 751 packet again. The denial letter should outline the specific issues they had with you. You need to address the issues. You can use a new waiver category but if you use the same category you need new evidence. If you file a new AOS the 130 goes to USCIS to be approved and then I believe the 485 is approved by the Judge. Some time through out the lengthy court process both marriages are looked at and both need to be bonafide.

So many likes and blind following to this mess. 

 

You keep telling people they are terminated yet they can work and if the judge “reinstate” it, it doesnt count as a residency “break”. So why use a false and harsh word like terminated when it does nothing like it sounds. 

 

these are all scare tactics. 

 

I know you dont see it but your answers are full of errors and full of judgement a lot of the times. Thats why we need judges to have the final answer on things based on the laws written. I read so many time how you judge “liers” etc. when you give immigration advice youre suppose not judge the story. Just give the immigration advice pertaining to the situation. I saw you deport so many people on this sub and I bet most if not all of them are citizens by now or atleast LRPs

 

 

Again for those afraid and stressed. If you have your PR, dont listen to ANYONE and i mean ANYONE but the judge about your status. 

 

USCIS is an AGENCY. They give the benefit s as a SERVICE to those who are ENTITLED to it by LAW. They also cant take a benefit because thats not a SERVICE. Only a judge can take from citizens in this country whether its your status, money, freedom or even your life. 

 

No ONE else can legally take from you anything without a judge having a final answer. 

 

The DMV doesnt give you a driver license, the state laws do. The DMV is the place where you fill the paperwork so they can see if you qualify under the LAW. 

 

This is why immigration lawyers give all these weird answers. Because lawyers are almost useless when dealing with USCIS because they are just filing paper work and giving them to an agency that collects paper if they are ever needed in court (thats why we have files)

 

lawyers however are your only hope infront of a judge to increase your chance at KEEPING your LRP Because law talk is not the same as street talking.  

[Villanelle 4,121]

20 hours ago, ApplyingforN400 said:

So many likes and blind following to this mess. 

 

You keep telling people they are terminated yet they can work and if the judge “reinstate” it, it doesnt count as a residency “break”. So why use a false and harsh word like terminated when it does nothing like it sounds. 

I do not know why they use the word terminated when it does nothing like it sounds. I agree that yes its harsh.  According to current policy/laws your LPR status is terminated when ROC is denied.I So its not a false word. I explained the current policy of termination and the policies that allow for status and work auth. 

 

 

20 hours ago, ApplyingforN400 said:

these are all scare tactics. 

I do not see it as scare tactics. This is a serious situation. I do acknowledge that I used harsher words in this thread then might have been necessary however I felt the OP was taking a lackadaisical approach to this. I didnt get any sense of urgency to his postings. I read it more like well maybe Ill file this maybe Ill file that. If he takes no action he will end up out of status which is a bad place to be.

 

20 hours ago, ApplyingforN400 said:

I know you dont see it but your answers are full of errors and full of judgement a lot of the times. Thats why we need judges to have the final answer on things based on the laws written. I read so many time how you judge “liers” etc. when you give immigration advice youre suppose not judge the story. Just give the immigration advice pertaining to the situation. I saw you deport so many people on this sub and I bet most if not all of them are citizens by now or atleast LRPs

If you see any errors please correct them.

 

Also the TOS on VJ do not require users to give immigration advice with out judging the story. It doesnt even require you to read the thread or only post correct info. 

 

I dont know what you mean by you saw me 'deport so many people'? But I do not want to import other drama into this thread so please do not explain.You can send me a pm if youd like.

 

20 hours ago, ApplyingforN400 said:

 

 

Again for those afraid and stressed. If you have your PR, dont listen to ANYONE and i mean ANYONE but the judge about your status. 

 

USCIS is an AGENCY. They give the benefit s as a SERVICE to those who are ENTITLED to it by LAW. They also cant take a benefit because thats not a SERVICE. Only a judge can take from citizens in this country whether its your status, money, freedom or even your life. 

 

No ONE else can legally take from you anything without a judge having a final answer. 

 

The DMV doesnt give you a driver license, the state laws do. The DMV is the place where you fill the paperwork so they can see if you qualify under the LAW. 

 

This is why immigration lawyers give all these weird answers. Because lawyers are almost useless when dealing with USCIS because they are just filing paper work and giving them to an agency that collects paper if they are ever needed in court (thats why we have files)

 

lawyers however are your only hope infront of a judge to increase your chance at KEEPING your LRP Because law talk is not the same as street talking.  

Im not sure what the point of the above is. 

 

 

Anyway- Im glad others have posted in this thread.  i know the following was directed to mindthegap but I would like to address it

On 8/15/2018 at 1:27 PM, beso36 said:

Your contribution revealed a lot of my stress. My only question, I remarried, I got an advice from the lawyer about filing new i-130,i-465 with the note that we still need to prove both marriages are bonafide However adding my second marriage to the case would lift less pressure on the whole case, @mindthegap what do you think? 

How exactly does the attny believe it would lift pressure on the case? In one situation you have to prove bonafide for 1st marriage. In the other situation you have to prove bonafide for the 1st and 2nd marriage. One is less then two. So why go the route that you have to prove 2? You also lose the time you have towards naturalization. 

[lucy2017 1]

On 8/14/2018 at 12:23 AM, Villanelle said:

First I want to clarify something I received a PM about.

When I said 'refiling will put you back in auth stay' I wasnt very clear.

When your 751 is denied your status is terminated. They will send you a NTA. But technically you do have a status is just not that of an LPR. Its a temporary status to allow you to stay in the US while you are in court proceedings. Do NOT leave the US. When you are in court like this you can not leave the US - its a 10yr ban. You can also go to infopass and get a 551 stamp.

 

So you are not illegal when the 751 is denied and your status terminated. However you are not a permanent resident either- they terminated it. You can still legally work if you are employed- The time between your status being terminated and your status being reinstated by either the judge ruling in your favor in court or submitting and getting a new 751 approved does not count as out of status. Your clock for natrulization also goes back to when the GC was first issued. If you are not reinstated it is considered out of status time.

 

If you do not fix the denial (judge rules against you) you will be subject to deportation. So you can fight the denial (this involves submitting a new 751 and asking Judge for time for USCIS to review and approve it and/or presenting evidence in court and getting a favorable ruling so the old 751 will go back to USCIS for approval) or you can not fight the denial and ask for your conditional status to be closed so you can apply for AOS through new spouse. (and also to not deport you once they close it)

 

Its important to note that these matters are complex and small details matter. Immigration is governed by laws, policies, memos and court decisions. Also there are various circuit courts in the US. Depends where you live. An attny can review the specifics of your case and advise you of the best path to take. For most people this is refiling because it goes through USCIS again. Your situation may be different. Speak to your current lawyer and then speak to other lawyers and see what they have to say. All I can do is give you general information. I am not well versed on court procedures nor do I know anyone on this forum that is. This is a DIY website geared towards general filing- and your case is not DIY.

 

Anyway you cant just submit the same exact 751 packet again. The denial letter should outline the specific issues they had with you. You need to address the issues. You can use a new waiver category but if you use the same category you need new evidence. If you file a new AOS the 130 goes to USCIS to be approved and then I believe the 485 is approved by the Judge. Some time through out the lengthy court process both marriages are looked at and both need to be bonafide.

Thank you Villanelle for your contribution. My I-751 joint file waiver is pending after givving response to RFE. Can you please shed some light about once the 751 is terminated to final hearing with judge in court if we can continue our studies. I am assuming that after 551 stamp, if a person can work, study should not be an issue. Please let me know if you have any knowledge about this. Thank you.

[lucy2017 1]

On 8/15/2018 at 12:17 PM, mindthegap said:

As one of the few on here who has experienced a denial, and is still going through this hell, despite the OPs aggresiveness and somewhat rude tone, I feel I should contribute.

 

The law does sort of contradict itself in some respects, but between an I-75 denial and a final order of removal, you remain a LPR with the right to work. You are  also entitled to proof of status in the form of a stamp. This is backed up by case law and also clarification by USCIS and the EOIR.

 

However, filing a fresh I-751 is the best way to go, as it not only puts you absolutely in unambiguous territory, with a fresh extension letter issues and no issues travelling,it also must be adjudicated on its merits before any court proceeding can continue or a final order of removal (which terminates your status) can be made.

If you file a new I-751 quickly enough after denial, it may even avoid an NTA in the first place.

 

 

 

 

 

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)."

 

 

""Genco Opinon 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)."

 

 

 

 

Thank you for great insight. Can we refile I- 751 multiple times?

[mindthegap 2,550]

Yes