Possible next steps if I-751 was denied

[Leo&Muffin 4]

Hello,

 

My wife (the petitioner) and I have been married for 5 years and we submitted her I-751 application back in 2018, we also applied for her N-400 in 2020. We’re scheduled for our third I-751 interview in the next couple weeks so would like to get some insights and what options we will have if the result turned out to be negative (if USCIS denies my wife’s I-751). We’ve had an attorney with us during the first two interviews (1st one was same room, 2nd one was stoke), and he’ll attend this third interview with us. 

 

1- Is it common to be asked for multiple I-751 interviews? Most I see is two times. 

2- What would be the best options for my wife to lawfully remain in the US if USCIS decided to terminate her residency? Refile I-751? Can we still refile if NTA was sent together with the termination letter?
3- I also read residency status remains until the final decison made by the IJ, is this correct? So let’s say even if USCIS sent out termination letter, one can still legally stay in the US until the offical removal decisions made by the court? 

 

Some facts about our relationship/marriage: we’ve been together for 7 years (dating 2, married 5), and just like any couples, we’ve had our ups & downs but still love each other and want to build a future together. We have a child together and even though he’s not biologically mine, I still look at him as my real son. I mention this because I feel like my wife’s pregnancy and how the 2nd stoke interview went might trigger this 3rd interview. Due to the pandemic & high risk pregnancy, my wife unfortunately was stuck in another state during her pregnancy for about 6m (which we told the truth and disclosed to the officer at the 2nd interview - she was 32wks pregnant at this interview). There were some mismatches in our answers about our stay apart, the pregnancy,…due to both of us being nervous and not sure how the officer would interpret our situation. I myself did not find out about my son until recently when my wife and I sat down to talk about everything that went thru with our relationship. Anyhow, we resolved our conflicts and forgave each other’s mistakes…

 

My quesion is if USCIS requested for DNA test, what would be the best way to handle this? Should we just straght off tell them the whole story and the one-time mistake that my wife made right when they request it? Or still take the test even though we already know the result and then explain the story later? We did disclose this to our attorney too when I found out since we want him to know the whole story and he said he needs some time to think about it. Regardless, I’m not sure how they will interpret our marriage and I dont want this to negatively impact my wife’s residency status in the US. 

 

Thank you for reading my long post…

[portorusa 431]

Who is the U.S.citizen, you? Your wife is the beneficiary? Is she carrying the baby from another man? And the baby was conceived when you two lived separately, correct?

And what about the bio father, is he even in the picture?

The story is unusual, to say the least. No wonder there are several interviews...

[debbiedoo 2,339]

i dont understand why she would have been stuck in another state for 6 months. state to state travel was never prohibited.

 

whatever.

 

theres a lot going on and i dont blame them for multiple interviews, especially if your answers are not matching up. the questions the other poster asked are good ones, as well.

 

who is listed on the babys birth certificate?

 

did bio dad sign over all parental rights?

 

what other evidence do you have of a legitimate marriage (bank accounts, taxes, loans, insurances, the things you file with the initial ROC application, etc) do you have things ongoing from that time to present? from date of marriage to present?

[mindthegap 2,521]

7 hours ago, Leo&Muffin said:

 

1- Is it common to be asked for multiple I-751 interviews? Most I see is two times. 

…

nope.

Two is highly unusual.... three is bizarre. But hey, it hasn't been denied yet. Are you sure this new interview isn't an n-400 interview, since you say you filed that?

 

 

7 hours ago, Leo&Muffin said:

2- What would be the best options for my wife to lawfully remain in the US if USCIS decided to terminate her residency? Refile I-751?

Yes.

However, if it is the same information as submitted in the denied one, it will (eventually) be denied. This is policy. 

There is no appeal of a denial decision. You can however, file an i-290B to reopen/resconsider, which lets you appeal to reopen the case based on incorrect application of policy or law (which you must prove), or re-open based on new evidence not previously submitted. 

 

The alternative would be to file a new I-130 as soon as a denial received and go through the whole process again. This was recently clarified to show that someone can file a new i-130 after receiving a denial letter, without having to have had the NTA and order of removal/termination by a judge.

However, this is intended to be for different marriages to the one that status was terminated for...so I have no idea what sort of fun you would have trying to do it with the same marriage!

 

7 hours ago, Leo&Muffin said:

Can we still refile if NTA was sent together with the termination letter?

It won't be. NTAs can take years.

 

7 hours ago, Leo&Muffin said:

3- I also read residency status remains until the final decison made by the IJ, is this correct? So let’s say even if USCIS sent out termination letter, one can still legally stay in the US until the offical removal decisions made by the court? 

 

Yes. Until a final order of removal by an immigration judge, you remain a LPR, are entitled to a stamp as proof of status and for work and travel purposes. You can also file a new (or multiple) i-751s at any time until a final order of removal).

After a final order of removal, you are no longer a LPR, and you cannot file a new i-751

 

 

Infidelity is not a reason for denial, and USCIS won't require a DNA test.

A child merely shows that your reproductive systems work and that you had sex. It does not demonstrate the aliens intent at the time of marriage to build a genuine bonafide life with someone, and that the marriage was not entered into for the purpose of evading or circumventing immigration laws.

However, giving conflicting answers looks shady as hell and could lead to a denial 

 

 

 

 

Edited July 22, 2021 by mindthegap

[psgma 94]

That’s a tough one. 
You mentioned that  you “didn’t find about your son until recently”, how long were you guys separated? Clearly it was more than 6 mo. Or are you referring to you having another son with a different woman? 
Sounds like you two have never lived together. 
your best chance is to tell the whole truth to the officer and hoping for the best. You and your attorney need to come up with a game plan for the worst case scenario : like starting from scratch. 

[Leo&Muffin 4]

I’m new to the platform so not sure how to respond to individual posts. I am the US citizen and sponsored my wife through our marriage. Just to be clear from my original post, we were never separated or lived in different locations since we got married, even when he had issues. The only reason my wife flew to another state in the first place was to visit her younger brother and the plan was only be there for 2-3 weeks, this was before we found out she was pregnant. We found out my wife was pregnant when she was in that state (about 2 weeks later, she did not conceived in that state), she went to an OBGYN and she had a high-risk pregnancy and the doctor strongly adviced against travels due to that risk and COVID - that’s the whole reason we decide it was best for her to stay with the relative until things got better. We told the whole truth to the officer at the 2nd interview, we just did not disclose the time we had issues because we did not feel a need to at that point. And I do understand giving mismatches answers has lead us to this stage, our concern is how to best explain this at the upcoming interview without further damaging our chance and best options to go if worst case scenario happens. 
 

Regarding our marriage issues, we all made mistakes, I did something first which lead to my wife being upset and had a one-time thing with an acquaintance of her (what a chance). Anyways, I am the father on the birth certificate and be there for her during the entire pregnancy + birth. The bio-father is not in this picture. We were so sure baby is mine even at the 2nd interview and after he was born but appearance wise, we could tell as he gots a little older. Proofs wise, we have pretty much eveyrything together, tax, joint bank accounts, utility bills, health + auto insurances, affidavits, tons of pictures….

 

@mindthegap we still want to be married to each other so I don’t think the option of her getting a new marriage would work in our case. Just a side question, she intends to go back to grad school, will she be legally apply for and remain to stay in the US on an F1 international student visa then if the LPR status terminated? 
 

 

[mindthegap 2,521]

1 hour ago, Leo&Muffin said:

 

@mindthegap we still want to be married to each other so I don’t think the option of her getting a new marriage would work in our case. 

I never suggested such a thing. Please read what I wrote again.

 

I was saying that IF it was terminated, you could, technically, file a new I-130 and start the entire spousal process all over again, from scratch, as the spouse of a US citizen.

It used to be the case that one had to wait until an order of removal was made following a denial before a new i-130 could be filed, but that has changed and been clarified recently. It can now be done when a simple notice of denial has been received without the necessity of going to court

However, that new guidance is primarily designed for former spouses of US citizens who have RE-married and are having the spousal process via an i-130 filed with a NEW marriage. I have no idea how much hassle you would have to go through doing the whole process over again with the same marriage, with a prior denial of removal of conditions. I am sure it is possible, just with hassles, as obviously they are going to give extra scrutiny. 

 

Nowhere did I ever suggest a divorce, or new marriage, or that she needs to re-marry to someone else, and I never would suggest such a thing. 

 

1 hour ago, Leo&Muffin said:

Just a side question, she intends to go back to grad school, will she be legally apply for and remain to stay in the US on an F1 international student visa then if the LPR status terminated? 

 

You cannot (usually) apply for an F1 within the US. There is the potential to change from something like a B2, but she isn't on a B2, she is a lawful permanent resident, and will remain so - with all the rights and responsibilities that come with that - until a final order of removal by an immigration judge, should that come.

If it does, that will be YEARS away and there are many steps in between now and then. This is not a quick process.

Concentrate on the third interview and getting that one right and deal with problems IF and when they occur.

[Leo&Muffin 4]

1 hour ago, mindthegap said:

Nowhere did I ever suggest a divorce, or new marriage, or that she needs to re-marry to someone else, and I never would suggest such a thing. 

Yes, I understand, really appreciate your help & advices. Hopefully our third interview will go well. 

[Ontarkie 13,915]

So you never did a DNA test to see if you are the father or not? You cannot go by the looks of a child as they grow up too many variables. Heck I have 6 kids and not a single one of them looks like me. I know there mine I gave birth to them  but they sure as heck do not look like me, three of them are even blonde. 

 

Answer the questions asked. Your wife went to see her brother, found out she was pregnant doctor advised her she was high risk and told her to stay put. 

 

Did you have any hiccups in your marriage yes you both screwed up but you made it past it and now are happy you did. 

 

If asked about the screw ups you elaborate, if asked about the child do to the screw up you answer honestly. 

 

My personal opinion stop doubting the child is yours or get the darn test done. It's not fair to the child if you are going to spend their whole life second guessing.

 

Good luck 

[Leo&Muffin 4]

Hello folks, thank you for all the sound advices. Clearly, I did not make this post to get opinions regarding marriage/family matters…it’s a background story for my wife’s outstanding immigration application. 
 

One of the questions asked in the OP was should we explain everything to the officer right at the interview when the DNA test is requested or should we still take the test and then explain later. I understand it might doesnt make any difference in the outcome but would like to see which route would be best to navigate around this situation. 

[debbiedoo 2,339]

I just keep tumbling this around in my head. it seems weird to me that she would rush to an obgyn after finding out she was pregnant so soon. especially since it was a 'quick trip' to see her brother. why wouldnt she have waited to go see her OWN doctor (or at least one that would be where she would have the baby) a couple of weeks after taking (presumably) a home pregnancy test. I had 2 kids (ages ago) and didnt go to an OB for quite some time (probably a month?) after i took the home test. 

 

AND the two of you couldnt answer questions the same?

 

people cheat on people all the time and USCIS truly doesnt care. Same for an illegitimate baby (and really, if your name was on birth certificate, there was no need to reveal that). They think theres something else really odd going on.  I, too, think theres a lot more going on than we know and i think USCIS is right in their multiple interviews. its not jiving with them, either.

 

 

[mindthegap 2,521]

10 minutes ago, Leo&Muffin said:

 

One of the questions asked in the OP was should we explain everything to the officer right at the interview when the DNA test is requested or should we still take the test and then explain later. I understand it might doesnt make any difference in the outcome but would like to see which route would be best to navigate around this situation. 

 

Why do think USCIS will give a DNA test?

They won’t. 
 

I concur with the above if you are explaining your life to USCIS as oddly and badly as you are here, I’m not surprised they are suspect.

USCIS does not care if your wife was impregnated by the milkman at her brothers house, while being filmed by pornhub. It isn’t a factor in this.

 

Just tell the damn truth - it’s that simple.

[Mike E 11,723]

15 hours ago, Leo&Muffin said:

 

 

1- Is it common to be asked for multiple I-751 interviews? Most I see is two times. 

No. But then again it is more common that the joint I-751 petitioners live together.

 

Quote

2- What would be the best options for my wife to lawfully remain in the US if USCIS decided to terminate her residency? Refile I-751? Can we still refile if NTA was sent together with the termination letter?

 

You have a lawyer and that lawyer can tell you better than most of us, or at least me.

 

My guess is you would file an I-485 package before her 33 days left to leave the USA were up. The advantage of this is that once approved, because you've been married more than two years, she does not have to file I-751. The disadvantage is that the N-400 application is null and void, and the 3 year clock starts when the I-485 is filed.

 

 

Quote

3- I also read residency status remains until the final decison made by the IJ, is this correct? So let’s say even if USCIS sent out termination letter, one can still legally stay in the US until the offical removal decisions made by the court? 

Yes, if she appeals the decision, she is an LPR until the court revokes her status.

 

Quote

 

Some facts about our relationship/marriage: we’ve been together for 7 years (dating 2, married 5), and just like any couples, we’ve had our ups & downs but still love each other and want to build a future together. We have a child together and even though he’s not biologically mine, I still look at him as my real son. I mention this because I feel like my wife’s pregnancy and how the 2nd stoke interview went might trigger this 3rd interview. Due to the pandemic & high risk pregnancy, my wife unfortunately was stuck in another state during her pregnancy for about 6m (which we told the truth and disclosed to the officer at the 2nd interview - she was 32wks pregnant at this interview). There were some mismatches in our answers about our stay apart, the pregnancy,…due to both of us being nervous and not sure how the officer would interpret our situation. I myself did not find out about my son until recently when my wife and I sat down to talk about everything that went thru with our relationship. Anyhow, we resolved our conflicts and forgave each other’s mistakes…

Legally your son is yours.

Quote

My quesion is if USCIS requested for DNA test, what would be the best way to handle this?

Why would USCIS do that? Only if you or your wife told USCIS hat your son is possibly not your biological father. And even then, I don't know why USCIS would do that. The salient facts are:

 

1. You two have a son together. This generally counts for a lot in an I-751 cases, in a positive way.

 

2. At least one spouse was unfaithful. The counts against your case: generally bonafide marriages do not have unfaithful spouses.

 

Unless directly asked about (2), I don't see any value in bringing it up.

 

Again, legally your son is yours. At the third interview bring your son's birth certificate and a photo copy. Bring photos of the three of you together.

 

 

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Should we just straght off tell them the whole story and the one-time mistake that my wife made right when they request it?

No.

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Or still take the test even though we already know the result and then explain the story later?

Taking the test is not relevant to the I-751 case.

 

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Thank you for reading my long post…

No worries.

 

I think you two should:

 

* start living together

 

* get on the same page with respect to your answers

 

6 hours ago, Leo&Muffin said:

Just a side question, she intends to go back to grad school, will she be legally apply for and remain to stay in the US on an F1 international student visa then if the LPR status terminated? 

No, she would have to leave. The better alternative would be to file a new I-485. Most schools will let her attend on the basis of her I-485 receipt.

[Rocio0010 5,562]

26 minutes ago, Leo&Muffin said:

I did not make this post to get opinions regarding marriage/family matters…it’s a background story for my wife’s outstanding immigration application. 

This is borderline telling us not to comment on your personal life, and I just wanted to tell you to be careful doing that because it’s against VJ’s TOS. And most people here are trying to understand the story better to be able to give you more accurate advice. 
The bottom line of everything is that couples cheat all the time, and USCIS knows about this. They also know that a child in a couple means that the members of the couple (or at least one of them!) is fertile, nothing more. 

USCIS is concerned about the bona fide of your marriage, especially after the second stokes interview and your inability to have same or at least similar answers. 

Also, we need a full account of your story to help you better. Can you answer the following questions?

Where is your spouse from? Country of origin is very important here.

Any significant age difference?

What evidence did you submit with your I-751? Did you bring more evidence to any of the interviews?

What were the questions that did not match during the interview?

[Boiler 43,432]

The key comment is the need for the Lawyer to think about it.

 

A lot depends on what was disclosed or not in the interviews, I assume quite a bit taking into account where we are.