I751 Denial

[Gems101 0]

Hello all! 
 

Been lurking on this website for a few weeks and just joined. Would appreciate some further clarification…if a persons i751 based on a former marriage (now divorced) is denied and a NTA has been issued, are they able to refile for AOS with their new spouse based on a new marriage? If so, do they start from scratch with a completely new i130 and i485 filing or just a new i485? The person in question is currently awaiting first court date and has a valid i551 stamp. Any help is much appreciated. Thanks in advance! 

[PaulaCJohnny 713]

22 minutes ago, Gems101 said:

Hello all! 
 

Been lurking on this website for a few weeks and just joined. Would appreciate some further clarification…if a persons i751 based on a former marriage (now divorced) is denied and a NTA has been issued, are they able to refile for AOS with their new spouse based on a new marriage? If so, do they start from scratch with a completely new i130 and i485 filing or just a new i485? The person in question is currently awaiting first court date and has a valid i551 stamp. Any help is much appreciated. Thanks in advance! 

You need a good lawyer. This is not a DIY case

what was the reason for the denial?

Edited August 7, 2021 by PaulaCJohnny

[Nat&Amy 623]

5 hours ago, Gems101 said:

I a persons i751 based on a former marriage (now divorced) is denied and a NTA has been issued, are they able to refile for AOS with their new spouse based on a new marriage? 

No. What would they be adjusting from? USCIS has no power to terminate anyone's PR status so for all due purposes the person is still a resident.  What the person needs is to address the issues that led to the ROC denial. Were they unable to show a bonafide relationship or was it something else that can be corrected?  If anything needs to be refiled, it is the i751.

 

 

Edited August 7, 2021 by Nat&Amy

[carmel34 3,638]

7 hours ago, Gems101 said:

currently awaiting first court date

Strongly encourage your friend to NOT miss the court appearance, as required on the NTA.  And get a good US immigration attorney before going to court.  Not showing up for the scheduled court date would make his/her immigration problems even worse (likely deportation order).  Good luck!

[Crazy Cat 41,974]

7 hours ago, Gems101 said:

Hello all! 
 

Been lurking on this website for a few weeks and just joined. Would appreciate some further clarification…if a persons i751 based on a former marriage (now divorced) is denied and a NTA has been issued, are they able to refile for AOS with their new spouse based on a new marriage? If so, do they start from scratch with a completely new i130 and i485 filing or just a new i485? The person in question is currently awaiting first court date and has a valid i551 stamp. Any help is much appreciated. Thanks in advance! 

Since only a very small percentage of I-751s are denied, there are possibly serious issues to address.  I would certainly find a good attorney immediately.

[mindthegap 2,590]

Yes.

A recent clarification by USCIS confirms that someone can do exactly this, and following just the denial without the court hearing and final order of removal. 

 

I’ll dig it out and post again later 

[mindthegap 2,590]

It’s a recent clarification.

One can now file for a new marriage upon receipt of a denial, without having to wait for the NTA, the subsequent hearing and a final order of removal which formally terminates the permanent resident status. 
 

Section G here clarifies it:

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

 

Of course have no doubt they will give extra scrutiny because of the prior history, but it's a big and welcomed change.

 

Also see here:

https://www.uscis.gov/news/alerts/uscis-issues-guidance-on-adjustment-of-status-by-aliens-whose-conditional-permanent-residence-has
 

And Matter of Stockwell, which is what caused this clarification:

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20191121-CPRs-Stockwell.pdf

 

 

 

https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3150.pdf

Edited August 7, 2021 by mindthegap

[Gems101 0]

29 minutes ago, mindthegap said:

It’s a recent clarification.

One can now file for a new marriage upon receipt of a denial, without having to wait for the NTA, the subsequent hearing and a final order of removal which formally terminates the permanent resident status. 
 

Section G here clarifies it:

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

 

Of course have no doubt they will give extra scrutiny because of the prior history, but it's a big and welcomed change.

 

Also see here:

https://www.uscis.gov/news/alerts/uscis-issues-guidance-on-adjustment-of-status-by-aliens-whose-conditional-permanent-residence-has
 

And Matter of Stockwell, which is what caused this clarification:

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20191121-CPRs-Stockwell.pdf

 

 

 

https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3150.pdf

Thank you so much! And would the new filings be sent to and reviewed by USCIS? Or would any of these have to be filed with the immigration court? Still awaiting notification of a court date. 

[mindthegap 2,590]

8 minutes ago, Gems101 said:

Thank you so much! And would the new filings be sent to and reviewed by USCIS? Or would any of these have to be filed with the immigration court? Still awaiting notification of a court date. 

USCIS, and treated as an entirely new and separate application as if the denied one had never happened (the ‘resident from’ date once approved would be from the second adjustment approval date, completely ignoring the old one as if it never happened)

Court would be an entirely separate thing, no need to file anything with them. 
NTAs can take years to appear btw  
 

Edited August 7, 2021 by mindthegap

[Pinkrlion 2,724]

They still need a lawyer to clear the NTA and removal proceeedings even after new GC approved.  

[Gems101 0]

14 minutes ago, mindthegap said:

USCIS, and treated as an entirely new and separate application as if the denied one had never happened (the ‘resident from’ date once approved would be from the second adjustment approval date, completely ignoring the old one as if it never happened)

Court would be an entirely separate thing, no need to file anything with them. 
NTAs can take years to appear btw  
 

Thanks! If the new filing is approved and 10-year green card obtained, what happens to the old denied I751? Does it still proceed through the immigration court system proceedings or does the new green card approval terminate the court proceedings altogether? 
 

3 minutes ago, Pinkrlion said:

They still need a lawyer to clear the NTA and removal proceeedings even after new GC approved.  

You just answered my question. Thank you! 

Edited August 7, 2021 by Gems101

[mindthegap 2,590]

10 minutes ago, Gems101 said:

Thanks! If the new filing is approved and 10-year green card obtained, what happens to the old denied I751? Does it still proceed through the immigration court system proceedings or does the new green card approval terminate the court proceedings altogether? 

It may well proceed in parallel with the new adjustment…but it can’t harm it as it is  entirely separate.
You could well still receive a final order of removal for the old status but the new adjustment is exactly that - new - hence why you receive an entirely different ‘resident from’ date for the new one. 

[Letspaintcookies 2,310]

@mindthegap But the new filing in this case would be an AOS not ROC and depending on the length of the marriage would possibly end with a 2 year card again not the 10 year card right?

[mindthegap 2,590]

14 minutes ago, Letspaintcookies said:

@mindthegap But the new filing in this case would be an AOS not ROC and depending on the length of the marriage would possibly end with a 2 year card again not the 10 year card right?

Correct 😂

If it was a new marriage I’d be inclined to wait as long as possible to file if in order to avoid that… 

Current AOS timescales aren’t exactly quick, I suspect.

 

Waiting isn’t so much of an issue…because as long as there isn’t a final order of removal from a judge, your I-551 stamp is still valid from the denied filing so no issue with travel/work/etc, and you are entitled to have that stamp renewed. 

Edited August 7, 2021 by mindthegap

[African Zealot 1,455]

Although the answer given is correct, it can be misleading. The fact that the new marriage and petition proceeds smoothly doesn’t mean the deficiencies in the previous denied petition is cured. For an i751 the most common reason for a denial and NTA is they believe the marriage is fraudulent.
 

Hence regardless of how the new once proceeds, if you’re not able to overcome the charge of fraud in the prior one, you will still be ordered removed when it concludes in immigration court.

 

Basically you can’t circumvent or game the system with a new petition because hypothetically one could use an unending sequence of petitions to avoid the consequences of a prior fraudulent petition.

 

Get a good immigration attorney. I751’s are typically not trivially denied, nor are people out in proceedings casually.