I-751 Denied. Can we apply for IR-1?

[mindthegap 2,521]

1 hour ago, Dashinka said:

Just curious, would it be possible to get through CBP at a pre-clearance airport such as Abu Dhabi?  I know CBP is after check-in, but it might be possible.

In theory, yes...but if I was in the same situation, I wouldn’t be trying to argue with pre-clearance in a third country, I’d be walking in after landing at Toronto, Montreal or Vancouver, armed with lots of INA pages and legalese printed for quick reference in the impending grilling.
That’s assuming you can even get to pre-clearance as it’s usually after check in & security, which you can’t get past without having appropriate documentation.
You also have to remember as well that the airline gets massive fines for letting anyone board without verifying documentation according to the carrier information guide which is held and referenced on their systems  - something I definitely know as it’s such a mission with my stamps, as they always ask if I have a card (yes, it’s expired), if I have have an extension letter (yes, three, all expired) and then when I explain the stamp is an I-551 and they find it on their system, they have to work out what date to put in for the PR card expiry date (which, for anyone reading, is the stamp expiry date). 
 

Best case it works. Worst case is it doesn’t work, and you get some horrible detention in a third country before removal back to the country you boarded from because they can’t release you because you don’t have an entry visa for that country because you were supposed to be only transiting.

Denying someone with an issue is far easier in a third country at a distance from US soil, than letting them fly to the US and then having to detain them and remove them (regardless of the questionable legalities of that), so pre-clearance wouldn’t be my choice for that reason alone. 
Just another element that further complicates it. 

 

Edited December 15, 2022 by mindthegap

[goobies 79]

19 minutes ago, mindthegap said:

Worst case is it doesn’t work, and you get some horrible detention in a third country before removal back to the country you boarded from because they can’t release you because you don’t have an entry visa for that country because you were supposed to be only transiting.

Denying someone with an issue is far easier in a third country at a distance from US soil, than letting them fly to the US and then having to detain them and remove them (regardless of the questionable legalities of that), so pre-clearance wouldn’t be my choice for that reason alone. 
Just another element that further complicates it. 

 

100% what I'm worried about. 

[Crazy Cat 39,285]

@mindthegap is the expert here for this.

Edited December 15, 2022 by Crazy Cat

[mindthegap 2,521]

2 hours ago, goobies said:

I very much appreciate all of this. His A Number didn't come up on that system check. My plan is to submit the SB1 in hopes of getting the DS117.

That is good. That means he is still - legally - a permanent resident, albeit one with now a presumed abandonment due to the length of time outside of the US. However, this is an accusation, and can be defended in immigration court if neccessry, and as previously posted, a LPR has an absolute right to due process and a hearing with an immigration judge. 

For an SB-1 he will have to prove:

1) He had the status of a lawful permanent resident at the time of departure from the United States (no issues there);

2) He departed from the United States with the intention of returning and have not abandoned this intention (you and your children being there, still maintaining a residence, bank account etc is part of your evidence for this) ; and

3) He is returning to the United States from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond your control and for which you were not responsible (in this case, COVID and covid related issues.....this is absolutely your saving grace here for such an extended absence).

 

 

However, you are also missing one very crucial point. 

If you are are doing any other course of action besides an IR-1 from scratch, you WILL need to file a fresh I-751.

That denied I-751 CANNOT be reopened or appealed, and a fresh one is required. Doesn't matter if it is now, or later at immigration court (because an NTA and hearing will happen eventually) - at some point an I-751 will need to be filed and adjudicated to avoid termination of status at a later date. 

 

 

You should consider filing the new I-751 now. By filing the new I-751 now, you are demonstrating further ties to the US and an intent to resolve your removal of conditions issue and remain as a permanent resident. It also gives you current pseudo-proof of status in the form of the I-751 receipt which may be useful for the SB-1.

Something for you to think about. 

 

 

If he is eligible for entry to Canada (or Mexico if not), I'd be honestly considering trying a flight to there first and then approaching a land border first, as it is quickest method, and the path of least resistance and hassle. This would also be a lot easier having filed a fresh I-751 and having that receipt in hand. 

Then you could go for the SB-1 if that didn't work out....

Edited December 15, 2022 by mindthegap

[Timona 3,943]

1. COVID is an old excuse. It's time to get it dropped. 

2. How is your husband barred from entry at Entebbe Airport? Even if he had expired visas to other countries, he cannot be barred from using an Airport because, say, he has expired visa to US. He could only be barred from flight to US.

3. During height of COVID, people were traveling & for those that needed quarantine, they were going via Mexico just to go get around it. Additionally, GC holders were being allowed in with expired GC. Did you not know this?

4. Your issue is well solvable. You just don't want to listen and want to take the high road. 

5. Last week, there was a VJ poster here who got back into the country. Same situation as your husband. That poster followed advise from here, same advise you're being given. 

6. As others have said, have him fly to Canada or Mexico and get in via land. His legal status in US has no baring to Mexico nor Canada. It would have been, for Canada, if he had criminal  history, which isn't the case. If he requires a visa to Mexico or Canada, let him apply and get one ASAP as it's the quickest way back to US. 

 

Once in US, he can just reapply for his I-751 and just give a small sob letter. USCIS is a little lenient right now @goobies

 

That being said, I'm Mike-E-ing. 

[iwannaplay54 985]

9 hours ago, goobies said:

Do you mean even if his green card or status is revoked that we can not start the entire process again? From petition?

Thank you for the clarification.

You can file a new petition.  Best if he surrenders his green card at the embassy to clear the old A-number out of the system.  We did it that way awhile back, didnt hurt us.

Edited December 16, 2022 by iwannaplay54

[goobies 79]

3 hours ago, Timona said:

1. COVID is an old excuse. It's time to get it dropped. 

2. How is your husband barred from entry at Entebbe Airport? Even if he had expired visas to other countries, he cannot be barred from using an Airport because, say, he has expired visa to US. He could only be barred from flight to US.

3. During height of COVID, people were traveling & for those that needed quarantine, they were going via Mexico just to go get around it. Additionally, GC holders were being allowed in with expired GC. Did you not know this?

4. Your issue is well solvable. You just don't want to listen and want to take the high road. 

5. Last week, there was a VJ poster here who got back into the country. Same situation as your husband. That poster followed advise from here, same advise you're being given. 

6. As others have said, have him fly to Canada or Mexico and get in via land. His legal status in US has no baring to Mexico nor Canada. It would have been, for Canada, if he had criminal  history, which isn't the case. If he requires a visa to Mexico or Canada, let him apply and get one ASAP as it's the quickest way back to US. 

 

Once in US, he can just reapply for his I-751 and just give a small sob letter. USCIS is a little lenient right now @goobies

 

That being said, I'm Mike-E-ing. 

Lol, if you know anything about Kenya, then you know something about Uganda, and that means you should understand how the agents at the door won't allow you to even enter the airport if you don't have the documents they "think" you should have. So that's how he was barred entry from Entebbe. He presented a ticket to the US. They asked to see his documents. When they saw the expired GC, they didn't even allow him to show his extension letter. My husband attempted a 2nd time. That time, the doorman allowed him in, but the extension letter had expired, so at the check in counter they told him he couldn't board. Being that this was an actual airline agent, we took that to be official word. I had literally just birthed our 2nd child and was in no position to be researching things. So that's how that went down.

 

During the height of COVID, Uganda was in the middle of the world's longest lockdown, and I can assure you, unless you were a diplomat, you weren't getting a flight out of Uganda.

 

I haven't seen this other poster. Do you know their user name or post title? I'd very much like to read it.

 

So are you saying that if we get him to Canada, he can definitely enter and not be detained on the spot? We are doing all we can to avoid any detainment.

 

 

[Timona 3,943]

1. Nobody is going to detain him. @mindthegap has provided you with valuable information. Why not follow it? 

2. Just make sure that he shouldn't sign any paperwork to relinquish GC at the border. 

3. I know Kenya. $$ talks. He could have just parted ways with $2 and that doorman would have let him in, though I doubt if he was actually barred at the airport gate. What does and airport doorman know about GC and flights?

4. Well, now, he just does as is advised. There are multiple ways to kill a rat and you've been given those ways. 

Edited December 16, 2022 by Timona

[Rocio0010 5,565]

9 hours ago, goobies said:

even enter the airport if you don't have the documents they "think" you should have. So that's how he was barred entry from Entebbe. He presented a ticket to the US. They asked to see his documents. When they saw the expired GC, they didn't even allow him to show his extension letter. My husband attempted a 2nd time. That time, the doorman allowed him in, but the extension letter had expired, so at the check in counter they told him he couldn't board. Being that this was an actual airline agent, we took that to be official word.

This is exactly why I strongly advocate people with an extension letter to always have the Carrier information guide and point the officers to page 10. Second bullet point. Let this be a learning opportunity for others.

I have seen people return to the US after 9 years of being outside successfully (but without a denial). Chances are he will be let in. Trust @mindthegap

[iwannaplay54 985]

21 hours ago, goobies said:

Hello everyone. 1st off, I'm very grateful for the support and sharing of knowledge in this community.

 

I won't get into details, but if you want them, you can look through my old posts.

 

My husband applied for AOS in 2019, and we took a trip back to his country to spend Xmass with his family. COVID broke out, blah blah blah, he ended up staying out for too long. We were going to apply for the DS117 visa, but before I got to it, I got an AOS Denial letter.

 

All that being said, can we apply for IR-1 Visa now? Are there any extra steps we need to take, like him turning in his expired GC? 

 

What do the chances of an approval for an IR1 after AOS denial look like?

 

Thanks in advance.

Goobies:

 

We played this game for years.  We did what you did during lifting conditions - couldnt make the second biometrics (fingerprints failed first time) and just turned in the (then expired) green card and re-filed a new I130.  No consequences.  We doubled down with a 4-year absence on the ten-year card and managed an SB1, one of the few here who pulled one off.  It’s two interviews.   I, and she, got grilled at the interview counter at the “qualification” step before she could apply for the actual visa.

Im looking at your story here and on a denied I751 + extended absence that is due to marginal at best circumstances outside of his control my call is:  you need to prepare a new I130 petition and plan to file immediately after they deny the DS-117 at the first interview.  It’s brutal with a card that still has 5 years of validity.  The State Department cannot however over-rule a denied I751.  It is outside their power to do so.

 

That denied I751 is appealable when denied but it was never appealed.  Right now your husband has no status, and a consular officer is not empowered to give it to him unless it is processed under a special circumstance DCF which still requires a new petition.

When you submit the DS-117 application you submit the green card with it.  If denied I do not believe they return it. Advice is put together a Plan B.  I had a petition ready if we needed one.

[mindthegap 2,521]

2 hours ago, Rocio0010 said:

Trust @mindthegap

I don't trust me. Not sure why anyone else would

[mindthegap 2,521]

2 hours ago, iwannaplay54 said:

 

 

That denied I751 is appealable when denied but it was never appealed.  Right now your husband has no status, and a consular officer is not empowered to give it to him unless it is processed under a special circumstance DCF which still requires a new petition.
 

The rest of your post is good, but this part isn't. A denied I-751 is not appealable.

You can file an I-290B motion to reopen (based on incorrect application of the law) or motion to reconsider (based on evidence not taken into consideration), but they have an extremely narrow scope of applicability, which would never include a missed (mandatory) biometrics appointment let alone six of them - and it's not an appeal.

 

Her husband does still have status.

Despite the denial letter, he still remains a LPR - albeit with presumed abandonment - and is entitled to due process, a hearing with an immigration judge, and a i-551 stamp while any proceedings are underway, up until the point of an order of final removal by an immigration judge, which is the point that he is no longer a permanent resident. Until that is made, either in person or in abstentia, then he is a permanent resident. As further evidence of this, the court case checker I posted previously came back ok for them. He can file a new I-751, which he couldn't do if he was no longer a permanent resident.

 

The problem is, he is outside the US, with no way of obtaining an I-551 stamp outside of the country,  not technically eligible for an I-131A, and a headache of applying for an SB-1, which is why my advice, and others advice, is to get on a plane to Canada or Mexico, and walk up to a land border (NOT a pre-clearance in an airport) with a large grilling headed their way and once in the country, either file a new I-751, or a new I-130 and I-485 for IR-1 from within the US on the basis of the prior denial. 

If that doesn't work - and it really should - then there are other options available to them to explore...but the path of least resistance should be attempted first, which is a land border. 

Edited December 16, 2022 by mindthegap

[iwannaplay54 985]

 

3 hours ago, mindthegap said:

The rest of your post is good, but this part isn't. A denied I-751 is not appealable.

You can file an I-290B motion to reopen (based on incorrect application of the law) or motion to reconsider (based on evidence not taken into consideration), but they have an extremely narrow scope of applicability, which would never include a missed (mandatory) biometrics appointment let alone six of them - and it's not an appeal.

 

Her husband does still have status.

Despite the denial letter, he still remains a LPR - albeit with presumed abandonment - and is entitled to due process, a hearing with an immigration judge, and a i-551 stamp while any proceedings are underway, up until the point of an order of final removal by an immigration judge, which is the point that he is no longer a permanent resident. Until that is made, either in person or in abstentia, then he is a permanent resident. As further evidence of this, the court case checker I posted previously came back ok for them. He can file a new I-751, which he couldn't do if he was no longer a permanent resident.

 

The problem is, he is outside the US, with no way of obtaining an I-551 stamp outside of the country,  not technically eligible for an I-131A, and a headache of applying for an SB-1, which is why my advice, and others advice, is to get on a plane to Canada or Mexico, and walk up to a land border (NOT a pre-clearance in an airport) with a large grilling headed their way and once in the country, either file a new I-751, or a new I-130 and I-485 for IR-1 from within the US on the basis of the prior denial. 

If that doesn't work - and it really should - then there are other options available to them to explore...but the path of least resistance should be attempted first, which is a land border. 

I’ll take it.  
 

We didnt even try to fool with finalizing the I-751.  It was less trouble just to file a new petition.  I know there are some options after denial IF you’re in the US but from

overseas?  We saw no path in after a skipped biometrics re-do.

We’re really good at navigating the USCIS / visa rapids, but OP’s case is rough.  Im sticking with the advice for “Plan B”, thanks for the clarifications above.

 

Edited December 16, 2022 by iwannaplay54

[iwannaplay54 985]

4 hours ago, mindthegap said:

I don't trust me. Not sure why anyone else would

Your advice is solid.  We’re a lot more conservative because we were not in her home country and not in a place she could stay if she was turned back so we never ever left for the US with anything except for the correct documentation.

Edited December 16, 2022 by iwannaplay54

[mindthegap 2,521]

19 minutes ago, iwannaplay54 said:

 

I’ll take it.  
 

We didnt even try to fool with finalizing the I-751.  It was less trouble just to file a new petition.  I know there are some options after denial IF you’re in the US but from

overseas?  We saw no path in after a skipped biometrics re-do.

We’re really good at navigating the USCIS / visa rapids, but OP’s case is rough.  Im sticking with the advice for “Plan B”, thanks for the clarifications above.

 

I hear you and you are right, as that was obviously the right think for you to do with your circumstances at the time.
I mean, either way the OP is in for some expensive paperwork and lengthy wait…. I and others are just presenting the possible options for them to resolve their mess, some of which are messier than others.

If they want to be together, in the US, while it’s being sorted (which may take years) , then land border entry is the way to go and deal with the complications and paperwork once in. 
If they are happy to be separated, or both remain overseas, or perhaps have very frequent trips, then a fresh IR-1 would be the way to go, which may take years.
No one but the OP and her husband know which is more appropriate for them and their family.