I751 denied

[Koke Sisman 1]

How long does it usually take to get the NTA after denial? Just asking because I need to get all my documentation together to refile.

[jp1000 23]

4 hours ago, mindthegap said:

see my extensive signature as proof

 

**** man your situation sounds like it must have been really stressful!

Edited February 19 by Crazy Cat

[Rocio0010 5,573]

15 hours ago, Koke Sisman said:

Hi,

 

Last Friday I received a denial letter from the USCIS on my I751 application. Notice to appear not arrived but in the letter says that I can defend my self in removal proceedings.

 

If I would refile before I got a notice to appear, how soon will I be able to travel outside of the US and what would I need for it? Advance Parole or Stamp? I still have the a travel stamp valid till Jan 2025 from the denied case. Will the refiled I751 attached to the previous one so my stamp is valid? Or do I have to get another stamp and how long does that usually take?

 

Also can I apply for a E1/E2 or B1/B2 visa if my refile got denied as well?

 

Thanks!!

 

I'm so sorry you're in this situation, and I wish you all the best with your health issues.

As others have suggested, you're not getting a B1/B2. Your only chance is to fight this denial, which I know you will. 

I also see that you're worried about an NTA and I wanted to say, just do the next right thing. And the next right thing is to either file by yourself (but you said you don't have any more evidence), or hire an attorney ASAP that will file for you. I know Hacking will. He has a YouTube show where you can ask questions for free. Just  Google YouTube Hacking Immigration Law and it will show up. Next show is today.

[Sweetdreaming 384]

Did they give any indication why your 751 failed? Not enough bona fide evidence maybe, what did you provide to show legit marriage?

[TeddyFazBear 67]

17 hours ago, mindthegap said:

In immigration court the burden of proof switches.

Currently you are in the I-751 process where you have to prove your marriage was legit, but in court it switches to USCIS to prove - 'by clear and convincing evidence' - that your marriage was entered into for the purposes of evading immigration law. That is quite a bar for them to clear. 

That is a LONG way away, if ever. Just concentrate on now. 

 

Yep this is it. Unless they have some absolutely damning evidence proving without a doubt you attempted to defraud the system, they can’t remove you. Do you suspect your ex may have said something to USCIS or sent them some documents that make things look like there was fraud? Certainly odd you had, by your account, a very good interview then got a denial. 

don’t give up!

[Koke Sisman 1]

I went to my actually attorney today and he didn’t even knew that refiling is an option then he said I can still file even a notice to appear would be sent which is not true based on my research.

 

He also said that if I would refile, I will get a receipt within a short time which will also allow me to travel for 48 months. Is that right information?

 

Can I quickly refile the I751 and add more evidence to the file afterwards like in a week or so?

 

Either way I’m gonna move forward with another attorney.

[OldUser 5,090]

5 minutes ago, Koke Sisman said:

Either way I’m gonna move forward with another attorney.

Smart choice. Speak to somebody else.

Your existing card will be extended by 48 months from the expiration date.

E.g. if it expires on 01/01/2022, it will be extended to 01/01/2026.

 

Was this attorney member of AILA? I doubt it.

You can search credible lawyers here:

 

https://www.ailalawyer.com/

Edited February 20 by OldUser

[mindthegap 2,543]

16 minutes ago, Koke Sisman said:

I went to my actually attorney today and he didn’t even knew that refiling is an option

 

Find a new attorney that didn't get their law degree inside a box of cornflakes. 

Thats i-751 101 stuff. 

 

16 minutes ago, Koke Sisman said:

then he said I can still file even a notice to appear would be sent which is not true based on my research.

 

You can file a new i-751 at any time, including when in immigration court and removal proceedings.  The point at which you cannot, is once a final order of removal has been made by an immigration judge, at which time you are no longer a permanent resident.

 

16 minutes ago, Koke Sisman said:

He also said that if I would refile, I will get a receipt within a short time which will also allow me to travel for 48 months. Is that right information?

 

Did you even read anything I posted previously? Thats exactly what I said...with the caveat that the 48month receipt is ONLY valid from the expiry date of the card, so in all probability you would probably need a stamp.

 

16 minutes ago, Koke Sisman said:

Can I quickly refile the I751 and add more evidence to the file afterwards like in a week or so?

 

 

Yes.

Brief cover letter ('please find enclosed my i-751 form, being filed as a divorce waiver), a G-1145 (for email /SMS notification), G-1450 or a cheque (for payment), the form itself, a copy of your final divorce decree, and an any evidence you choose to include, or not.

Send that in, and it will be accepted.

You can send further evidence at a later date. 

 

16 minutes ago, Koke Sisman said:

Either way I’m gonna move forward with another attorney.

 

phew.

[Koke Sisman 1]

@mindthegap

yeah sure I did I have missed that part.  Thank you for the infos. In that case I will need a stamp as you said because the 4 years are over. Hopefully I got the receipt within a few weeks and make sure I can travel.

 

So far as I understand the refiling I751 is kind of a loophole which allows you to delay the final court date further, makes it possible to travel sooner and gives you the opportunity to fight your case before the court. Doing that has only benefits and no disadvantages.

That’s great news Even if the NTA is issued I can still apply and USCIS has to accept it. Hacking immigration video said I can only refile if there is no NTA yet

 

@TeddyFazBear I don’t think so she wouldn’t do that. 

 

[Koke Sisman 1]

@mindthegap

 

I just spoke to one of the hacking immigration attorney. They have reviewed my denial letter in detail. They said that my permanent residence status has been terminated in this letter meaning I would have no underlying basis (like the first 2 years green card) to got permission to travel even if I would refile I-751. If I would file and receive the I-797 notice permitting me travel for 48 months it says this "This extension and authorization for employment and and travel does not apply to you if your conditional residence status has been terminated"

 

"And in my denial letter it says this: In accordance with the provisions of INA section 216c2A, the permanent, residence status previously accorded you is nearby terminated as of August 16, 2019. All rights and privileges which you derived from that status, including the right to reside and work in the United States, are terminated concurrently"

 

So they won't help me out. I am very confused now because as far as I know on all denials they terminate the conditional residence status right?

 

 

Edited February 20 by Koke Sisman

[OldUser 5,090]

5 minutes ago, Koke Sisman said:

@mindthegap

 

I just spoke to one of the hacking immigration attorney. They have reviewed my denial letter in detail. They said that my permanent residence status has been terminated in this letter meaning I would have no underlying basis (like the first 2 years green card) to got permission to travel even if I would refile I-751. If I would file and receive the I-797 notice permitting me travel for 48 months it says this "This extension and authorization for employment and and travel does not apply to you if your conditional residence status has been terminated"

 

"And in my denial letter it says this: In accordance with the provisions of INA section 216c2A, the permanent, residence status previously accorded you is nearby terminated as of August 16, 2019. All rights and privileges which you derived from that status, including the right to reside and work in the United States, are terminated concurrently"

 

So they won't help me out. I am very confused now because as far as I know on all denials they terminate the conditional residence status right?

 

 

Get on a YouTube show instead and speak to Jim. Sounds like somebody doesn't understand it well and gives incorrect advice. 

[GeneO 10]

7 hours ago, Koke Sisman said:

I went to my actually attorney today and he didn’t even knew that refiling is an option then he said I can still file even a notice to appear would be sent which is not true based on my research.

 

He also said that if I would refile, I will get a receipt within a short time which will also allow me to travel for 48 months. Is that right information?

 

Can I quickly refile the I751 and add more evidence to the file afterwards like in a week or so?

 

Either way I’m gonna move forward with another attorney.

 

Sounds like a new attorney is a good plan. Just one quick question, do you suspect your former spouse could have sent something to USCIS that makes it appear your marriage was fraudulent? A nasty letter doesn't usually get a lot of attention but if they had some documents that make it appear there as fraud involved it could possibly explain why you got such a sudden and unexpected result. 

Not saying this is what happened, but if you think its possible might be worth doing a FOIA request on your case. 

[mindthegap 2,543]

49 minutes ago, Koke Sisman said:

@mindthegap

 

I just spoke to one of the hacking immigration attorney. They have reviewed my denial letter in detail. They said that my permanent residence status has been terminated in this letter meaning I would have no underlying basis (like the first 2 years green card) to got permission to travel even if I would refile I-751.

 

Utter rubbish.

Hope they didn't charge you for that.

 

49 minutes ago, Koke Sisman said:

If I would file and receive the I-797 notice permitting me travel for 48 months it says this "This extension and authorization for employment and and travel does not apply to you if your conditional residence status has been terminated"

 

"And in my denial letter it says this: In accordance with the provisions of INA section 216c2A, the permanent, residence status previously accorded you is nearby terminated as of August 16, 2019. All rights and privileges which you derived from that status, including the right to reside and work in the United States, are terminated concurrently"

 

 

USCIS would LOVE for that to be the case, and their scary strongly worded denial letters appears that way, but it isn't legally accurate. You are a permanent  resident, and you can live, work, and travel, and remain a permanent resident until a final order of removal, at which point you are no longer a permanent resident. 

 

No ifs, no buts, that is the law. Unfortunately, as is common with the law as it has evolved, naturally it does contradict itself in places, since the whole I-751 requirement was added in the mid 80s on top of existing laws, but it has been clarified in multiple places, including EOIR appeals decisions.

It is firmly established as precedent in case law. Genco Opinion 96-12 sums it up best, and I quote (my bolding):

 

"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."

 

 

There is plenty more legalese and other links and chunks of text I could paste, but I can't be bothered right now.

As my circumstances have unfortunately dictated, I have a very intricate knowledge of the I-751 process, denial process, and what happens during and after, and my knowledge is increasing every day even now. 

 

To put it bluntly, there is ZERO chance I would have travelled out of the US if my residency or ability to re-enter the US was in jeopardy after travelling post denial (all of them) if I was remotely unsure of the law here in these exact circumstances I have found myself in - identical to yours - on numerous occasions. 

 

Just get the refiling in quickly, await the receipt number and get that new stamp as detailed before. 

 

 

49 minutes ago, Koke Sisman said:

 

 

So they won't help me out.

 

Probably for the best given that answer. 

Edited February 21 by mindthegap

[zeusgt 17]

1 hour ago, mindthegap said:

 

Utter rubbish.

Hope they didn't charge you for that.

 

 

USCIS would LOVE for that to be the case, and their scary strongly worded denial letters appears that way, but it isn't legally accurate. You are a permanent  resident, and you can live, work, and travel, and remain a permanent resident until a final order of removal, at which point you are no longer a permanent resident. 

 

No ifs, no buts, that is the law. Unfortunately, as is common with the law as it has evolved, naturally it does contradict itself in places, since the whole I-751 requirement was added in the mid 80s on top of existing laws, but it has been clarified in multiple places, including EOIR appeals decisions.

It is firmly established as precedent in case law. Genco Opinion 96-12 sums it up best, and I quote (my bolding):

 

"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."

 

 

There is plenty more legalese and other links and chunks of text I could paste, but I can't be bothered right now.

As my circumstances have unfortunately dictated, I have a very intricate knowledge of the I-751 process, denial process, and what happens during and after, and my knowledge is increasing every day even now. 

 

To put it bluntly, there is ZERO chance I would have travelled out of the US if my residency or ability to re-enter the US was in jeopardy after travelling post denial (all of them) if I was remotely unsure of the law here in these exact circumstances I have found myself in - identical to yours - on numerous occasions. 

 

Just get the refiling in quickly, await the receipt number and get that new stamp as detailed before. 

 

 

 

Probably for the best given that answer. 

I just want to say as someone who is currently waiting for a decision on my I-751 with a divorce waiver, the information you share here about the process is unbelievable good. Not only it provides me with immense knowledge about a lot of aspects, it also reassures me in a lot of ways about my rights in case of a future denial. I filled just a little over a year ago, so I am assuming I still have at best a couple of years ahead before a decision is made. But meanwhile, being here frequently absorbing the knowledge you share gives me a lot of ammunition to prepare myself in case I also have to fight this fight. In the meantime, I try and relax and not think about it too much while I wait. Thank you for all that you do, and I hope that OP reads all of your advice and follows it promptly. Good luck to both of you.

[Noname93 177]

15 hours ago, mindthegap said:

Utter rubbish.

Can confirm as someone who is currently on their second I-751, their second ADIT stamp, and just recently successfully traveled abroad (although that is nowhere near mindthegap's record)