Advise please

[KaneKorso 0]

Good day, I'm from Australia. I can to the US in 2017 to visit my boyfriend. He's is incarecarated and getting out in 6 years we got married and decided to do AOS. Case got denied because my husband could not attend the interview even though we have requested a waiver of his presence. I attended the interview, the officer didn't bother looking at any documentation and had clearly not even look at our file . We submitted 6 years of evidence to show a relationship. They denied the case saying it was abandoned because incarcerated "does not excuse the petitioner from attending the interview". We hired an attorney and filed a motion to reopen and reconsider. that motion remains pending and has been pending for over a year. because of the current Trump administration and it's crack down on immigration and after speaking with our attorney we figured filing a new application would be the best route to go.  so we filed new application in October, received an interview notice in December.  I attended the interview yesterday, once again the officer had no clue on our file clearly had not even looked at it and when I mentioned that my husband was incarcerated he gave me the deer in headlights look. He told both my attorney and myself that he would need to speak to his supervisor after keeping us waiting for 45 minutes He returned to us to tell us the interview would need to be rescheduled because they need to "review documents" which left both myself and my attorney confused so my question for those of you who have experience in dealing with this kind of thing. does the motion to reopen and reconsider need to be adjudicated before they deal with the new application? We explained this to the officer who was more concerned about speaking to his supervisor than listening to us.  has anyone else filed a motion to reopen and reconsider that remains pending and then filed a new application. I had spoken to a number of attorneys before hiring our current attorney and all of them said the denial was incorrect in the first place. Does anyone have any advice they could give us Thanks

[Crazy Cat 46,106]

This is way beyond the scope of a DIY web site, but a big money maker for an attorney.

 

Did these attorneys tell you to have two I-485s pending under the same category?(I don't think that is possible).  If so, that is why your case has confused USCIS officers.  Did you not withdraw the first one?  What makes the attorneys think the discretionary denial is incorrect?

 

https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-5

3. Incarcerated Petitioners

"USCIS may waive the personal appearance of a U.S. citizen spouse petitioner who is incarcerated and unable to attend the adjustment of status interview. In these situations, the adjustment applicant must appear for an interview. An officer must take all the facts and evidence surrounding each case into consideration on a case-by-case basis when deciding whether to waive the U.S. citizen spouse petitioner’s appearance."

 

I think USCIS has complete discretion in this kind of case. Hopefully, you will get a clear decision soon. 

Edited 12 hours ago by Crazy Cat

[Lemonslice 5,390]

 - https://www.visajourney.com/timeline/profile.php?id=495755

 

 

It is not clear if you returned home since visiting in 2017 - or did you overstay since then?

 

 

[KaneKorso 0]

2 hours ago, Crazy Cat said:

This is way beyond the scope of a DIY web site, but a big money maker for an attorney.

 

Did these attorneys tell you to have two I-485s pending under the same category?(I don't think that is possible).  If so, that is why your case has confused USCIS officers.  Did you not withdraw the first one?  What makes the attorneys think the discretionary denial is incorrect?

 

https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-5

3. Incarcerated Petitioners

"USCIS may waive the personal appearance of a U.S. citizen spouse petitioner who is incarcerated and unable to attend the adjustment of status interview. In these situations, the adjustment applicant must appear for an interview. An  officer must take all the facts and evidence surrounding each case into consideration on a case-by-case basis when deciding whether to waive the U.S. citizen spouse petitioner’s appearance."

 

I think USCIS has complete discretion in this kind of case. Hopefully, you will get a clear decision soon. 

For the exact reason you highlighted an officer must take all facts and evidence surrounding each case into consideration The officer certainly did not do that when we filed our application we included a request to waiver my husband's presence. At no time during the interview did the officer ask to see any one of my documentation. USCIS quoted a case out of South Carolina  involving a sex offender which had absolutely zero relevance to our case. The attorney we hired has had done cases like mine before He also has 30 years of experience.

Edited 10 hours ago by KaneKorso

[KaneKorso 0]

23 minutes ago, Lemonslice said:

 - https://www.visajourney.com/timeline/profile.php?id=495755

 

 

It is not clear if you returned home since visiting in 2017 - or did you overstay since then?

 

 

 

I have not returned home I have remained in the country since 2017 We filed our application USCIS took four years to adjudicate it and then denied it despite the fact that we had applied for a waiver of presence for my husband's appearance at the interview since he's incarcerated had supplied over 500 pages of documentation to prove a relationship the officer said he'd never heard anything quite like our case and two months later denied it. Denying it for abandonment at no point did my husband abandoned the position USCIS made no attempt to interview him despite the fact I had arranged a call with the prison on the day of the interview The officer didn't believe it was relevant.

[Lemonslice 5,390]

52 minutes ago, KaneKorso said:

I have not returned home I have remained in the country since 2017 We filed our application USCIS took four years to adjudicate it and then denied it despite the fact that we had applied for a waiver of presence for my husband's appearance at the interview since he's incarcerated had supplied over 500 pages of documentation to prove a relationship the officer said he'd never heard anything quite like our case and two months later denied it. Denying it for abandonment at no point did my husband abandoned the position USCIS made no attempt to interview him despite the fact I had arranged a call with the prison on the day of the interview The officer didn't believe it was relevant.

You can always consult with another lawyer, should you want a second opinion.  

 

I've never heard of a remote interview for an incarcerated spouse, but that does not mean that they have never been done.  Other members might remember a similar story, or do a search with incarcerated/jail/prison, etc.