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 46,120]

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 Wednesday at 09:58 PM by Crazy Cat

[Lemonslice 5,392]

 - 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 yesterday at 12:20 AM 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 5,392]

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. 

[JeanneAdil 7,438]

Several things are important here

i don't need an answer but u  should know (if u already didn't) that to serve 6+ years in Utah,  it's a 2nd degree felony

U may have been denied because of his criminal background (and don't expect a lawyer to overcome that) 

Immigration also has the duty to protect immigrant

I know falling in love and desire to be with the right one is high on the list so i wish the very best to u and pray things will work out for u

 

but read the following to understand the immigration officer 

 

https://www.utcourts.gov/en/self-help/case-categories/criminal-justice/penalties.html

 

If u met before he was incarecarated and lived with him, prove this to immigration'

did USCIS officer ask

 who is supporting u as he can't since your AOS is not complete or did u get the EAD card

who is paying the lawyer

who are u living with now

 

Utah system has strict very strict visitation rules and visits are time limited,  how do u show quality time with husband/ this is expected for all of us

https://corrections.utah.gov/family-and-friends/visitation-information/

 

and the state does not allow for conjugal visits 

https://worldpopulationreview.com/state-rankings/conjugal-visit-laws-by-state

 

His social media and who he talks to and was he still searching for mates (other than u ) before u married claiming to love them all

 

What u need to understand is immigration has  access to more info than u and they do not have to share what they learn in and they do not have to share all with u at an interview  /it is also their job to protect the immigrant 

 

[milimelo 4,987]

1 hour ago, JeanneAdil said:

Several things are important here

i don't need an answer but u  should know (if u already didn't) that to serve 6+ years in Utah,  it's a 2nd degree felony

U may have been denied because of his criminal background (and don't expect a lawyer to overcome that) 

Immigration also has the duty to protect immigrant

I know falling in love and desire to be with the right one is high on the list so i wish the very best to u and pray things will work out for u

 

but read the following to understand the immigration officer 

 

https://www.utcourts.gov/en/self-help/case-categories/criminal-justice/penalties.html

 

If u met before he was incarecarated and lived with him, prove this to immigration'

did USCIS officer ask

 who is supporting u as he can't since your AOS is not complete or did u get the EAD card

who is paying the lawyer

who are u living with now

 

Utah system has strict very strict visitation rules and visits are time limited,  how do u show quality time with husband/ this is expected for all of us

https://corrections.utah.gov/family-and-friends/visitation-information/

 

and the state does not allow for conjugal visits 

https://worldpopulationreview.com/state-rankings/conjugal-visit-laws-by-state

 

His social media and who he talks to and was he still searching for mates (other than u ) before u married claiming to love them all

 

What u need to understand is immigration has  access to more info than u and they do not have to share what they learn in and they do not have to share all with u at an interview  /it is also their job to protect the immigrant 

 

My reading is different - she knew he was incarcerated and came to visit and ended up marrying and staying - OP, what visa did you enter on? Or was it VWP?

OP's spouse still has another 6 years before release. 

OP, the quotes USCIS guidance clearly says MAY - not a must, may. That could trip you up as they can choose not to go without your spouse's presence. There's no obligation on USCIS officer to follow the may guidance. 

 

[KaneKorso 0]

13 minutes ago, milimelo said:

My reading is different - she knew he was incarcerated and came to visit and ended up marrying and staying - OP, what visa did you enter on? Or was it VWP?

OP's spouse still has another 6 years before release. 

OP, the quotes USCIS guidance clearly says MAY - not a must, may. That could trip you up as they can choose not to go without your spouse's presence. There's no obligation on USCIS officer to follow the may guidance. 

 

I entered on a visitor visa. My understanding of it is while the officer may have discretion when deciding on whether to waive or presence or not I believe it has to be within reason demanding somebody be present at an interview when they literally cannot be there because of a government hold on them would be beyond reason and the policy manual clearly states they need to take all facts of the case into consideration. I don't believe that they're not obliged to follow their own policy. The policy exists for a reason. while they may have discretion it cannot be without reason. This is a very reason people sue. For All I know the officer has got some kind of discriminatory thought on people who are incarcerated.

Edited 19 hours ago by KaneKorso

[KaneKorso 0]

2 hours ago, JeanneAdil said:

Several things are important here

i don't need an answer but u  should know (if u already didn't) that to serve 6+ years in Utah,  it's a 2nd degree felony

U may have been denied because of his criminal background (and don't expect a lawyer to overcome that) 

Immigration also has the duty to protect immigrant

I know falling in love and desire to be with the right one is high on the list so i wish the very best to u and pray things will work out for u

 

but read the following to understand the immigration officer 

 

https://www.utcourts.gov/en/self-help/case-categories/criminal-justice/penalties.html

 

If u met before he was incarecarated and lived with him, prove this to immigration'

did USCIS officer ask

 who is supporting u as he can't since your AOS is not complete or did u get the EAD card

who is paying the lawyer

who are u living with now

 

Utah system has strict very strict visitation rules and visits are time limited,  how do u show quality time with husband/ this is expected for all of us

https://corrections.utah.gov/family-and-friends/visitation-information/

 

and the state does not allow for conjugal visits 

https://worldpopulationreview.com/state-rankings/conjugal-visit-laws-by-state

 

His social media and who he talks to and was he still searching for mates (other than u ) before u married claiming to love them all

 

What u need to understand is immigration has  access to more info than u and they do not have to share what they learn in and they do not have to share all with u at an interview  /it is also their job to protect the immigrant 

 

He's criminal background has nothing to do with a petition as long as it does not fall into the the Adam Welsh act which it does not He's criminal history is irrelevant. I've been visiting my husband for 9 years I have 9 years of visiting records which have been produced by the prison themselves I am aware of what the visiting rules are. Very few states do not provide conjugal visas This is not a bar to obtaining a green card Florida does not have conjugal visits North Carolina it does not have conjugal visits and yet they have cases where spouses even on death row haven't given green cards. The social media thing is completely irrelevant because he doesn't go on social media and never has. I absolutely hope that immigration has access to more things than we know because then they will see and clearly see our marriage is real. 

[KaneKorso 0]

20 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. 

Yes both attorneys that I've spoken to both have over 30 years of experience both told me it is not necessary to wait for an I290b motion to reopen or reconsider to be adjudicated before refiling a new application. I also believe that why USCIS may have discretion it has to be within reason demonic somebody be at an interview and they literally cannot be there because of a governmental hold would be unreasonable.

[JeanneAdil 7,438]

4 minutes ago, KaneKorso said:

Yes both attorneys that I've spoken to both have over 30 years of experience both told me it is not necessary to wait for an I290b motion to reopen or reconsider to be adjudicated before refiling a new application. I also believe that why USCIS may have discretion it has to be within reason demonic somebody be at an interview and they literally cannot be there because of a governmental hold would be unreasonable.

case-by-case basis when deciding whether to waive the U.S. citizen spouse petitioner’s appearance."

 

the officer has complete authority (and checked with supervisor) 

11 minutes ago, KaneKorso said:

He's criminal background has nothing to do with a petition as long as it does not fall into the the Adam Welsh act which it does not He's criminal history is irrelevant. I've been visiting my husband for 9 years I have 9 years of visiting records which have been produced by the prison themselves I am aware of what the visiting rules are. Very few states do not provide conjugal visas This is not a bar to obtaining a green card Florida does not have conjugal visits North Carolina it does not have conjugal visits and yet they have cases where spouses even on death row haven't given green cards. The social media thing is completely irrelevant because he doesn't go on social media and never has. I absolutely hope that immigration has access to more things than we know because then they will see and clearly see our marriage is real. 

can not go on social media now but how did u meet ?  How did u talk to him from Australia?

 

BTW there are at least 2 other VJ members here that went thru this process for a jailed inmate/ u can search that in the above search box and send a message to either of the 2 i remember to find out how they made out / just post USC is in prison , how do i AOS  and u will see posts   / they do go back quite a while but the posts are there

[JeanneAdil 7,438]

35 minutes ago, milimelo said:

My reading is different - she knew he was incarcerated and came to visit and ended up marrying and staying - OP, what visa did you enter on? Or was it VWP?

OP's spouse still has another 6 years before release. 

OP, the quotes USCIS guidance clearly says MAY - not a must, may. That could trip you up as they can choose not to go without your spouse's presence. There's no obligation on USCIS officer to follow the may guidance. 

 

it may be so but that would mean he has a 15 year sentence making his felony more severe (from the Utah site  i posted ) 1st degree felony 

[Boiler 48,568]

You have been here awfully long.

 

unless they exercise their discretion I do not see a way froward

[KaneKorso 0]

3 minutes ago, Boiler said:

You have been here awfully long.

 

unless they exercise their discretion I do not see a way froward

not quite sure what you mean? Are you telling me that this is an impossibility despite the fact that you have people on this forum we have gone through the same thing I'm going through??