FOIA Gave No Answer — How to Respond to Prior I-130 Filing Question?

[moin1212 0]

We submitted a FOIA request to USCIS to find out whether my wife (a U.S.-born U.S. citizen) ever filed an I-130 about 10 years ago with her ex-husband. She does not remember signing anything or submitting documents, and she never received a receipt or decision notice. She only vaguely remembers a possible phone call about an interview, but we are not sure whether that was from a lawyer or USCIS.

We just received a response to the FOIA request, and USCIS closed it stating that records regarding a U.S.-born citizen are not generally under their purview and therefore not covered under FOIA. So they did not confirm whether any I-130 was ever filed.

The ex-husband is completely no contact, so we cannot verify anything through him.

Now we are preparing to file a new I-130 and I-485 for me. My STEM OPT is expiring soon, so timing is very important. The I-130 asks whether the petitioner has ever previously filed a petition for anyone.

Given that:

• We genuinely do not know if anything was ever filed,

• FOIA did not provide an answer,

• There is no receipt number or documentation,

• And there is no way to confirm with the ex,

Should we answer “Yes” or “No” to the prior filing question?

We want to be fully honest and avoid any risk of misrepresentation, but we truly do not know whether anything was ever filed.

Any guidance on the safest and most accurate way to answer would be greatly appreciated.

[TBoneTX 49,348]

Welcome to the forum!

 

Here are some ideas (others may offer differing opinions):

 

It's worth even a one-time consultation with an attorney, because the urgent need to file plus possible misrepresentation isn't trivial.

 

If she has no knowledge of filing previously, answer "no" and attach a short explanation:

  -- she doesn't recall having filed

  -- she received no receipt or notice, and an FOIA request yielded no records

  -- your current filing is on the basis of her best knowledge and belief.

 

Intentional misrepresentation is far different from uncertainty disclosed in good faith.  Including this explanation neutralizes the risk of answering either "yes" without evidence or "no" without explanation.  Just file soon before your OPT expires.

 

Run the above past an attorney to see whether it's reasonable.  I think that this should satisfy USCIS and eliminate the risk of misrepresentation.

[Dashinka 26,599]

She can answer it no and provide an explanation that she is not sure, and also discuss it at the AOS interview.  
 

Good Luck!

Edited 2 hours ago by Dashinka