Marloon

https://www.uscis.gov/green-card/after-green-card-granted/conditional-permanent-residence/remove-conditions-permanent-residence-based-marriage
 
go to the bottom of this page. You do have 30 days to appeal. If you are out of the country and you come back within those 30 days they will let you in to talk to an immigration judge. Denial is rare. So lets hope that is not your case. Do not worry too much, it is what it is friend.

Although applications ain’t denied like that . You need to take a deep breath and trust in God everything will be alright. Remember your life is very much important . Cheers

@Marloon
Hi ,I guess you are still under processing time and dont worry too much.
coming to my case I applied on Nov 3 2016 and still waiting . Not applied for N 400.
I went through second interview in dec 2017 and rfe in january 2018 and they sent one more letter to my HR requesting for few more documents couple of weeks back and still it is pending. My application is with local office since 8 months and now its pending background checks.
I know its so stressful and no doubt going into depression but we have to keep our selves  positive.
Good luck 

I think @mindthegap said it best, only a judge can remove LPR status.  Go on your trip and if CBP gives you a problem upon return, remind them that only an immigration judge can remove LPR status.  You may have to go through secondary and there may be some waiting going on, but CBP, nor a letter from USCIS can decide case law on their own.
 
Good Luck and Safe Travels!

Tier 1 definitely not much help, I’ve been told opposite things before and kind of got used to take it with a grain of salt. Thank you for your kind words though, i appreciate it 

Even if you get denial you have the right to appeal. About traveling, do not worry as long as you have a stamp on your passport and is not expired you will be good to go and come back. They may send you to secondary and make you wait like two hours but that is "normal" they just want to make sure you are not inadmissible and even if you were you can talk to an immigration judge just do not sign any documents. This as a worse case scenario but I am sure you will be fine.

They mostly don't have the right information. You are stressing for no reason. I am 100% sure everything will be okay for you. Who knows you might be approved next week or week after that since many December filers are already approved. I am very positive for you 

How legal do you want to get?
 
 
As I said before, you will drive yourself insane. Did you actually read my signature?
I myself received a denial. Still here. I have left and re-entered the US as a LPR, and remain a LPR with proof of that status. My N-400 and second I-751 are awaiting joint adjudication.
 
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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.

However, because an alien whose Petition to Remove Conditions on Residence has been denied by the director is, strictly speaking, no longer a lawful permanent resident, the Service should not approve any Form I-130 filed by such an alien after issuance of the termination notice, but before resolution of the deportation proceeding. 8 C.F.R. § 216.4(d)(2). Nonetheless, as final termination of the alien's lawful permanent resident status is subject to review of the director's decision in deportation proceedings, we advise that if an alien in this situation does seek to file a Petition for Alien Relative, the Service should accept the petition as filed, but not adjudicate it pending conclusion of the deportation proceeding. Thus, if the alien recovers lawful permanent resident status in the deportation proceeding, the Form I-130 could be approved based on the priority date established when filed. Similarly, should the alien prevail before the immigration judge, the restoration of lawful permanent resident status would relate back to the date of termination. Thus, the period from the date of the director's notice of termination and the date of restoration of status would count as time accrued for purposes of eligibility for naturalization. Cf. INA § 216(e), 8 U.S.C. § 1186a(e).
 
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Also: 
 
Taken from USCIS  https://www.uscis.gov/sites/default/files/files/pressrelease/CRwaiver041003.pdf
"If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12)."
 

They say I can put a service request as soon as I’m outside of normal proceeding but for now I’ll just have to wait when petition gets transferred to local office for the interview (or may not). When I asked what happens if I recieve a denial while out of country, I’ve been told “it’s a very interesting question, I recommend you to talk to a lawyer” - well that was Tier1. 

Hi! I just started questioning if I filled out my petition right or if there is any problem with the way I submitted it because i filled without lawyer and I’m one of a very few people who left behind. Are you sure there is no possibility to get a straight up denial without RFE or interview? Such a gray area ...

Hi there, I understand your anxiety but you are thinking too much. How can you assume you would be denied? USCIS would never deny someone without an RFE or an interview. They give you at least 90 days to respond to RFE. Interview notice is given a month in advance. There are many applicants like you who are still waiting. If you have an I-551 stamp you can travel and you are a permanent resident with a pending I-751. You should enjoy your vacation and everything will be fine. Who knows you might be approved before your vacation, best wishes. 

1) Chances of a straight out denial without an RFE and/or interview are very low.
 
2) It isn’t popular belief, it is the law. 
Even with a denial letter, you remain a LPR until termination of status by an immigration judge. You are entitled to proof of status until a hearing (case law backs this up), and you can file as many I-751’s as you like until a final order of removal by a immigration judge, and these must be adjudicated by USCIS, which wouldn’t be possible if your status was terminated immediately upon denial. 
The denial letter may well state this (mine certainly did), but it is legally wrong. Do USCIS care? Not one bit.
 
3) You would be admitted as a LPR.
The question I was asked when they ran my denied receipt number at a POE ‘have you received a notice to appear or any letter from the court ?’ to which my answer was no. Stamped in as normal (ARC).
Note that I had filed a new I-751, and had a new receipt number, new extension later and new stamp to remove any ambiguity,  but I was still told that I would have been admitted on the original receipt number and stamp as a LPR.
 
4)Yes.
The process is stressful, and the wait long. 
As a LPR you are protected by laws, and you will drive yourself mad with worry (been there, done that).
 
 
 

I think you are worrying way more than necessary. Plus, I've seen them calling in most people for interviews lately. Go on your trip and enjoy. If it's a long one, have someone checking your mail to see whether you receive any notifications and make sure you are up to date on your I551 stamp.
I understand how annoying it can be to wait. We're waiting from August 2016 (applied for N400 in July).

Did your attny tell you you would start at the end of the line again? That is incorrect. 
 
For your particular situation, youve submitted a request to switch to a waiver but did not include the divorce decree. When USCIS gets to your file to adjudicate it they will send an RFE for the divorce decree if you havent mailed it to them yet. You will have the standard number of days to respond. (84) If you dont have the decree in that time you will be sent to immigration court where yes, an attnys help is recommended. Since you are getting the decree in 1.5 months youll probably be okay and have it to send back with the RFE in time.  When they get it they will continue processing you. You never go back to the beginning of the line so to speak. 

Its been a long time since Ive dealt with ROC case numbers but from what I remember theres some kind of issue with the 2 NOA numbers. Only one works to check the case status online (the one from biometrics) but technically the case number is the one on the NOA (the one that doesnt work). If you havent sent the letter out yet then I would recommend using both numbers. I would include them both. state NOA receipt number WAC XXXXX and biometics case number XXXXX. 

Generally speaking field office at USCIS does place an interview based on the date of arrivals from NBC regardless of petition types including employment-based I-485, Family Based I-485, and ROC as well. 
So only after NBC sends ROC to field office, do they start to schedule an interview, meaning Transfer to field office most likely means "Interview" 
 
However, I dont think it is scary to go through the interviews because many times interviews can just clarify basic information. Yes, it is still possible that they are gonna scrutinze you in very uncomfortable way, but as long as everything is bona-fide, then it actually means your status can be accordingly adjusted, which means you dont have to wait in a line for so long. IN fact, RFEs and interviews sometime make application adjusted faster, so nothing to be concerned too much

PS: I just got approved today... and I had much less evidence than you.
 
Good luck!

They really should upload an example letter for this situation to the example form section on VJ since it comes up a lot.
 
You just need to write a basic letter in a semi-formal format.
 
USCIS
address
 
RE- LPRS name,
A#
NOA case number
DOB
resident since date
address
phone number
 
date of letter
 
Request to switch to a divorce waiver
 
To whom it may concern:
 
On X date, I, (name), A# filed a joint petition with my spouse (their name) with the X service center (where you mailed it). My case number is X. (from your NOA).  On X date (spouses name) and I legally separated/physically separated/filed for divorce/divorced. Please accept this letter as my request to switch to a divorce waiver. I am/am not attaching the divorce decree. (if you are list date of divorce and court name/if not state it will provided when the court issues it.) I am also attaching X Y and Z for your consideration.
 
Signed
dated
(you can get it notarized but it doesnt have to be)
 
 
Keep a copy for your records and mail it with a tracking number to the same service center you sent the original ROC packet to.
 
Personally I would submit a short basic letter like the above and attach a longer affidavit about the relationship and its breakdown. That statement can be multiple pages long and refer to evidence that you attach. Think 'courthouse' style evidence. You can label the attachments as attachment A, B, C etc and refer to them in your affidavit. Example we had joint bank accounts at X bank (see attachment A) blah blah. We took a trip together to Hawaii (see attachment B-D) etc., 

The only other user to have something similar to you that I know of is @uzzey1 also a Aug 2016 filer, and already approved, with pretty much the exact equivalent of what you have listed. 
I don't feel like the waiver extends the process anymore than it already is, your case file, is your case file. When it's assigned to someone they'll open it just like everyone else's, sure there's more to the case, but they only have a couple of avenues: approval, RFE, or move to local office for interview... just like every other case.
My case is messy because I have no affidavit from my ex spouse and very little evidence because he is a vindictive character and would love nothing more than me to fail at this process. My divorce took 10 months! So I filed for ROC, then sent the waiver many months after with the decree. I feel your friend/you have more than enough evidence! Things happen, people break up. At USCIS' rate, people will be celebrating silver wedding anniversaries while waiting lol... 

Your application will be processed same like the applicants that filed as joint petition. Each case is different, it's a matter of how we present to USCIS our application.

I'm not sure... the only person I've seen posts from who's in the same situation is @DeenieRN and she filed in August 2016 with me. August filers are just getting approved now (about 30% of us August 2016 filers who are on our "list" have been approved) and while she hasn't been approved yet, we can't tell yet whether she's going to have to wait longer than the rest of us. 

I agree with the above. You seem to be focused on the 'how long will this take' aspect above everything else. I can understand its been a long wait, but theres nothing you can do about that. 
 
If or when you send a letter stating you are now separated, it doesnt move the case to the back of the line.  The letter will simply be put in the file and WHEN the Officer gets to your case they will see it.  So you can send the letter now and it will sit in the file for as long as it takes for your case to be looked at. Maybe enough time has passed that you will end up sending the divorce decree as well before they get to it, maybe not. 
 
The only thing I can suggest is what I have already told you. It is recommended to send a letter in a timely fashion. Interpret it as you will. Timely can mean with in days or within months. Just be advised that if you wait, and they get to your case before you take action (mail the letter or decree) you will most likely have problems in the future.  There have been people who have waited for whatever reason and then are approved without interview before they notified USCIS. If that is the case- then the only advice is to send them a letter immediately after approval explaining what happened and apologize for not notifying them and wait to see what happens. They can reopen it or they can leave it alone. But why cause issues for yourself? Hindsight is 20/20 but thats not the case here. You would be deliberately rolling the dice and theres no reason to. It doesnt change the resident since date when applying for citizenship in 5 years. 

The memo talks about divorce or legal separation documents because the USCIS only has two choices for marital status. You are either legally married or you are not (divorced). There is no status for "separated". Youre either married legally or you are not. Its that black and white.
 
It is possible to be separated with out having a formal separation agreement. If you have one you have one, if you dont you dont. Again USCIS doesnt acknowledge this as a marital status so it doesnt matter if you have a separation agreement or not. 
 
I understand your point about not sending additional documents so therefore there should be no misrep but thats not how it works. USCIS will ASSUME everything you submitted a year ago is still accurate (and there has been no changes) unless you tell them otherwise. So when they finally get around to adjudicating it they will assume it is all still correct and valid unless you tell them otherwise. This is where the misrep will come into play. By saying nothing about the current situation you are in fact misrepping the current situation by withholding the current facts.
 
Petitions dont get placed on the bottom shelf. They sit in line to wait to be worked on. When the Officer gets to it they review the info thats currently available. This should include a statement from the couple stating they are separated but want to remain in the joint petition. The officer may send an RFE asking if they are sure they want to remain in the joint petition, or they may not since theres a letter stating they want to. Yes, this will add a few months to the process (if a RFE is issued and a response sent back) BUT you should not withhold the info to avoid such a delay. It will cause future problems/. So it is what it is. If the letter advising them slows the process somewhat then it does. Theres nothing you can do about that. There is also a greater chance they will get an interview after telling them they are separated. Again theres nothing you can do about it. But the applications are generally worked on in the order they are received. You dont go back to the end of the line when you get an RFE or are selected for an interview. 
 
I really hope they do the right thing and send a letter explaining the current situation. If they choose not to, well its their choice but you all have been advised about what can happen if you withhold the info.
 
Best of luck
 
 

No, it is not necessary to update USCIS with additional current proof of the bonafides of the relationship. The whole point of what Im trying to explain is yes, things can change. You should notify USCIS if the main material fact (a pending divorce or separation {legal or just physical}) occurs. Getting a new bank account or having a child doesnt change that particular fact. Does that make sense? When you submit a joint ROC you are signing that you are a real couple that is together. When you separate or file for divorce you are no longer a couple that is together. Together in this sense means having a relationship not just physically residing in the same location. Thats what you sign acknowledging and if it changes you should notify them.
 
And technically the "old facts" as you referred to them dont change so to speak. If you had a joint account and its now closed you still HAD it at the point of submission. So thats not a misrep. Signing that you are together and then not being together is a fact they want to know about when adjudicating. 
 
The thread linked was just one example of how someone had an issue by not notifying them of the separation. There are other examples of this happening. Some are on VJ some are not. Technically you can be approved with a joint filing and be separated. There are examples of this as well on VJ and other sites. Being separated is not a reason they can deny you. It even states so in the memo. But they have to have ALL the facts to make a decision.
 
So the trouble can come usually when the person naturalizes or seeks another type of benefit. The Officer when reviewing the current case will look at the past ROC and see it was approved during a divorce or separation and if its not noted that that was known about in the ROC documents they can reopen the ROC and revoke the approval. Its rare but it has happened. They can also deny the new application for naturalization or family visa being sought based on you "misrepping" on ROC. Hopefully one day USCIS will make a policy stating you must notify them as some people (and attnys) feel that until they do they have no obligation to tell USCIS about whats going on. In my opinion this is dangerous. The whole point of VJ is to provide guidance and advice on how to make the process as smooth as possible. So the general advice on VJ is to save yourself potential heartache in the future and advise them of any pending divorce or separation that occurs after a joint ROC is filed in a timely fashion.