beso36

2 minutes ago, username_taken said:

Id be really surprised if they approve you on the spot and a GC is promptly mailed. I remember some of what you posted previously. Im not sure if I told you this last time but once a NTA is issued and you are entered into the court system you have to 'complete' what ever is necessary to get out of the court system. 

 

So a NTA was issued after you filed another AOS packet. If the NTA was issued before you filed the second packet the second packet probably wouldnt have gotten accepted and processed up to the point where an interview is scheduled. When you are in court proceedings you usually need permission to file another AOS and the judge can even adjudicate it or refer it back to USCIS. So IMO they will tell you at the interview because you are in removal proceedings they cant do anything. You will then have to wait for your court appearance next year and may have to even have several appearances and may even have to pay to refile AOS again if this last AOS is denied rather then held. The courts are very slow and backlogged. You probably wont be done with the court for many years. 

Yeah the new packet was sent before the NTA and based on my search, the best case is get i130 approved and then request close proceedings or re-file in the court.

9 hours ago, Mollie09 said:

You will still need to prove the first marriage was bonafide, can't just skip to applying for another one.

You will, of course, need to tell them at the interview that you have a denied I-751 and an NTA. They won't approve you on the spot.

I'm assuming you disclosed all of this when applying for the I-130/I-485 for your second marriage?

Thanks, After more looking into it the reasons I found in the denial letter are incorrect. I found that some pieces of evidence are not listed as it should, I acted fast filing the next packet and based the point where I can regret things at this point. Yeah, all information is disclosed and have to explain all of it again on the interview.

Thanks again all, hopefully, things will be alright at the interview and turn in my favor. Wish me luck

1 minute ago, payxibka said:

Unfortunately more than didn't seem enough 

Sorry, what do you mean?

13 minutes ago, Russ&Caro said:

Seems like evidence that your first marriage was bona fide will be required. Not sure about the on-the-spot GC. Do you have a lawyer for your appointment before a judge? I haven't heard of people trying to DIY on an NTA.

I do have evidence but as i mentioned but it didn't seem enough for the last time. I do have a lawyer, However, I am looking to know more if someone experienced the same before and what happened.

2 minutes ago, geowrian said:

No way getting out of showing that the first marriage was bona fide.

I do have evidence but as i mentioned but it didn't seem enough for the last time

Hey, I am not sure if your case got updated but this isn't normal and you should call an inquiry about the case. I had the same issue and called and a few days later they changed the case to ready to be scheduled for an interview. I am not sure if they put the case in the queue since this status change or before but it's good to inquire about it.

Thanks for your reply.i am not sure but i am afraid as it's on same status request for initial evidence was send from September and it's not updated till now , hopefully it's just a glitch in the system but i want to make sure my i765& i131 it's not going to be affected by this status

@POA Thanks a lot that's very helpful. I didn't hear from them yet and hopefully, they wouldn't deny it. Do you mind letting me know How long it takes to get the denial when you got the RFE?

On 12/6/2018 at 9:32 PM, POA said:

The didn't confirm ours. Good for you.

 

On a side note, they denied ours due to the "no-receipt" of rfe even their level 2 USCIS customer service confirmed that they have it. So good for those who gets a good service and correct information.

@POA Do you mind share how did you deal with the denial, I submitted my RFE response and never got updated since Oct 2018. Called and office confirmed it's received on Nov 2018. and till today no updated so i filed a service request to be sure what's going on

it happens that they consider i765 under the wrong category, i know someone with a similar issue and it appeared they considered his form as the wrong category, your form should be considered as (c)(9)

5 minutes ago, mindthegap said:

As one of the few on here who has experienced a denial, and is still going through this hell, despite the OPs aggresiveness and somewhat rude tone, I feel I should contribute.

 

The law does sort of contradict itself in some respects, but between an I-75 denial and a final order of removal, you remain a LPR with the right to work. You are  also entitled to proof of status in the form of a stamp. This is backed up by case law and also clarification by USCIS and the EOIR.

 

However, filing a fresh I-751 is the best way to go, as it not only puts you absolutely in unambiguous territory, with a fresh extension letter issues and no issues travelling,it also must be adjudicated on its merits before any court proceeding can continue or a final order of removal (which terminates your status) can be made.

If you file a new I-751 quickly enough after denial, it may even avoid an NTA in the first place.

 

 

 

 

 

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)."

 

 

""Genco Opinon 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)."

 

 

 

 

Your contribution revealed a lot of my stress. My only question, I remarried, I got an advice from the lawyer about filing new i-130,i-465 with the note that we still need to prove both marriages are bonafide However adding my second marriage to the case would lift less pressure on the whole case, @mindthegap what do you think? 

16 hours ago, Jojo92122 said:

Read the TOS on VJ.  You don't have the right to tell people what to do either.  This includes you not being able to tell people to not post in response to a question posted in a public forum.  

Sorry about your situation.  

Go see a qualified immigration lawyer.  You have been given good advice that you have discounted.  Since you don't believe posters here, maybe you need to get a different opinion.  

Thanks. I read However, I didn't agree with what she wrote and replied to her. Thanks for your advice.

16 hours ago, Damara said:

First I want to clarify something I received a PM about.

When I said 'refiling will put you back in auth stay' I wasnt very clear.

When your 751 is denied your status is terminated. They will send you a NTA. But technically you do have a status is just not that of an LPR. Its a temporary status to allow you to stay in the US while you are in court proceedings. Do NOT leave the US. When you are in court like this you can not leave the US - its a 10yr ban. You can also go to infopass and get a 551 stamp.

 

So you are not illegal when the 751 is denied and your status terminated. However you are not a permanent resident either- they terminated it. You can still legally work if you are employed- The time between your status being terminated and your status being reinstated by either the judge ruling in your favor in court or submitting and getting a new 751 approved does not count as out of status. Your clock for natrulization also goes back to when the GC was first issued. If you are not reinstated it is considered out of status time.

 

If you do not fix the denial (judge rules against you) you will be subject to deportation. So you can fight the denial (this involves submitting a new 751 and asking Judge for time for USCIS to review and approve it and/or presenting evidence in court and getting a favorable ruling so the old 751 will go back to USCIS for approval) or you can not fight the denial and ask for your conditional status to be closed so you can apply for AOS through new spouse. (and also to not deport you once they close it)

 

Its important to note that these matters are complex and small details matter. Immigration is governed by laws, policies, memos and court decisions. Also there are various circuit courts in the US. Depends where you live. An attny can review the specifics of your case and advise you of the best path to take. For most people this is refiling because it goes through USCIS again. Your situation may be different. Speak to your current lawyer and then speak to other lawyers and see what they have to say. All I can do is give you general information. I am not well versed on court procedures nor do I know anyone on this forum that is. This is a DIY website geared towards general filing- and your case is not DIY.

 

Anyway you cant just submit the same exact 751 packet again. The denial letter should outline the specific issues they had with you. You need to address the issues. You can use a new waiver category but if you use the same category you need new evidence. If you file a new AOS the 130 goes to USCIS to be approved and then I believe the 485 is approved by the Judge. Some time through out the lengthy court process both marriages are looked at and both need to be bonafide.

Thanks a lot for the detailed explanation, it makes more sense. Appreciate your opinion and time to write this. The issue here that I send everything we have together from the first marriage like bank statements, credit card, health insurance and photos with also other documents but they mentioned it 's insufficient because we got separated for marital issues after getting my Conditional GC. But I think you are right will try to collect extra evidence and resubmit it again. 

7 hours ago, Montu.developer said:

Hi,

 

I would suggest you to hire a lawyer. Lawyer could provide you more information. 

 

1) What was your filing date?

2) Did you receive an RFE earlier?

 

 

i filed in April 2017 and i didn't get RFE, Just the interview.

8 hours ago, Damara said:

Im not trying to be snarky but why are you not sure if you can file another 751? I just told you you can... 

 

So either you dont 100% believe me (and thats understandable this is a free public forum and not paid legal advice) or you have some other kind of unknown issue you didnt disclose that could possible prevent another filing.

I believe you but I already filed divorce waiver and if i will refile another i751. it will be under the same grounds and the reasons and evidence will be the same.

I just worried about being denied again. that's all. 

BTW, i don't have other issues

7 minutes ago, Damara said:

Why are you unsure about a renewal? Do you mean asking for one and trying to get the ROC adjudicated again? Or do you mean submitting another ROC now? You do realize you are out of status and can be detained at any time.

I am not sure if I can file another 751 with USCIS

3 hours ago, Damara said:

Generally you are a LPR until a judge says otherwise however conditional GCs are treated differently then unrestricted 10yr GCs. 

 

If or when USCIS denies a 751 your status is immediately terminated and you are sent to removal proceedings in court. You can not appeal. The judge will review the denial and USCIS has to prove they were correct in denying you. So when your 751 is denied the first thing you should do is file another one because you have no status and refiling will put you back in 'authorized stay' until its approved (and you can keep working).

 

Now I know this makes no sense. If your status is terminated then how are you able to refile? Its because the law allows you to file/refile (repeatedly if needed) the 751 up to a removal order being issued. Does that make sense?

 

For the OP- Im sorry you are going through this. An attny will be helpful to you.

 

You were just denied yesterday. So you are now out of status/no work auth. You need to file something if you want to remain in the US. USCIS's policy is once denied the 751 they send you a letter explaining why and send you to court. The letter can take up to 30 days to get but you should get it sooner. (unless your attny already got it) Then you wait for the NTA. (notice to appear). You MUST appear. But be advised it can take them a long time to send a NTA or it can come quickly. There is no min or maximum timeframe for them to get the NTA to you.

 

In court you can renew your 751 and the judge will review it and if you are successful it will get sent back to USCIS for approval. (judges cant adjudicate 751s)  If you are unsuccessful removal proceedings will go forward and you can request them to be stopped due to the fact that you are eligible (and applying for) another benefit (marriage AOS).

 

If you choose not to purse the 751 renewal in court basically skip the first sentence of the last paragraph. File the 130 packet. Removal proceedings will go forward and you need to get them stopped to proceed with AOS.

 

Court proceedings can take years to be resolved.

 

You do need to be aware that if you file for AOS after a 751 denial you have to prove BOTH marriages were legit to get approved for the new AOS.  They do not allow a new marriage/AOS to be used as a work around for a 751 denial. So remarriage does not make the problem go away.

 

If you were denied the 751 because of fraud or suspected fraud you will not be able to AOS. If it was denied because of lack of evidence you need to overcome this and prove the marriage was legit (and then prove the new marriage is legit)

 

This is just general info. An attny can review your case and advise you of the best path to take.

 

Thanks for the detailed explanation, I am not sure about the renewal yet , but I think the lack of evidence last time could be covered with the new AOS and I do have evidence for both marriages and will make sure to bring every little detail this time.

thanks again

57 minutes ago, Diane and Chris said:

Please don’t post here if you don’t want advice. We are not attorneys. We are simply giving advice based on our experiences and research. Perhaps you should have seeked advice (whether legal or on this forum) before you remarried in such a short time.  Good luck!  

Thanks for your reply but I don’t think you have any rights to tell me what to do. Yeah, I am looking for advice from people who knows the facts or tell me about similar experience. The reply above wasn’t an experience or a fact, So from my little understanding if I am not sure about something , i don’t state it as facts. Also you are not in my shoe so don’t judge what you don’t know.

4 hours ago, ApplyingforN400 said:

You are a permanent resident in the system until a judge says otherwise. 

 

Which means you cant file a new I130. Your second marriage has zero relevance to your immigration for now. Right now you need refile a new i751 waiver with better evidence, hope for an interview where you can plead your case or hope it gets approved with better documents. (Texts, emails, anything that could push it to the green)

 

If not, you’re going to have to wait for the judge to decide your case, your second marriage wont come into play until this point.  

I am not sure  you are correct , I read some posts about this in the forums and also it’s depend on the reason. Please,Don’t answer if you don’t know. It’s alreay frustrating time for any one in this situation

32 minutes ago, Mellisa said:

So you remarry before your i751 was adjudicated?

Yeah , I did marry again after my 2 year GC and before my I751 filing

If anyone can advise it would be really helpful.

Yesterday my lawyer informed that my case i751 was denied to lack of evidence for a short story I had been married in 2014 for less than 2 years then got divorced for marital issues at 2016 so I had to file a divorce waiver However I got married after in 2017 again to a different person. Now, id on;t have too many options I see a lot of people talking about IJ  but my previous lawyer advised to have my wife file for me new i130. I started to get concerned about the whole case. Can I get some advice Please?

Thank God, I didn't travel. I just heard from my lawyer yesterday that my case was denied and I was traveling tomorrow and this would be a real issue when i come back. It sucks now because I need to refile a new application. 

On 6/27/2018 at 10:39 AM, Sunnyland said:

If anything, maybe you can make an uscis  InfoPass appointment to see if they can give you an update so you can do your trip with a peace of mind.

i think this the best way to figure things out. thanks for the advise

11 hours ago, Sunnyland said:

Did you check your status online? To see if you got any update? 

PS: A friend of mine that had her interview in March, received her GC within less than 1 month from the interview. 

Yeah, I am checking it every day. it didn't reflect the interview letter but it shows received at my local office status On April 9, 2018, but I already had my interview on June 13. it's been 2 weeks now.  Hopefully will get it an approval soon.

BTW my case more complex and it's divorce wavier, I hope this would not effect the timeline.

On 6/19/2018 at 11:59 PM, Sunnyland said:

I have seen on VJ people saying that their case was denied when they were out of the country and had a hard time being allowed entry at POE. It will depend on the POE officer of course. If the I-751 petition is denied while you are abroad, you may not be able to reenter the U.S. Personally I would hold on that trip until you know for sure you are approved. Why risk it? You are almost there. You just got your interview.

Thanks for the advice. I agree with what you said, I will try to delay the trip but I am not sure I will be able to do that as it's work-related. Any estimate about how long I should wait before hearing from them back, the office mentioned between 90-120 days but this seems too long??