Hanane حنان

Sit back and relax. USCIS can take up to 12 months for I-130 processing. 

The processing times reported by USCIS for the I-130 should not be interpreted as the average time it takes to process a case. The reported times used a "cycle time methodology" which you can read about here: Case Processing Times (uscis.gov).
 
Basically, you pick reference month and see how many cases are pending. Then you calculate how many previous months of cases it takes to match the reference month's pending cases. USCIS doesn't release how many cases they receive each month for the I-130, but they do release quarterly cases (located here Immigration and Citizenship Data | USCIS). Let's work through a real example in the Texas Service Center.
 
In Jul-Sep 2021, Texas had 69,088 pending I-130 IR1/CR1 cases.
 
In Apr-Jun 2021, they received 21,888
In Jan-Mar 2021, they received 18,737
In Oct-Dec 2020, they received 19,653
 
21,888 + 18,737 + 19,653 = 60,278.
 
So it takes roughly 9-months (Oct 2020-Jun 2021) of receipts to equal the number of pending cases for Jul-Sep 2021. In Aug 2021, the wait time for Texas was 9.0 - 11.5 months, which is exactly what you would expect given the data USCIS provides. I understand this to mean that if you applied in Oct-Dec 2020, you should expect your case to have been processed by Jul-Sep 2021. I view this as an imperfect methodology but it likely gets you in the ballpark. I think the major issue with this method is it doesn't account for complex cases that take longer to process. Those cases will sit, but USCIS expects even those cases will be processed by the upper limit of the range. Only if a case is outside of that range can a person inquire about their case. 
 
You can imagine that if a service center receives a growing number of cases but their ability to process those cases stays the same, it will quickly grow the timeline for processing. Conversely, if they receive fewer cases or expand their ability to process cases, the time will lower.
 
The better methodology many USCIS forms use is the "Processing Time Methodology." They first calculate the amount of time it took to make a judgement on every case (e.g., approve, deny) in the last 6-months for a given form. Then they take the median of that number (50th percentile). That is the lower range. They also calculate the 93rd percentile and that is the upper range. If the lower-upper range was 9-15 months, that means that 50% of cases were processed within 9 months or less and 93% of cases were processed within 15 months or less. Interestingly, they do use this methodology for the historical processing times, but that data is provided overall for all service centers and for immediate relatives only. That information can be found here: Historic Processing Times (uscis.gov)
 
The thing I don't understand and I haven't seen addressed elsewhere is why some cases seemingly get processed much faster. Using the Texas Service Center above, you would expect non-complex cases submitted in Oct-Dec 2020 would get processed before Jan-Jun 2021 cases, but we have all seen examples of when that doesn't happen. Although, in general, they do seem to process them in a first in, first out process. 
 

18 months is probably a reasonable average for both.  There are other aspects of each to consider.
Every couple has their own priorities, and each couple must decide which visa is better for their situation.
K-1        
    More expensive than CR-1    
    Requires Adjustment of Status after marriage (expensive and requires a lot of paperwork)    
    Spouse can not leave the US until she/he receives approved Advance Parole (approx 6-8 months)    
    Spouse can not work until she/he receives EAD (approx 6-8 months)    
    Some people have had problems with driver licenses, Social Security cards, leases, bank account during this period    
    Spouse will not receive Green Card for many months after Adjustment of Status is filed.
    A denied K-1 is sent back to USCIS to expire
  
CR-1
    Less expensive than K-1    
    No Adjustment of Status(I-485, I-131, I-765) required.    
    Spouse can immediately travel outside the US    
    Spouse is authorized to work immediately upon arrival.    
    Spouse receives Social Security Card and Green Card within 2 or 3 weeks after entering the US    
    Opening a bank account, getting a driver's license, etc. are very easily accomplished with GC, SS card, and passport.
    Spouse has legal permanent Resident status IMMEDIATELY upon entry to US.
   

 
 

The I-864 is required by NVC BEFORE a case is document qualified .  If I felt I needed a joint sponsor, I would submit the I-864 to NVC as soon as possible.

"An ounce of prevention is worth a pound of cure".....  Sometimes, comments are also intended to help explain, to others who might read the thread later,  how a situation arose, and how it can be prevented in the future.  We, all, have made mistakes.  Hopefully, our questions and subsequent comments can help us as well as others in the future.  We are all free to give advice.......and we are all free to ignore said advice. 

omg why u wasting ur time with me????
go enjoy ur sunday

If the injury you, is the same I had, it too 8 month to repair. 

Why? If he filed a proper I-485, it will not matter if his B2 status expires.  He is granted authorized stay. Did you file an I-130?

No. AOS filing itself doesn't change the existing non immigrant status. Using AOS based EAD/AP for work/travel will void the existing status.
 
I mean you husband is still on B2 status but that doesn't matter. You have already filed i485. Even if his B2 expires, he will be on authorized stay period, so don't worry.
 

Next step:  packing his bags.  I don't see a way out of this.  He is out of status and needs to leave asap.

When VJ truly shines... Thanks for taking the time to write this.

Right, I have had a cup of tea, and some chocolate (proper english dairy milk, natch, not that horrid hershey rubbish you get over here), so here is some potentially useful info for you. 
I suggest you also get a cup of tea, as this is a long one......
 
 
As one of the few on here who has unfortunately experienced a denial, and is still going through this hell in some form, I can offer the following advice, with the caveat that I am not an immigration attorney.
 
 
 
 
Firstly, don't panic. Yes it is a scary letter. I was a f***ing suicidal mess when I received one, and spent three days initially without any sleep whatsoever reading every single thing I could possibly find on the legalities of this stuff, which served me very well, and I can hopefully help you out now too, as I have learnt a lot more in the time since.
 
All is not as it appears... USCIS have no authority to formally terminate your status. Yes, you heard me. Only an immigration judge can formally terminate your LPR status, in court, and issue a final order of removal at which point your status is terminated for good. You currently remain a conditional LPR (with caveats). 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 as you will read below. DO NOT LEAVE THE US UNTIL YOU HAVE A STAMP - not Mexico, not Canada. You are in a world of hurt if you do so...and it will be a lot harder for you.
 
 
The general standard process of denial, and process for revocation of status and an order of removal is:
Denial letter (or notice of intent to deny) --> NTA (notice to appear in court)  ---> court date ----> upheld/overturned --> appeal if upheld --> final determination and final order of removal.
 
Now, an NTA can take years to appear. The immigration courts are so backlogged, and these cases are low priority vs asylum or other deportable or criminal aliens. So you could continue with this stamp for as long as necessary, but it is no way to live, so there are things you can and should do to protect yourself.
 
 
So, file an I-751. Prepare the I-751 exactly as you would normally, filling it out correctly, making sure you both sign it, and get it sent in, I suggest by fedex overnight as it is very secure and properly trackable. I would suggest you to get this sent in the next day or so if possible - time is of the essence at this moment. Amassing every bit of evidence can wait until later, just get it in with the main bulk of evidence you already have.
The most important thing is with this I-751, is that you MUST enclose a letter stating the reason for failing to file your I-751 on time, and why you are filing late at this time. Don't bother with a full contents list of evidence and all that rubbish  - just a simple, clear and to the point letter, stating why it is being filed late, and enclosing the main bulk of evidence you already have, should suffice. 
As long as you enclose that letter. It *should* be accepted, you will receive the receipt/extension notice, followed by the usual biometrics appointment. If you have any letters, say from a Dr or shrink at that time signing you off work, or stating you were depressed/medicated due to grief, then that only strengthens your case. 
I would say the death of a parent while pregnant is a pretty real and valid reason IMHO. 
 
 
As soon as you receive the extension letter, go to an infopass and obtain an I-551 stamp, showing them the letter, and stating that you require unambiguous proof of status, which is clarified below, 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)."
 
And Genco Opinon 96-12 itself:
""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)."
 
 
 
 
 
Still with me? Good. Get yourself another cup of tea.
 
Within a couple of days of receiving my scary denial letter, I had sent a new I-751, and I then received my receipt, then biometrics letter, and I went to get a stamp. Since then, I have left and returned to the US multiple times, with no issue - bar a quick and polite visit to secondary each time to verify my status (as my stamp is annotated with 'TC-1' , telling them it has been denied/re-opened). I am awaiting my citizenship interview now, which unfortunately has been delayed slightly due to this. 
 
To date I have had no NTA, and when I call the automated line, it shows nothing. The phone line is 1-800-898-7180. Have your A# to hand, and use the automated system, which will tell you if an NTA has been issued or there are any proceedings underway.
My suspicion is that if you file quickly enough (and within the 30 days allowed for an I-290B to be filed), it stops the file being passed to the courts for an NTA. As yours is a very recent denial letter, you stand a good chance of this also happening to you. 
 
Even if you do receive an NTA, any proceedings would be immediately stayed (paused) with a still-pending I-751 (which is why you must file it). This will be adjudicated on its merits and the evidence provided, without prejudice.
 
 
But ultimately my point is, DON'T PANIC....all is not lost, you have rights, and you won't be sent on the next plane home, or arrested in the street. Just get that 751 in asap and see what happens then.
 
 

Cool. Thanks for that info - clarifies a few things and makes it much easier.
To me, there is no misrepresentation fear here. In fact, the interviewer themselves potentially screwed up here by not asking them if they wanted to switch to a divorce waiver and then subsequently be RFE'd for the final decree when it comes, instead of suggesting the spouse withdrew..... but nothing can really be done about that now...at least not easily anyway. 
 
So yeah, prepare an entirely new package with as much evidence as possible with the divorce waiver box ticked  - wait for the divorce decree if possible if it is imminent - and get it in. 
No 'late filing' request is required at all - just get it in, with another payment, and wait for the receipt/extension. They then need to make an infopass appointment for a stamp as proof of status as the extension letter by itself is useless.
Then back to waiting again....
Divorce is not a reason for denial either.
 
The other option would be an I-290B with the divorce decree on the basis of previously unsubmitted information that would have given a different outcome, but this is a) just as expensive as as a fresh filing and b) has an unknown timeline, and c) has a high failure rate, plus a couple of other pitfalls. Lawyer will advise I have no doubt. 
 
Please tell your friend not to worry - they remain a permanent resident and have laws and processes designed to protect them, that however much USCIS would like them to, cannot simply over-ride at their whim. 

Mine isn't a divorce waiver situation AT ALL. It is two denials for two filings, and nothing to do with the divorce waiver at all. It is something significantly more serious than that, which is why I am in almost seventh year of this ROC process. 
 
I'm certainly not minimising it in any way at all whatsoever -  I was a suicidal bleeping mess when I received each of my denials, and I truly wouldn't wish that on anyone (except possibly my ex-spouse who can burn in hell for maliciously causing this whole mess out of narcissistic spite )
 
What I am doing, is giving my assessment based on the information provided and quoted, and from my direct personal experience of a sort of similar situation, and stating what I know of the law, and their rights and protections under it.
What I am certainly not doing, is scaremongering and telling someone to pack their bags and that they will have to leave, because it isn't the case and it simply does not work in that way. 
They are a very VERY long way from that, happening, if ever and they have many options available to them and avenues to explore before it even gets close to that point.

Calm down, dear.
The 'rubbish' was because you said "His right to live and work in the US has been terminated." (it hasn't been) and "Next step:  packing his bags.  I don't see a way out of this.  He is out of status and needs to leave asap." (he isn't and doesn't).
 
How do I know this is rubbish?
Unfortunately from direct experience, and precisely because I have received two denials and two denial letters with exactly the same standard wording.
It has no legal basis, as the only person who can strip someone of their permanent residence is an immigration judge. Up to that time they are entitled to live, work, and travel, and obtain stamps as proof of this. This is why I have had ten stamps, and have left and re-entered the US multiple times and been re-stamped in as LPR/ARC as normal. They are also entitled to (re)file as many I-751s as they like, which all must be adjudicated. 
This isn't speculation - it is legal fact, unlike the letter. I also in the past have posted lengthy quotations of the precise legalese of this before - including, amongst other things, highlighted passages from genco opinion 96-12 confirming this
 
You did also make some valid points too!

Well I can't read the letters, so I'm unsure.
I'm guessing from the general tone that they already separated/not living together at the time of filing?
The spouse signed and attended the interview, so was certainly co-operative.
The line from the letter as quoted by someone else is very interesting to me: “During your interview, your spouse voluntarily withdrew the I-751 petition in the form of
because you and your spouse has not been residing together since December 2019 due to and wish to have a chance to reassess your marital relationship”
It could be argued that that very line and the signing and attending by the spouse proves they had no choice but to file jointly, as they did not want to get divorced....yet...as they were working on the relationship, and it was simply a separation - which technically doesn't exist in USCIS' eyes as you are either married, or divorced. 
That he wasn't upfront with USCIS in this respect - hell, even AT the interview he could had voluntarily said 'hey we are now separated and undergoing divorce, I'll provide the decree as soon as it is done" -  was indeed monumentally stupid,  so while it is a big deal,  I'm not so sure it is the death knell many are making it out to be here.
 
 
 
 

Doomed and long, drawn out immigration cases are preferred by lawyers..... 😉 $$$

Legally, yes. 
In the eyes of USCIS you are divorced or married, and it is entirely legally possible and permitted to file & have approved a joint petition when not living together. However the omission of this pertinent fact was not so smart, and therein lies the rub. 

Correct - you cannot 'appeal' it except on two very specific grounds, which do not apply here at this moment in time. 
 
Your second statement is rubbish
 
 
The denial letters usually answer jack all. They are appalling.
 
- Correct - you cannot 'appeal' it except on two very specific grounds using an i-290B, which do not apply here at the present time. 
 
- His right to live & work in the US has NOT been terminated. That is complete BS. Yes I know what the letter says as I have had two of them, but it is NOT legally accurate. He can live, work, and travel (with a stamp) and remains a LPR until a final order of removal by an immigration judge. 
 
 
 
Absolute, total rubbish. This is scaremongering and not true in ANY capacity. 
 
 
 
Anyone can file as many I-751s as they want. He is perfectly eligible to file a new one and remains free to do so up to the point if and when a final order of removal by an immigration judge, at which point he is no longer a LPR.
You can file a waiver even if not fully divorced - it just can't be approved without a final divorce decree. 
 
 
 
Correct on all counts. Thank you for beating me to positing some accurate information. 
 
 
Nope.
No 'valid reason' or excuse is required for a waiver filing outside of the 90 day period. It can be filed at ANY time between gaining permanent residence and a final order of removal, without penalty. 
He remains a LPR. 
 
Correct on all counts. 
 
 
Probably for the same reason mine did something sort of similar and just as evil - because some people just want to watch people burn.
 
 
 
 
I can't read the OPs attached letters for some reason but I get the gist of it and I can also unfortunately recall from memory large chunks of what the denial latter said, so I may be guessing in parts as I can't read it, but the OPs friend was sort of in a tricky situation.
In the eyes of USCIS, legally, you are married or divorced. He couldn't file as a divorce waiver because they were still married. He technically could still have filed as joint as they did - even if not living together - with a co-operative spouse, which they appeared to do but this was then nuked by the spouse at interview.
He should have immediately requested a switch to a divorce waiver at the interview and then hope it comes through quickly - this would have been one legal option.
If it was to arrive quickly then potentially an i-290B could be filed on the basis of new previously unsubmitted documents (in the form of a divorce decree), but using the i-290B to overcome a denial is in my opinion a hiding to nothing with an unknown timeline, and costs almost the same as a fresh filing anyway. 
Caught between a a rock and a hard place. I have some sympathy. There is some documentation I can dig out from my extensive files on this stuff, but I'm still largely on hiatus from here thanks to some over-zealous people who won't answer questions or take constructive crticism, so I may get round to it eventually. 
 
 
He needs to prepare a divorce waiver filing to resubmit as soon as possible, including resubmission of ALL the evidence, even if previously submitted as they won't take into account the evidence contained within the denied filing. This needs to be accompanied by the final divorce decree, if in hand, or sent in soon after. 
 
 
 

A post with name-calling has been removed, along with two replies (one itself inappropriate).  Remain respectful when posting.
 
VJ Moderation

Since this post is about the child's citizenship, he will be granted CRBA as a child born out of wedlock if OP has required US physical presence and required other evidences. Whether OP goes to jail in MA for bigamy or whether he goes to jail in Morocco for not following required steps for 2nd wife are separate issues, good for debate but wouldn't affect the child's citizenship.

You applied two months ago.  Be patient.   
 
There is nothing you can do to expedite anything.    There are lots of couples ahead of you.  

It’s not about been honest .You gave the wrong answer when you said yes.your answer should be .NO I don’t smoke weed since you haven’t smoked for a long time or you quit . The question was about the present time . But if the question was:( have you smoked weed before ?)Then You have to choose between two answer or just be honest.anyway. They will know if you smoke weed or not when it comes to your blood test or your urine.

I was reading about mumps. What I learned is they re contagious. And don’t be too close to close ones in the first week .and all doctors agree that they go away within two weeks as long as you get good rest .drink lots of fluid and if you have a fever or a headache  contact your doctor what kind of pills are good for you. Hope you have a good immune system so that your body can fight it out very quick. 

There was a former president who s been asked if he smoked weed before. He said , I inhale once . So he was honest  and he wasn’t suspended from your whatever program of yours. And he s been elected for 8 years. And the medical program I’m in is sinsemilla.