motopokep10

7 hours ago, Sweet5884 said:

How did your friend you get the green card through the 2nd marriage?  Also, he applied the i 751 for the 1st marriage or not? Someone in same situation here, thats why i am asking

her 2nd husband filed an I-130 and her I-485 got approved.   she did apply for I-751 through 1st marriage, but abandoned it.  what is your situation?  at what stage are you?  did you get a NOID or a denial?  are you going to immigration court?  what is your lawyer saying?  describe your situation either here or in  PM please

INA § 1256(a)  imposes a 5-year limit for a green card holder to have their lawful permanent resident status rescinded.  Does that apply to conditional residents?  If an I-751 took 5 years to be denied and the person has been a conditional lawful permanent resident for 8 years by now (status adjusted in the US through I-485) is there anything that says that INA § 1256(a) is not applicable?   Can anyone cite a case or a BIA decision please?  Thank you.

9 hours ago, Villanelle said:

Im also not sure why you think you can get a 360 approved if they have a finding of a fraud marriage in the records? https://www.uscis.gov/sites/default/files/err/B9 - Battered Spouse or Child/Decisions_Issued_in_2015/OCT212015_01B9204.pdf

 

 

Thank you so much.  She's been to quite a few consultations, no one can tell her anything coherent, no one has a plan. I've done much legal research and found some language that section 204(c) does not attach to I-360 VAWA...we were happy, I thought I found the holy grail, it was a way out of the labyrinth, our hopes were up, until I saw that BIA decision you sent today.  There reason I thanked you is because you sent very valuable information, even if it unfavorable.  I will keep searching.     Can I PM you, is that possible on here?  I am impressed.

1 minute ago, TBoneTX said:

Similar-themed threads have been merged.

hm...my 2nd thread posed a specific and different question:  Can an I-360 be filed if the I-751 is pending?

I-751 filed on 3 waiver grounds (battered spouse, bona fide marriage that ended, and hardship) pending beyond processing times.  Time is running out to file the I-360 for battered spouse classification, because soon it will be 2 years since the divorce and after that, the battered spouse cannot file the I-360.There is a high chance the I-751 will be denied, not because of issues with proving battery or that this 2nd marriage was real, but because of difficulty of proving that the first marriage of well over a decade ago, was not a sham.   If the waiver-based I-751 will be denied after 2 years pass after divorce, the I-360 can't be filed then. The I-360 based on battery during 2nd marriage would be approved regardless of USCIS finding 1st marriage to be a sham, because even if section 204(c) attaches, it does not prohibit an approval of an I-360. USCIS may deny the I-485 that she would file based on I-360 approval, due to same section 204(c) ban, but at least she can get cancellation of removal based on I-360, through section INA § 237(a)(1)(H)(ii), and there is a chance to adjust through 8 USC 1229b.  Can an I-360 be filed by a conditional resident with a pending I-751?  

On 7/22/2020 at 1:22 AM, geowrian said:

More specifically, in order to successfully remove conditions via the abuse waiver, one must show both 1) abuse and 2) a bona fide marriage.

If a prior marriage was a sham, this is a bar for any future marriage based benefit. Essentially, they made a material misrepresented about the validity of their marriage, and therefore are inadmissible. There is no statute of limitations on fraud or misrepresentation.

They can also review the entire immigration history of the applicant. So if they have a basis to believe they gained their current LPR status incorrectly (i.e. via a petition that should have been denied), that is basis for denial of the I-751 and starting removal proceedings.

 

See INA 204(c) for the explanation as to why the latest I-130 petition "should have" been denied if the prior marriage was a sham to obtain an immigration benefit: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1154&num=0&edition=prelim

 

Time to lawyer up.

Regardless of what USCIS says, she will (eventually) get to make her case to an immigration judge. Find a good lawyer and heed their advice. Although I would expect it to focus on why the prior marriage was not fraudulent (which can be that it was legitimate but that they only failed to prove it's legitimacy, which is different than a determination of fraud) as that appears to be the basis for the denial now.

I found a way out:  Section 204(c) does not prohibit an approval of an I-360 classification of a battered spouse.  Once the I-360 is approved, she can file an I-485.  If they deny the I-485 based on section 204(c) (it will be discretionary), I-360 battered spouse classification allows her to obtain waiver of deportation through 237(a)(1)(H)(ii),  and there is a way to adjust (get green card) through 8 USC 1229b, as she's been a green card holder for over 5 years.  

Friend got 2-year conditional green card from first marriage, 10 years ago.  Then divorced and never got the 10-year card through first marriage.  Remarried, got another 2-year green card through 2nd marriage, was battered by US citizen husband, and filed I-751 on waiver grounds of being battered (and hardship).   USCIS started doubting her first marriage, made calls to first husband and his friends, who all said it was a sham marriage.     Now USCIS intends to deny the I-751 filed as a battered spouse waiver, on grounds that first marriage was a sham.

Anyone had a similar situation?   Isn't there a law that if USCIS already issued a second green card, and she has a solid waiver case (battery, and marriage terminated but was good-faith marriage), that USCIS is precluded from asserting first marriage is a sham and can't deny her based on that?  Isn't there some exception in the law to allow the I-751 to be granted (she does have a strong waiver grounds). Please help.