Missed AOS Interview

[mander1141 0]

Hello Everyone.

My wife and son had their AOS interview scheduled for last Friday (1-25-2013). Preparing for the interview was stressful, I started a new job, had to fill out and pass a background check and Security Clearance interview for my job on Monday of the same week. Even though we had each looked at our appointment letter at least a dozen times, somehow we got the receipt date (12-18-2012) and the Interview Date (above) juxtaposed, and got it into our heads that our Interview was for Monday 1-28-2013.

You seasoned folks know the result: we received our letter of denial yesterday 1-30-2013.

I didn't see our mistake until 2:00 am Saturday night, after completing all of the paper work, and double checking our appointment time. Lots of tears (my wife became physically ill worrying about the interview the previous week - so much so that I took her to see a doctor).

I called USCIS Customer Service at 8:00 am on Monday morning, and spoke with "Laura". She was very nice. Took our information, gave me Referral ID's for both my wife and son, and explained we would receive a receipt in 15 days and a new appointment letter in 30 days. Hugh SIGH of RELIEF!

I just called back to USCIS (Denial letter was mailed immediately after we didn't show for our scheduled appointment). Spoke with "Bobby". Not so friendly, but efficient and matter-of-fact. He informed me that since the reschedule was made after the date of the Denial letter, that it is null and void, and that we would have to follow the process in the Decision/Denial letter (Fill out form I-290b, pay $630, pray).

Ever forget to take your kids to Soccer practice? :: What a price to pay after having spent so much blood and treasure already!

Questions:

1)What next?

2) Should I get an InfoPass to the Center? What will be my reason/questions to ask when I go in?

3)What is the likelihood that our I-290b will be successful ("Laura" seemed to indicate that this sort of thing isn't unusual)?

4)Is it time to go see an attorney?

5)How long can my wife and son remain in the country?

6)Should I file an I-130 and I-485 right away and try to go that route?

Thanks very much in advance for your advice!

-Mal.

Edited January 31, 2013 by mander1141

[TBoneTX 43,123]

*** Thread shifted from the AOS/Family-Based case progress subforum to the main AOS Family-Based forum. ***

[little_dreamer 11]

WOW!!! Im so sorry you are going through this!! I am not sure how to direct you but I did want to tell you that my husband and I had to file an appeal as well after a denial (due to not having a sponsor) and we hired a lawyer and she filed our i-290b and we waited from end of July to Mid October for our case to be re-opened....

I would urge you to get an info pass...if they cant help you with the innocent mistake then I think you will have no choice but to appeal.

GOOD LUCK!!

[Darnell 8,478]

I say try a walk in on Monday. Plead with the security guards.

[VanessaTony 3,567]

Once you've been denied, unless it was in error (which this wasn't) then you're pretty much SOL and have to refile (I believe).

Here's why - the other poster that appealed, filed to re-open based on new evidence, that being the new sponsor. What is your "new evidence"? Can you post your denial letter or at least the reasons it lists for appealing? Usually it's something like "If you think this denial is in error you need to..." And they were correct to deny you, you missed the appointment and abandoned the process.

By all means speak with an immigration attorney and ask for their opinion on the denial/appeal and whether it's worth it. I would try and negotiate "If I don't get the appeal I don't pay" fees because they're less likely to just be trying to cheat you out of money.

I would also look at filing the I-130 and I-485 and what documentation you need for that. I'm not sure you need the I-130 honestly, the K1 is still valid and you married in the 90 days so you should just need to file the I-485 (but will most likely need another medical).

the denial notice usually gives 30 days, that's how long until she's out of status again and thus here illegally, unless you get her status extended by appeal/re-opening etc.

It might just be quicker (but not cheaper) to re-file the AOS... Lets see what others think.

[little_dreamer 11]

Once you've been denied, unless it was in error (which this wasn't) then you're pretty much SOL and have to refile (I believe).

Here's why - the other poster that appealed, filed to re-open based on new evidence, that being the new sponsor. What is your "new evidence"? Can you post your denial letter or at least the reasons it lists for appealing? Usually it's something like "If you think this denial is in error you need to..." And they were correct to deny you, you missed the appointment and abandoned the process.

By all means speak with an immigration attorney and ask for their opinion on the denial/appeal and whether it's worth it. I would try and negotiate "If I don't get the appeal I don't pay" fees because they're less likely to just be trying to cheat you out of money.

I would also look at filing the I-130 and I-485 and what documentation you need for that. I'm not sure you need the I-130 honestly, the K1 is still valid and you married in the 90 days so you should just need to file the I-485 (but will most likely need another medical).

the denial notice usually gives 30 days, that's how long until she's out of status again and thus here illegally, unless you get her status extended by appeal/re-opening etc.

It might just be quicker (but not cheaper) to re-file the AOS... Lets see what others think.

Our lawyer suggested us to refile too because with the experience she had with appeals were not good or quick...she said she has had clients wait up to 2 years...but we took our chance anyways...we figured if it took more then 6mo then we would just refile...but we got lucky and approved fast and she said we were the first and she has done over 100 appeals....which most ended up in court or refiling.....but to the OP..go talk to the USCIS office staff as soon as possible and see what your options are!

[mander1141 0]

Once you've been denied, unless it was in error (which this wasn't) then you're pretty much SOL and have to refile (I believe).

Here's why - the other poster that appealed, filed to re-open based on new evidence, that being the new sponsor. What is your "new evidence"? Can you post your denial letter or at least the reasons it lists for appealing? Usually it's something like "If you think this denial is in error you need to..." And they were correct to deny you, you missed the appointment and abandoned the process.

By all means speak with an immigration attorney and ask for their opinion on the denial/appeal and whether it's worth it. I would try and negotiate "If I don't get the appeal I don't pay" fees because they're less likely to just be trying to cheat you out of money.

I would also look at filing the I-130 and I-485 and what documentation you need for that. I'm not sure you need the I-130 honestly, the K1 is still valid and you married in the 90 days so you should just need to file the I-485 (but will most likely need another medical).

the denial notice usually gives 30 days, that's how long until she's out of status again and thus here illegally, unless you get her status extended by appeal/re-opening etc.

It might just be quicker (but not cheaper) to re-file the AOS... Lets see what others think.

Hello everyone. Thank you for your replies.

As you can imagine, I called everyone I could think of and posted here (naturally!). Most of the people I made appeals to did not respond.

Two People Did:

-- ONE --

The case work manager for a Southern California Congresswoman who has immigration and immigration reform as a major plank in her platform, initially refused to help me (even to answer questions) because we are not residents of her District. She said that (because we had missed our appointment) we were "immature", "childish", and etc. I asked her if she could just please read the denial letter and tell us what we need to do next, because frankly, having read it over again in the light of day, I don't understand what it says. At first she was reluctant ("It's very clear what it's directing you to do!!" "Your wife and son have 180 days to leave the country or they will be deported and then they will have to wait 10 years before they can return!") -The Denial letter makes no mention of time frames to vacate OR of the possibility of removal that she made in her statements.

I was angry, but I attempted to calm myself (and her too)and persisted with asking her to PLEASE read the letter and explain it to me. And then, thankfully, she caught herself and began to read it aloud. She was clearly struggling with it too. Finally, she said I should make an InfoPass appointment and request that THEY advise me.

-- TWO --

I heard back from an immigration attorney. He asked that I explain all that had happened in an email to him. I sent him the information I posted above and added as many additional details, A#, Referral ID, etc., as I could remember. He replied back to me yesterday afternoon. I won't cut-and-paste his response or reveal his name (though if you want his name, shoot me a message and I will give his contact details to you privately). This was his advice:

1) Try Infopass first and explain to the officer (honestly) what happened and hope the officer accepts your story.

2) Since we already have a timely request for a new appointment in the system, see if s/he will set it in motion.

3) If not, request a fee waiver for the I-290 (motion to reopen) and explain that you are struggling financially(He advised that in the worst case scenario, I will have to pay for the motion to reopen).

4) Make sure we carefully check the date and attend the interview this time!

5) He also said that we do not need an attorney to do this "—save your money and do what I suggest" (above) first.

In all, a day of frustration and roller-coaster emotions; but we seem to now have a clear lane to begin navigating.

Our InfoPass appointment is on February 15th. I'll let you all know how it goes.

Thanks again All and Happy Groundhog Day!

-Mal.

[Darnell 8,478]

Uncle Darnell Say -

Go in to the USCIS office on Monday, beg the guards to let you in.

Once there, ask the clerk if the A File is still there. Then explain your situation, and beg for an interview.

[VanessaTony 3,567]

Hello everyone. Thank you for your replies.

As you can imagine, I called everyone I could think of and posted here (naturally!). Most of the people I made appeals to did not respond.

Two People Did:

-- ONE --

The case work manager for a Southern California Congresswoman who has immigration and immigration reform as a major plank in her platform, initially refused to help me (even to answer questions) because we are not residents of her District. She said that (because we had missed our appointment) we were "immature", "childish", and etc. I asked her if she could just please read the denial letter and tell us what we need to do next, because frankly, having read it over again in the light of day, I don't understand what it says. At first she was reluctant ("It's very clear what it's directing you to do!!" "Your wife and son have 180 days to leave the country or they will be deported and then they will have to wait 10 years before they can return!") -The Denial letter makes no mention of time frames to vacate OR of the possibility of removal that she made in her statements.

I was angry, but I attempted to calm myself (and her too)and persisted with asking her to PLEASE read the letter and explain it to me. And then, thankfully, she caught herself and began to read it aloud. She was clearly struggling with it too. Finally, she said I should make an InfoPass appointment and request that THEY advise me.

-- TWO --

I heard back from an immigration attorney. He asked that I explain all that had happened in an email to him. I sent him the information I posted above and added as many additional details, A#, Referral ID, etc., as I could remember. He replied back to me yesterday afternoon. I won't cut-and-paste his response or reveal his name (though if you want his name, shoot me a message and I will give his contact details to you privately). This was his advice:

1) Try Infopass first and explain to the officer (honestly) what happened and hope the officer accepts your story.

2) Since we already have a timely request for a new appointment in the system, see if s/he will set it in motion.

3) If not, request a fee waiver for the I-290 (motion to reopen) and explain that you are struggling financially(He advised that in the worst case scenario, I will have to pay for the motion to reopen).

4) Make sure we carefully check the date and attend the interview this time!

5) He also said that we do not need an attorney to do this "—save your money and do what I suggest" (above) first.

In all, a day of frustration and roller-coaster emotions; but we seem to now have a clear lane to begin navigating.

Our InfoPass appointment is on February 15th. I'll let you all know how it goes.

Thanks again All and Happy Groundhog Day!

-Mal.

The attorney is a good one because of his comment about not needing an attorney but I disagree with #2 specifically. It would be "timely" if you had filed it BEFORE you missed the appointment but you filed it afterwards, and in fact after you got the denial. Effectively closing the gate after the horse has bolted.

My first step would be as he said, make an infopass and find out whether there's ANY chance they'll just re-open without you filing and let you go for the interview.

My next step would be:

1. File the motion to re-open. Best case scenario it could go really quickly and you could end up interviewed and approved and that would be awesome.

2. If they denied the motion to re-open I would then re-file the I-485 (same as how you filed it the first time, with the K1 visa stuff so no I-130 needed). I would make sure to have this money ready to go. Including money to re-take the medical. I would have a doctor decided on and the packet ready to go (you should have a copy of the first packet so it would just be a case of photocopying what you sent, reprinting the forms and signing and dating them. I would also take the opportunity to send them evidence of your relationship.

[Villanelle 4,121]

You can find info about AOS processes here- http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-6539/0-0-0-6581.html

The long and short of it- (this is all my opinion. Im not an immigration lawyer, you can read through it yourself and interpret it yourself, but this is what I take from it and what I would do and why--)

You were a K1, you were denied for failing to appear. Ok.

You can "Transferring an Adjustment of Status Application from One Underlying Eligibility Basis to Another." Because your wife is now an out of status K1 in the US. Youd have to file the 130 for her in the US.

"Background . From time to time an alien who is an applicant for adjustment under section 245 of the Act based on one (preference or immediate relative) category will prefer to have his or her application considered under another category. Likewise, an applicant for adjustment under one section of law may prefer to seek adjustment under an altogether different section of law. Examples include:

• An alien who originally applied for adjustment based on an approved I-140 petition and married a U.S. citizen while the I-485 was pending, but who now prefers to adjust based on an I-130 filed by the new spouse;

• An alien who originally applied for adjustment as the spouse of a U.S. citizen, but now prefers to be granted adjustment under an employment-based category in order to avoid having to deal with the conditional residency requirements of section 216 of the Act;"

Or maybe a K1 who was denied AOS for failing to appear and is now submitting a new 130 and 485?

"New Application or Fee Not Required . If the criteria contained in this section are met, neither a new application nor a new fee is required"

I read the conditions and it looks like you have to pay the fees. But then it says-

"if there is a break in the continuity of the adjustment application (e.g., the applicant chose to withdraw the application or the application was denied because he or she failed to appear for a scheduled interview without sufficient justification), it cannot be converted."

Yikes. I dont know if theyre going to accept your reason for missing it as 'sufficient justification'. What have you told them so far?

Then it says

"(M) Motions to Reopen and Motions to Reconsider . If an alien meets the requirements set forth in 8 CFR 103.5 , he or she may file a motion to reopen or a motion to reconsider, as appropriate. In some cases where USCIS finds that an error was made, USCIS could choose to reopen or reconsider the case on its own initiative. Once you decide to reopen or reconsider an adjustment application, the original decision has been set aside and a new decision must be reached. If all other considerations are met, between the time the decision is made to reopen or reconsider and the time the new decision is reached, the adjustment application may be converted.

Note: If the original adjustment application was based on a petition that was also denied, the alien can only establish continuing eligibility if both the adjustment application and the petition are reopened or reconsidered. "

This ^ is really important. It goes on to discuss that after the denial notice they can issue deportation orders. The only way deportation orders do not go out is if you have a pending AOS application. So you need to send in another one. I would send in both the motion to appeal and the new 130/485. If the motion to appeal is granted they will convert your other 485. If she doesnt have a pending 485 and just a motion to appeal, shes going to get deportation orders issued as she is out of status and eligible for deportation. I think if she leaves (even voluntarily, and you have to file the CR1, youre going to have to file a waiver for her being here illegally. Its going to be messy.)

When you go to the link, the processes for denials is at the very bottom of the page. Probably 2/3rds down.

[Darnell 8,478]

yup, all of that?

That's why I say 'go on Monday' and try to get in the door.

You'll find , once there, you MAY have some leeway, the IO has some leeway, and will interview you .

I think it's worth the shot, when comparing the alternatives.

[mander1141 0]

Thank you all for your thoughts.

I will go in on Monday as several of you suggest. The attorney said 'timely' about the request for a reschedule only in the sense that I attempted to do something as quickly as I could once I discovered that I had missed the appointment, not that I should expect that my request would be approved. -It wasn't. I just received those rejection letters in the mail this afternoon.

Do I need to file separate I-290Bs for my wife and son? -I assume so.

$630 times two = $1,260. -We're making all these mistakes so that hopefully someone else down the line doesn't have to!

Thanks,

-Mal.

[Villanelle 4,121]

I would assume so as well. You received 2 denial notices right? They had 2 cases? they wouldve received 2 GCs. The only thing joint wouldve been the interview. I dont think theyre going to let you get away with filing one motion to appeal/reopen/reconsider two cases.

Start at infopass. See if they will put you in for another appt. I dont think they will be able to though. Your appt was on the 25th. The denial letter was dated what? the 28th? If you had contacted them between the 25th and the 28th they most likely would have rescheduled you. You can and should attempt to argue (if the dates I gave are correct) that your interview was scheduled for Friday the 25th, you missed it in error and you contacted them the next business day- Monday the the 28th to see how to reschedule it.

They may tell you the same thing the second rep 'Bobby' did. That the date you attempted to reschedule was the same date or after the denial went out, so you cant reschedule. The system just wont allow them to put it in.

Im kind of a little confused as to why you called twice? Im kind of thinking you called at 8am and spoke to Laura who put in your reschedule request and then you got the denial in the mailbox so you called back and spoke to 'Bobby' who said- what Laura did is null and void since the denial was issued that day- is that about correct?

So go to infopass and find out if they have you in their system or not. Bobby could be mistaken. If hes not, again, you can attempt to argue that you called the same date the denial notice was generated and it should not have been generated- but I think its going to be a situation where the infopass employee is not going to be able to override the denial and put you in to a interview slot.

If thats the case, then find out how to proceed. Find out if you need to submit one motion to appeal or two. ( I think 2). Find out if you need to re-apply with the 130 and 485 or the 797 from the k1 approval and the 485. Either way its going to be AOS based on your marriage, but having to file the 130/485 is going to cost you more then if youre able to send the approval for the 129 with the 485.

[mander1141 0]

I would assume so as well. You received 2 denial notices right? They had 2 cases? they wouldve received 2 GCs. The only thing joint wouldve been the interview. I dont think theyre going to let you get away with filing one motion to appeal/reopen/reconsider two cases.

Start at infopass. See if they will put you in for another appt. I dont think they will be able to though. Your appt was on the 25th. The denial letter was dated what? the 28th? If you had contacted them between the 25th and the 28th they most likely would have rescheduled you. You can and should attempt to argue (if the dates I gave are correct) that your interview was scheduled for Friday the 25th, you missed it in error and you contacted them the next business day- Monday the the 28th to see how to reschedule it.

They may tell you the same thing the second rep 'Bobby' did. That the date you attempted to reschedule was the same date or after the denial went out, so you cant reschedule. The system just wont allow them to put it in.

Im kind of a little confused as to why you called twice? Im kind of thinking you called at 8am and spoke to Laura who put in your reschedule request and then you got the denial in the mailbox so you called back and spoke to 'Bobby' who said- what Laura did is null and void since the denial was issued that day- is that about correct?

So go to infopass and find out if they have you in their system or not. Bobby could be mistaken. If hes not, again, you can attempt to argue that you called the same date the denial notice was generated and it should not have been generated- but I think its going to be a situation where the infopass employee is not going to be able to override the denial and put you in to a interview slot.

If thats the case, then find out how to proceed. Find out if you need to submit one motion to appeal or two. ( I think 2). Find out if you need to re-apply with the 130 and 485 or the 797 from the k1 approval and the 485. Either way its going to be AOS based on your marriage, but having to file the 130/485 is going to cost you more then if youre able to send the approval for the 129 with the 485.

Hi Capri,

I'm still working my way through the information you sent in your prior post.

Yes. I called the USCIS Customer Service Center (Not InfoPass) twice.

The first time was as you said: The first business day after I DISCOVERED our error (about 2am Sunday morning). The USCIS Customer Service Center does accept Saturday calls, so I suppose the argument could be made that I should've made a call on Saturday.

The second call ("Bobby"): was immediately upon receiving the Decision/Denial (dated January 25th, the date of our appointment) letter for my wife, which was received on Wednesday. The Decision/Denial letter for my son (dated January 28th) I received on Thursday.

I made my InfoPass appointment yesterday, and it is to speak with an IO. The date of the appointment is February 15th. In making my InfoPass appointment, I used my wife's alien and receipt numbers.

I hope this is clear? Let me know if I need to explain things further. To be honest, I don't know what to say on the I-290Bs. I'm looking at examples online, and they don't match our situation, not one iota.

It's difficult to believe that I'm alone in this situation, and I'm surprised that this subject hasn't been flogged to death here on VJ and elsewhere. I feel like such a bonehead!

[Villanelle 4,121]

Are you sure your wifes denial notice is dated the same date as her interview? Thats highly unusual...

Usually they give you an opportunity to reschedule. You have your interview. You dont show up. They dont typically send out the denial notice the same day. They dont know why you didnt show up. You couldve been in an accident. It couldve been a medical emergency. Maybe you or your spouse had a heart attack or went into a diabetic coma. They dont know. They typically give you 24-48 hours to call up or go to an infopass location to alert them to whats going on/ your reason for not showing to reschedule before they send out the denial letter.

So your son getting his denial letter for missing an appt on the 25th, dated the 28th, makes sense. Your wife getting a denial letter for missing an appt on the 25th, dated the 25th- does not. Especially when it was the same appt they missed. The denial letters should have been issued by the same person at the same time. Something is wrong with the whole thing...

Its kind of one of those things though that while its 'odd' it may not be of any help to you. You can use it in your argument of 'this wasnt fair, I didnt have an opportunity to reschedule' and try to appeal to the infopass employee, but like I said, I believe once the denial notice was issued, the infopass employee cant override it put you in a slot. Perhaps they can though. (fingers crossed they can)

I do believe you should take Darnells advice and go to infopass on Monday, appt or no appt. Bring your notice for the 15th. Use it to get pass the guards if you need to (depending on the security set-up they may require a notice to get in the building, sometimes they check them, sometimes they dont, if they say the dates not correct, just either play it off and say you were able to change the date to an earlier time online and you didnt print the new confirmation or plead with them to get in. Sometimes its just a general security check at the main entrance and you dont need to show anything to enter the building but an ID) Once youre in the actual infopass office, get online if you can. If theres a security guard there that you have to deal with- then plead with him to be able to get on the line. Just take it as it comes. Go as far as you can with out saying "Im not suppose to be here- I dont have an appt."

It doesnt matter whose A# you use to make the appt with. Its just a general reference number for infopass.