I-751 denied on basis of abandonment. Help!!!!!

[kevdman 5]

Hello Sages of all things Immigration. A quickie history: My Colombian wife arrives in the USA on a K-1. Everything goes swimmingly, (thanks in no small part to advice from the very kind VJ members!), up to the filing of the I-751 in February this year. Biometrics appointment went well and she was re-fingerprinted. Come October we had not heard anything from the USCIS so we set up an appointment to follow up in person a couple of weeks ago. We went to the field office and the agent said we are fine and to go home and wait. He did give us a new receipt number which I thought was kind of odd.

Just today we received in the mail a Notice of Decision denying my wife her ROC based on abandonment. The rational used by the USCIS is, "On June 27, 2013, USCIS issued a request for evidence providing the CPR, (my wife), 84 days in which to respond. That time period has elapsed and, as of this date, there is no record of a response to that request. Therefore, it is ordered that the petition is denied due to abandonment, and the CPR's conditional residence status is terminated concurrently."

#######?????? We were blown away. We have solid proof of our marriage and our now 8-year-old relationship and we sent it all in with the I-751 application. We never received any “request for evidence” in any form. No letter, calls, email or smoke signals. Are we to assume we should have received something from them in the mail as we have received all correspondence? We would have complied with any request the USICS made of us, but we never received this request.

I see we can file a Motion to Reopen, but what do we do in the meantime? Just a few questions please:

Does this mean my wife is subject to deportation?

There is a direction in the notice for her to “immediately surrender her Alien Registration Card” to a USCIS field office. Does this mean she will be taken into custody if/when we do this?

Of course we will proceed with the Motion to Reopen, but can anyone advise as to the appropriate steps to take now please?

We have made it thus far without legal representation. Maybe it is time to find a good immigration attorney.

Thank you for all you have done VJ friends.

Kevin and Erika

[apple21 953]

You didn't get a case status update regarding the RFE (from the USCIS website)?

[Hypnos 6,576]

There is no "maybe", this is definitely the time to retain good representation.

Do not go to a USCIS office without (at the absolute minimum) speaking to at least one experienced immigration attorney.

Yes, your wife may now be subject to deportation proceedings, since she is out of status and, therefore, deportable.

I suspect that you will be successful using a Motion to Re-open on the basis that you never received the RFE that was apparently sent; this is something you can pursue with a competent attorney.

[kevdman 5]

Thanks for the responses. Apple21, every time we went to the website for a status update we would receive an error message, "no case found" or some such thing. When we visited the field office earlier this month, the agent said the number on our reciept letter was wrong and he gave us a new one. When we queried on the new number we got an "in process" message. We never recieved anything by mail.

Yeah Hypnos. I think your advice is sound.

Thanks all

K and E

[victorian221b 12]

Did you do a change of address during the wait?

When I got an RFE my receipt number is different from the original NOA. If I enter the NOA number on the website I get the same "case is not found" but when I entered the RFE receipt number the site was able to pull up the info. Your situation makes me want to call up USCIS sooner than the 60 days they require to wait after submitting RFE to check on the case.

Maybe that new number you got was your RFE number and it probably got sent to the wrong address. I would go with the immigration lawyer suggestion and get an appeal.

Good luck!

[J & K 2]

Similar to what victorian221b said. Your receipt number on your NOA1 will not show up in their system. The receipt number on your biometrics appointment notice is what is formally assigned to your case file. I would also compare it to your denial notice as it may be different. Check all reciept numbers with the USCIS website.

As long as you and your wife are legit then the worst thing that can happen is that you will have to file an appeal and appear in front of an immigration judge to explain your situation. The judge will almost assuredly rule in your favor. While the burracrats at the USCIS my not understand the unexpected events that happen to real people, the immigration judge most likely will.

For now get a competent immigration lawyer (be careful, there are lots of really bad lawyers) and put aside some money for your subsequent immigration and legal fees.

Good luck,

Did you do a change of address during the wait?

When I got an RFE my receipt number is different from the original NOA. If I enter the NOA number on the website I get the same "case is not found" but when I entered the RFE receipt number the site was able to pull up the info. Your situation makes me want to call up USCIS sooner than the 60 days they require to wait after submitting RFE to check on the case.

Maybe that new number you got was your RFE number and it probably got sent to the wrong address. I would go with the immigration lawyer suggestion and get an appeal.

Good luck!

Edited October 25, 2013 by J & K

[Harpa Timsah 13,258]

You were denied for a procedural issue, not because of the quality of your marriage. You were issued a RFE and you did not respond. Of course, you never got the RFE, but they don't know that. Make sense?

I would try to get the MTR filed with a fee waiver if possible based on lack of mail arriving to your house.

I would honestly call and try to get a Tier 2 person and see if they can reopen your case based on no mail coming to your house before I retained a lawyer. Good luck.

Edited October 25, 2013 by Harpa Timsah

[Darnell 8,478]

ya, find out, with a phone call into USCIS, talking with a Tier 2 Human,

if

there were returned mail pieces on you or your wife.

Don't do anything more till you learn of that.

[kevdman 5]

Thank you for the responses. Victorian221b, no we did not change addresses. We did not recieve the RFE so we were unaware of the change in number. Actually, we started checking the case status on line within a month after we recieved the NOA. We continued to try to check status well into summer which would include dates prior to the mailing of the RFE that the USCIS states they sent. Moreover, I wonder why the agent at the field office could not tell us that the new number was associated with an RFE. Funny.

J & K, I really don't know the number stuff at all. We did try the biometrics as well and no luck. The WAC number on the numbers on the Biometrics is different than the one on the decision. They are all different, but thanks for the info. We would like to think the folks there would be reasonable.

Harpa Timsah and Darnell, I don't know what a Tier 2 person is. Would you please elaborate and explain how we would get such a person on the phone?

Again, thank you all for your helo.

[Harpa Timsah 13,258]

Tier 2: Call the USCIS number, and ask for a Tier 2 person. Tier 1 answers the phone, they are subcontractors who read from a screen. Tier 2 can actually help with your case and do stuff.

Edited October 26, 2013 by Harpa Timsah

[kevdman 5]

No kidding? I had no idea you could actually call and get a real person. Everything has gone very smoothly until this point so we never really had reason to call. Thanks much. I know it has already been commented on, but is this process something we should use an attorney for, or do you think a civilian can handle it? No offense to the legal eagles out there. We have been advised to use attornies along our entire journey, but we've done literally everything ourselves.

[Darnell 8,478]

hey - this is a DIY immigration website ! @#$@k the legal eagles !!! (legal eagle is slang for Attorney, at least here in Tejas. YMMV, greatly)

----

If'n you find there are 'returned mail pieces' on you, well, that's a problem with the post office, really,

and

that's a great reason to ask for (and get) a FREE Motion to Re-Open - but, ya gotta have the proof of the mailing attempt.

--

Uncle Darnell's Tried and True Method of Getting a Human at USCIS:

1. call the USCIS number. punch no buttons after it rings.

2. wait 2 to 4 minutes. A spanish speaking CSR will come on the line, and start talking.

3. If spanish is yer thing - GREAT ! just say 'Hey ! I need an ISO, I think there's returned mail pieces on me' or

3. Let them wind down to silence, then say 'English Please ! ' then let them wind down to silence again, and say 'Hey ! I need an ISO, I think there's returned mail pieces on me'.

--

Then once you get an ISO, just ask them if they have returned mail pieces on you, and ask what they are.

IMO, though, it's better to have them SEND IT ON, as you'll need some evidence to file with that Motion to Re-Open, to get the FEE waived, from 'non-delivery'. IMO, that's a valid reason to waive the fee.

Edited October 26, 2013 by Darnell

[kevdman 5]

Hey Uncle Darnell,

Just an update. We called the USCIS number. Used your method and not only got a Tier II human, but a really nice and helpful bilingual person. She looked around to see if the RFE had been sent and she said she could not see that one had been mailed at all. She filed a request to reopen/investigate our file to the California Service Center. She gave us the confirmation and number and said they have 15 days to figure things out and should get right back to us.

I will keep you posted.

Thanks much!

[Darnell 8,478]

Well, some movement, of sorts.

IMO, movement of any kind, is useful.

Good on ya, for getting with an ISO - I pray this gets sussed out in their 'posted' timeframe.

[victorian221b 12]

That's very good to hear, good luck

Hey Uncle Darnell,

Just an update. We called the USCIS number. Used your method and not only got a Tier II human, but a really nice and helpful bilingual person. She looked around to see if the RFE had been sent and she said she could not see that one had been mailed at all. She filed a request to reopen/investigate our file to the California Service Center. She gave us the confirmation and number and said they have 15 days to figure things out and should get right back to us.

I will keep you posted.

Thanks much!