Waiting for a decision

[russian_armenian 4]

Dont panic. Maybe you were denied not because of fraud but due to procedurial mistakes.

On other forum here (family changes) I have posted a few days ago how USCIS handles I-751 for people like you-time to file I-751 but no final divorce decree (separated but not divoreced at 2 year anivirsary of GC).

There is been 2 memos for immigration officers (2003 and 2005) which explains how to prepare I-751 for separated people. The expected process is unfare but that is the law (but your lawyer should know better how it is handled in real life). Anyway, according to USCIS memos, if you dont have final decree by the deadline, you cannot send I-751 with waiver based on divorce (that is what your lawyer did-but maybe rules get bended). You have 60 days grace period after 2 year anniversary when you stil can send I-751. If still not final divorce decree and you are not qualified under abuse waiver or other, rules said that you have to ask to apear before immigration judge and ask for continuaty. After 60 days grace period, your LPR status is revoked but when you ask judge for continuaty of your case, you get I-551 stamp right away for the whole time needed for divorce to be final. After that, you send I-751 with waiver based on divorce.

But I think that in situation when you are quite sure that divorce will be final long after I-751 could be adjudicated. Pretty much, like when you know that by the time of possible interview you would not have decree. Without decree I-751 with divorce waiver has to be denied.

In those memos, the addresses where final decree should be sent once available. The memos specify that you have notify CIS immidiately about separation and then divorce.

Your I-751 was denied even without RFE and interview-could be that it just wasnot prepared correctly. So, they did not want even to consider interviewing you.

Adjudicator's mannual lists some red flags for denial-different cultures, large age differance, previous I-751 by USC. Maybe you fall under some of it?

Hi, I have been waiting to hear from CSC now for about 9 months now and i didn't hear anything. i applied on 12/05/07 sent in my application, the date on my NOA is 12/12/07 and i did my biometrics on 01/05/08 and i have been waiting since then. i'm starting to worry because while applying for removal of condition i was in the process of divorcing my wife, so i couldn't include the divorce decree with the application because divorce in California takes 6 months. now the divorce was finalized in june and i don't know if i should send in my divorce decree or not. i asked my lawyer and he said that we should wait until they ask for more evidence, because then we will have a Ref number where we can send the papers through.my lawyer also stated on the cover letter that me and my wife in the process of the divorce.

any one in the same situation?? or any ideas about what i should do?!!!!!!!

[russian_armenian 4]

Here is my post from other forum.

__________

So, below are actual cut-offs from USCIS regulations and memos. One memo below is from 2003 and the other - 2005.

What I have gathered, if there is no final decree at the time of interview (and with hope that the case was not denied without interview), CPR status might be revoked but she might appeal to judge. And judge should give I-551 stamp till divorce is final and she would have to appear again.

Some on this forum write that in this situation lawyers are sending I-751 with waiver (like divorced) and explain in cover letter the situation. The memos and adjudicator's mannual are somewhat contradictory because according to mannual (you can find it on CIS web), you dont need spouse signature if he does not want. Memo is more strict or I am missing something. I hope it helps.

-----2005 memo----

If the petitioner and beneficiary filed an I-751 petition jointly but:

a)separate before a decision is made on the I-751, the beneficiary should notify

the NSC that he/she is currently separated by mailing the explanation to the NSC

at PO Box 82521, Lincoln NE 68501-2521.

b)get divorced while the I-751 petition is pending, the beneficiary should notify

the NSC that he/she is divorced, and submit a copy of the divorce decree to the

NSC at PO Box 82521, Lincoln NE 68501-2521.

• If the petitioner and beneficiary are separated or have initiated divorce

proceedings at the time the I-751 is due to be filed, the petitioner and beneficiary

may still file a joint petition if the petitioner is willing to sign the petition. If the

petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file

a petition requesting a waiver of the joint filing requirement due to divorce until

the divorce is final UNLESS abuse is the basis for such a filing. The alien’s

status may be terminated because s/he has been unable to file a timely I-751

and s/he may be placed in removal proceedings.

-----adjudicator's mannual----

Waiver . The conditional permanent resident, acting alone, may apply (also on Form I-751) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5 .The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:

• The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;

• The refusal of the petitioning spouse to join in the filing of the petition;

• A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);

• The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent; or

• Any other reason which is provided for in the Act.

Note : The alien may cite multiple reasons for filing the waiver application. In fact, other than the battered spouse/child waiver, all reasons MUST be applied for at once. (The battered spouse/child waiver may be sought either in combination with other reasons listed on the same Form I-751, or on a separately-filed Form I-751.)

-----2003 memo----

As such, an alien whose conditional resident status is approaching the 2-year anniversary

of the grant of such status, but who is unable to file a joint petition to remove the conditions

because divorce or annulment proceedings have commenced, may not apply for a waiver of the

joint filing requirement based on the “good faith” exception. 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

Dont panic. Maybe you were denied not because of fraud but due to procedurial mistakes.

On other forum here (family changes) I have posted a few days ago how USCIS handles I-751 for people like you-time to file I-751 but no final divorce decree (separated but not divoreced at 2 year anivirsary of GC).

There is been 2 memos for immigration officers (2003 and 2005) which explains how to prepare I-751 for separated people. The expected process is unfare but that is the law (but your lawyer should know better how it is handled in real life). Anyway, according to USCIS memos, if you dont have final decree by the deadline, you cannot send I-751 with waiver based on divorce (that is what your lawyer did-but maybe rules get bended). You have 60 days grace period after 2 year anniversary when you stil can send I-751. If still not final divorce decree and you are not qualified under abuse waiver or other, rules said that you have to ask to apear before immigration judge and ask for continuaty. After 60 days grace period, your LPR status is revoked but when you ask judge for continuaty of your case, you get I-551 stamp right away for the whole time needed for divorce to be final. After that, you send I-751 with waiver based on divorce.

But I think that in situation when you are quite sure that divorce will be final long after I-751 could be adjudicated. Pretty much, like when you know that by the time of possible interview you would not have decree. Without decree I-751 with divorce waiver has to be denied.

In those memos, the addresses where final decree should be sent once available. The memos specify that you have notify CIS immidiately about separation and then divorce.

Your I-751 was denied even without RFE and interview-could be that it just wasnot prepared correctly. So, they did not want even to consider interviewing you.

Adjudicator's mannual lists some red flags for denial-different cultures, large age differance, previous I-751 by USC. Maybe you fall under some of it?

Hi, I have been waiting to hear from CSC now for about 9 months now and i didn't hear anything. i applied on 12/05/07 sent in my application, the date on my NOA is 12/12/07 and i did my biometrics on 01/05/08 and i have been waiting since then. i'm starting to worry because while applying for removal of condition i was in the process of divorcing my wife, so i couldn't include the divorce decree with the application because divorce in California takes 6 months. now the divorce was finalized in june and i don't know if i should send in my divorce decree or not. i asked my lawyer and he said that we should wait until they ask for more evidence, because then we will have a Ref number where we can send the papers through.my lawyer also stated on the cover letter that me and my wife in the process of the divorce.

any one in the same situation?? or any ideas about what i should do?!!!!!!!

[safroot 1]

Thank you so much guys for your replies, i'm still waiting for the denial letter so i can start the appeal process, i have never got to receive it from the first place,i got my denial when i called to check on the status. thank yo so much for your reply Russian_armenian it's really great and it will benifit me alot in my appeal process. i'll keep u guys updated on what happens when i get my denial letter.

[safroot 1]

Thank you so much guys for your support through this difficulty, i just received my denial letter yesterday and the reason is that i filed the waiver with no divorce decree because my divorce wasn't finalized at that time. Although, that's what the memo said at that time. anyway i spoke to my lawyer and we will refile, so we will send out the package tomorrow hopefuly.

Now i just had 2 questions

when i refile and include the denial letter, am i going to have to wait another six months or will they just continue the process and look at my case first?

Also, i'm enroled in an international school now, is it safe to travel outside the country in my case or not?

Thank you so much for all your input and may god halp you all through this process

[cherr1980 1]

Yes, you can appeal. The best thing right now is to be in front of an immigration judge...your lawyer should know all this you know...

You need to contact a lawyer (I wouldn't go with the one that you had before to be honest I don't know what he was waiting! ) and ask the procedure for it, you do your own homework to search about it first. Don't go blind on this.

The law right now is pretty clear, after several memos about separation/divorce and I-751 that explains that you can't longer apply with the waiver while on separation. You MUST wait to be divorced to apply with the waiver if NOT you are consider married, period. There is no gray area any longer. It sucks when you are in divorce proceedings and your deadline to apply for I-751 will kick in.

Since you were married, you suppose to apply together unless there were extreme circumstances...if not, even you was going to apply late, you then file as divorce but with the divorce decree in hand, without that then you are not divorce in their eyes.

Anyway too late for that and still we are not sure why you got denied...you need to appeal asap. What your lawyer has told you at this moment? why he keeps waiting for things...it's beyond my logic.

Is your lawyer SURE that he hasn't received anything...I would go to his office and even check his mail! You know, it makes me wonder if your lawyer miss the RFE he was "waiting" for...uhmmm.

Good luck.

no, i haven't received the denial letter yet, but when i called them to check on my status they said that it has been denied and that they sent the notice to my lawyer. my lawyer hasn't received anythign, so they are sending it again. so the denial letter is on its way but i don;t know what to do now!!!!!!! is there hope or what??????

I believe you can appeal your case....

If your application to remove the conditions on your permanent residence is denied, you will receive a letter that will tell you why the application was denied. The process to remove you from the country will begin as soon as your application is denied. You will be allowed to have an immigration judge review the denial of your application during removal proceedings. During this review, the USCIS must prove that the facts on your application were untruthful and that your application was properly denied . If the immigration judge decides to remove you from the country, you may appeal this decision.

Generally, you may appeal within 33 days after the immigration judge decides to remove you from the country. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C. For more information, please see, How Do I Appeal?.

http://72.14.205.104/search?q=cache:O5BkhU...;cd=1&gl=us

[cherr1980 1]

Sorry, I sent the replied before your previous replied...well it's obvious the denial reason. The last memo that I got about it (I am through a waiver myself) states unfortunately that you must wait to be divorce to apply as divorcee that's it...with your divorce decree in hand.

Anyway, I don't know if they will look at your file first...I don't know if they put the denial/waiting to reopen cases in another special unit or what.

You should not travel until you received an answer from USCIS. Right now if you try to re enter you could be deny the entry...and CBP and USCIS are two different agencies...and many times they contradictes each other or careless what one has to say about the other. I wouldn't risk it. In the system you are denied remember...

[russian_armenian 4]

Your lawyer screwed you up because you have divorce decree since summer and lawyer just waited to get denial. Denial means that they put you into removal procedings. You better not travel. Good lawyers usually send a new I-751 with waiver as soon as divorce decree is in hand and attach a letter asking to close the old I-751 file.

But now you have removal process in hand. My guess is you need to send new I-751 and end removal process. Get other lawyer.

Thank you so much guys for your support through this difficulty, i just received my denial letter yesterday and the reason is that i filed the waiver with no divorce decree because my divorce wasn't finalized at that time. Although, that's what the memo said at that time. anyway i spoke to my lawyer and we will refile, so we will send out the package tomorrow hopefuly.

Now i just had 2 questions

when i refile and include the denial letter, am i going to have to wait another six months or will they just continue the process and look at my case first?

Also, i'm enroled in an international school now, is it safe to travel outside the country in my case or not?

Thank you so much for all your input and may god halp you all through this process

[russian_armenian 4]

The same questions I have as cherr1980. I have not recieved some mail, but my lawyer always got all NOAs and bio and all. You have been out of priority time and lawyer did nothing...This is bad. You might have a chance get approved if you would send divorce decree as soon as you got it. My guess is immigration put you on shelf and waited for that decree (they have accepted your file when they should not-I guess they might wait for some time for final decrees since you sent I-751 with waiver in the first place).

Yes, you can appeal. The best thing right now is to be in front of an immigration judge...your lawyer should know all this you know...

You need to contact a lawyer (I wouldn't go with the one that you had before to be honest I don't know what he was waiting! ) and ask the procedure for it, you do your own homework to search about it first. Don't go blind on this.

The law right now is pretty clear, after several memos about separation/divorce and I-751 that explains that you can't longer apply with the waiver while on separation. You MUST wait to be divorced to apply with the waiver if NOT you are consider married, period. There is no gray area any longer. It sucks when you are in divorce proceedings and your deadline to apply for I-751 will kick in.

Since you were married, you suppose to apply together unless there were extreme circumstances...if not, even you was going to apply late, you then file as divorce but with the divorce decree in hand, without that then you are not divorce in their eyes.

Anyway too late for that and still we are not sure why you got denied...you need to appeal asap. What your lawyer has told you at this moment? why he keeps waiting for things...it's beyond my logic.

Is your lawyer SURE that he hasn't received anything...I would go to his office and even check his mail! You know, it makes me wonder if your lawyer miss the RFE he was "waiting" for...uhmmm.

Good luck.

no, i haven't received the denial letter yet, but when i called them to check on my status they said that it has been denied and that they sent the notice to my lawyer. my lawyer hasn't received anythign, so they are sending it again. so the denial letter is on its way but i don;t know what to do now!!!!!!! is there hope or what??????

I believe you can appeal your case....

If your application to remove the conditions on your permanent residence is denied, you will receive a letter that will tell you why the application was denied. The process to remove you from the country will begin as soon as your application is denied. You will be allowed to have an immigration judge review the denial of your application during removal proceedings. During this review, the USCIS must prove that the facts on your application were untruthful and that your application was properly denied . If the immigration judge decides to remove you from the country, you may appeal this decision.

Generally, you may appeal within 33 days after the immigration judge decides to remove you from the country. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C. For more information, please see, How Do I Appeal?.

http://72.14.205.104/search?q=cache:O5BkhU...;cd=1&gl=us

[safroot 1]

Thank you cherr and russian for your replies.i realized that it was a mistake listening to him and not sending my divorce decree in when i had it, but it's ok now. i'm gonna send in my application at the end of this week with the divorce decree and all the evidence again. hopefuly everything will go smooth from there and i'm having another lawyer taking care of this so hopefuly it will go smooth this time.

i agree with you, i don't think it will be a good idea to travel now, oh well i hate it but i guess i'm gonna have to miss this semester.

i'll let you guys know the updates on my case and please if any of you have an experience with applying for a waiver, please let me know

Thank you