Not file I-751 but will get 10 yrs CG

[korat2michigan 0]

My friend failed to file I-751 and her 2 yrs GC was expired for 1 yr now.( She came with K1) Her first lawyer neglected to file the application then she hired the new lawyer. Her marriage life was not smooth before but seems all right now. Her husband helps to joint to file finally. One thing I don't understand and am not sure if it's true or not...Her new lawyer said she couldn't file I -751 at all because it's too late. Then he decided to file for adjustment of status based on a new marriage. (Just like she never got any GC.) He filed these three forms for her;

- I -130 = Petition for Alien Relative $355

- I- 485=Application to Register Permanent Residence or Adjust Status $930

- I- 765 =Application for Employment Authorization $340

He told that she will get the notice for those three forms soon..then biometric...then interview and she will get 10 yrs GC in 5-6 months blah blah blah He asked her for a new medical exam with the sealed envelope to file with the package too!! She has to spend about $4,000 for this lawyer.

As far as I know, we can file I-751 late but we must have the good reason to convince the USCIS...Also from the instruction of Form I 751 P.1 also shows that "...if your failure to file was through no fault of your own, you may file your petition late with a written explaination and request that USCIS excuse the late filing. ..." http://www.uscis.gov/files/form/I-751instr.pdf

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Has anybody heard about the solution like the new lawyer did? File I-130, I-485 and I-765 to get 10 yrs GC... Possible?!?!

Thanks for sharing what you have known.

[TracyTN 237]

So did she marry a new guy or not? If not, I don't think what the lawyer suggested will fly. She should have filed the I 751 late with an explanation as to why it was late.

Even if she did marry someone new, I'm skeptical of that approach, but would hope an attorney would know what they were doing.

[korat2michigan 0]

So did she marry a new guy or not? If not, I don't think what the lawyer suggested will fly. She should have filed the I 751 late with an explanation as to why it was late.

Even if she did marry someone new, I'm skeptical of that approach, but would hope an attorney would know what they were doing.

No...She still lives with her husband. No new marriage....Their marriage life is cat and dog. I hope that lawyer knows what he is doing too. They just filed all forms yesterday. When she told me about the forms they filed, then I started to research....and want to find from more resources too...

Thanks for your comment!

[Otto 83]

Sounds like the lawyer is filing (I-130, I-485 etc) as if they had never filed AOS the first time - presumably he/she knows what they're doing. You can file the I-751 late, attach a letter of explanation but if the reason isn't compelling enough, the next steps USCIS take is usually not a desirable one. (Which is probably why the attorney is suggesting an alternate route would be my guess.)

Recent USCIS memo regarding late filing of I-751 (Lifting/Removing of Conditions).

[Kathryn41 3,205]

Yes, this is a possible solution to failing to file the I-751 in a timely way. When the green card expired and she hadn't filed to remove conditions she was out of status. She has been out of status for a year now so it is too late to file to remove conditions on her permanent residency as she is no longer a permanent resident. She is basically 'starting over' by applying to become a permanent resident again. They will probably have an interview as USCIS will want to know the details about why she failed to file the I-751, but if the AOS is approved, then she would receive a 10 year card because the marriage will be more than 2 years old when the green card is approved. It is definitely NOT the best approach - filing the I-751 was that - but it is a legal route to pursue.

[Brother Hesekiel 2,236]

The -- quite expensive -- attorney is playing it safe. Instead of filing the I-751 late and spending $545 on it, not knowing if it would fly (especially considering the cat-and-dog status of the marriage), the attorney is filing from scratch for $1,035 instead.

The advantage is obvious: married for 2 years already, the result would be in both cases a 10-year green card.

Assuming the attorney knows more details about the couple than we do, I'd say it's not a bad idea to go that route, especially since a second AOS, still married to the same USC spouse, is most likely a home run for the beneficiary.

[candelari 0]

yes I agree.... If USCIS doesn't buy the excuse the efford will cost them a lot more BUT I have not heard a case yet... Her lawyer is playing safe and doing the right thing... Seems like she can efford it (I am sure she is not so happy about it...) this is the best (not to mentioned fastest) way to go....

I would take the risk and submit I-751 with previous lawyer fee invoice , explanation letter etc... but still it wouldn't be as safer as filing for all over again...

Good luck to her...

[Kathryn41 3,205]

Actually re-filing the I-751 and getting it approved will bring you to exactly the same place as refiling the I-485, but there is a far greater likelihood of the I-485 being accepted than the I-751, especially as it is a year late. There is a grace period of about 60 days when filing the I-751 if there is a good reason that is accepted by the Immigration Officer reviewing the case, but after that the case usually goes into deportation transactions. The friend of the OP really does need to find out if there has been a deportation ruling made against her yet. If she hasn't moved then she should have received any such notices sent out by USCIS to appear at a deportation hearing. If there is no action yet taken against her then she should be fine filing the I-485 and it most likely would be approved.

[korat2michigan 0]

Thank you for all comments. Really appreciate that...I am sure she can feel more relaxing now.

Actually re-filing the I-751 and getting it approved will bring you to exactly the same place as refiling the I-485, but there is a far greater likelihood of the I-485 being accepted than the I-751, especially as it is a year late. There is a grace period of about 60 days when filing the I-751 if there is a good reason that is accepted by the Immigration Officer reviewing the case, but after that the case usually goes into deportation transactions. The friend of the OP really does need to find out if there has been a deportation ruling made against her yet. If she hasn't moved then she should have received any such notices sent out by USCIS to appear at a deportation hearing. If there is no action yet taken against her then she should be fine filing the I-485 and it most likely would be approved.

Kathryn41....Here's the only one mail she received since Feb 09...

Dear XXXXXX

Review of the records of the U.S.Citizenship and Immigrations Services reveals that you were adjusted of admitted to conditional resident status on November X,2006

In accordance with the provisions of section 216© of the Immigration and Nationality Act, you were required to file a petition requesting removal of the conditional basis of your residence during the 90 days period before the second anniversary of your lawful admission for permanent residence, between August 2,2008 and November 2,2008. As of this date, no such petition has been filed. Therefore, in accordance with the provisions of section 216 © (2)

(A) of the Immigration and Nationality Act, the permanent resident status previously accorded you is hereby terminated as of the second anniversary of your lawful admission for permanent residence. August 12,2003. All rights and privileges that you derived from that status, including the right to reside and work in the United States, are terminated concurrently.

In accordance with section 216 © (2) ( B ) of the Immigration Nationality Act, you may request review of this determination in removal proceedings. However, the burden of proof will be on you to establish compliance with the requirement to file the joint petition required by section 216 © of the Act. If you choose, an attorney or other individual authorized and qualified to represent persons before the U.S,Citizenship and Immigration Services may represent of you in such proceeding at no expense to the Government. Such counsel may assist in preparation of our request for review and hearing, and may examine the evidence upon which this determination is based. If you desire a review of this determination in a removal hearing, you should present any affidavits or other evidence that you desire to have considered at such hearing. If any document is in a foreign language, you should bring the original and certified translation thereof. If you wish to have testimony of witness considered at the hearing, you should arrange to have such witnesses present at the hearing,

Sincerely,

xxxxxx

File Office Director

[TracyTN 237]

I'm just surprised by the I 130/I 485 route. To me, that's the route to getting a green card initially. But when you already have one - one which has now expired - I guess I'm confused as to how this does anything for you. Then again, I'm sure a family based immigration attorney knows a lot more than I do, so...!

[thongd4me 69]

I'm just surprised by the I 130/I 485 route. To me, that's the route to getting a green card initially. But when you already have one - one which has now expired - I guess I'm confused as to how this does anything for you. Then again, I'm sure a family based immigration attorney knows a lot more than I do, so...!

The attorney may know a little about immigration procedures, but what he does best is extracting the shillings from the unwitting.

If two routes are equal and one will result in more billable hours, he'll take that route and not have to disclose that to the client.

The rates will also go up because it takes longer and assumed "level of difficulty" rattles the client.

[payxibka 10,047]

The problem I see is what possible "status" is the alien adjusting from? You have to have some sort of non-immigrant status. In my mind she has no status and most likely is in "removal"....

Edited December 3, 2009 by payxibka

[candelari 0]

I'm just surprised by the I 130/I 485 route. To me, that's the route to getting a green card initially. But when you already have one - one which has now expired - I guess I'm confused as to how this does anything for you. Then again, I'm sure a family based immigration attorney knows a lot more than I do, so...!

She doesn't have one anymore... she has an expired green card and she is an illegal alien in the country. she can try to re-activate the one she had before with I-751 which is little risky or she can file all over again. I don't see USCIS to deny I-751 because of fraud (it is obviously not). Even USCIS know if there is a denial on I-751 because of grace period she will file I-485 and get it anyway. I don't see any law stopping her getting a green card as long as there is no fraud involved...

[TracyTN 237]

The problem I see is what possible "status" is the alien adjusting from? You have to have some sort of non-immigrant status. In my mind she has no status and most likely is in "removal"....

That's the part I don't understand with this route.

[payxibka 10,047]

The problem I see is what possible "status" is the alien adjusting from? You have to have some sort of non-immigrant status. In my mind she has no status and most likely is in "removal"....

That's the part I don't understand with this route.

It makes no sense to me either.... she has no status for the new I-485 ... I think that route is doomed

Edited December 3, 2009 by payxibka