USCIS says they haven't received our application...

[Gary and Alla 3,694]

You don't get an RFE for being ineligible to marry.

You get a denial.

Yes you do, after you cannot produce the documents requested in an RFE.

As far as an adjudicator knows the document is missing. Even if mentioned in a cover letter they have an obligation to provide the petitioner the opportunity to. There is a procedure. USCIS has to follow the procedure to cover their @ss. If they deny based on a missing document or based on a cover letter, without the necessary documentation being requested, they could be liable from trouble for not following the law. The law specifies what they MUST do. If a needed document is missing, they MUST issue an RFE. If the RFE is not responded to satisfactorily, then they can deny, using the lack of response to the RFE as the reason for denial.

In this case, they WILL deny the peition, eventually, unless the petitioner withdraws it first.

[Rebecca Jo 1,962]

Yes you do, after you cannot produce the documents requested in an RFE.

As far as an adjudicator knows the document is missing. Even if mentioned in a cover letter they have an obligation to provide the petitioner the opportunity to. There is a procedure. USCIS has to follow the procedure to cover their @ss. If they deny based on a missing document or based on a cover letter, without the necessary documentation being requested, they could be liable from trouble for not following the law. The law specifies what they MUST do. If a needed document is missing, they MUST issue an RFE. If the RFE is not responded to satisfactorily, then they can deny, using the lack of response to the RFE as the reason for denial.

In this case, they WILL deny the peition, eventually, unless the petitioner withdraws it first.

Gary, the procedure in this case would be an outright denial of the petition. The petitioner and beneficiary did not meet one of the crucial requirements for filing. The requirements are CLEAR that one must be free to marry BEFORE the filing date.

It is not necessary to issue an RFE in order to deny a petition.

[Rebecca Jo 1,962]

Gary, the procedure in this case would be an outright denial of the petition. The petitioner and beneficiary did not meet one of the crucial requirements for filing. The requirements are CLEAR that one must be free to marry BEFORE the filing date.

It is not necessary to issue an RFE in order to deny a petition.

In the extant case, I'm going to presume the G-325a contains all the information the AO needs to deny the case.

Sorry, $hitty internet connection.

Edited May 16, 2010 by JohnnyQuest

[JimVaPhuong 4,863]

It's possible USCIS won't even know there was a divorce pending when the application was submitted. It depends entirely on what the submitted forms say. If a current spouse was listed on the beneficiary's G-325A then they'll probably issue an RFE for a clarification of the marital status of the beneficiary. If an ex-spouse was listed, they'll issue an RFE for a copy of the divorce decree. If NO spouse, current or ex, was listed, then they might approve the petition.

I don't see any scenario where USCIS would know for certain that the beneficiary was still married, and had a divorce pending, unless this was explicitly explained somewhere in the petition package. Barring that circumstance, an outright denial without an RFE is not likely.

[Rebecca Jo 1,962]

It's possible USCIS won't even know there was a divorce pending when the application was submitted. It depends entirely on what the submitted forms say. If a current spouse was listed on the beneficiary's G-325A then they'll probably issue an RFE for a clarification of the marital status of the beneficiary. If an ex-spouse was listed, they'll issue an RFE for a copy of the divorce decree. If NO spouse, current or ex, was listed, then they might approve the petition.

I don't see any scenario where USCIS would know for certain that the beneficiary was still married, and had a divorce pending, unless this was explicitly explained somewhere in the petition package. Barring that circumstance, an outright denial without an RFE is not likely.

The G-235a asks for the termination date of any prior marriages.

[VanessaTony 3,567]

The G-235a asks for the termination date of any prior marriages.

Not to mention she apparently explained the fact she wasn't divorced yet in the cover letter. Maybe they would send a NOID? (honestly don't know enough about NOID's though...)

Edited May 16, 2010 by Vanessa&Tony

[Gary and Alla 3,694]

The G-235a asks for the termination date of any prior marriages.

Johnny Quest, stop being ignorant. You are wrong. Get over it. USCIS does NOT deny petitions because of errors in filling out forms. They send RFEs to clarify. Period. If the date of divorce is not listed they will NOT assume there was no divorce, they will assume a mistake was made and ask for a clarification and any missing documents. They MUST. When they determine and DOCUMENT at the level they need to document to cover their @ss, THEN and only then, they will deny the petition.

The OP stated the cover letter explains the situation, however USCIS cannot deny (or approve) based on a cover letter. There is no provision in the legislation to do so and any denial must be made pursuant to the legislation

[JimVaPhuong 4,863]

Not to mention she apparently explained the fact she wasn't divorced yet in the cover letter. Maybe they would send a NOID? (honestly don't know enough about NOID's though...)

Ooops! I missed that.

Yep, it will probably be denied outright. Apologies to JQ.

[Rebecca Jo 1,962]

Johnny Quest, stop being ignorant. You are wrong. Get over it. USCIS does NOT deny petitions because of errors in filling out forms. They send RFEs to clarify. Period. If the date of divorce is not listed they will NOT assume there was no divorce, they will assume a mistake was made and ask for a clarification and any missing documents. They MUST. When they determine and DOCUMENT at the level they need to document to cover their @ss, THEN and only then, they will deny the petition.

The OP stated the cover letter explains the situation, however USCIS cannot deny (or approve) based on a cover letter. There is no provision in the legislation to do so and any denial must be made pursuant to the legislation

Gary, please stop being impolite.

As the OP states they were honest enough to provide a cover letter explaining their situation, I'm presuming they were honest enough to answer the queries of "current husband or wife" and "former husbands or wives" in an equally honest manner.

In such case, the AO could deny the petition outright without worrying about "covering their @ss" with an RFE, as the necessary details for denial are already in place.

[Gary and Alla 3,694]

Ooops! I missed that.

Yep, it will probably be denied outright. Apologies to JQ.

No, you were right the first time, Jim. Cover letters, not required, are not part of the package and cannot be used as a means to deny. The petition can only be denied in accordance with the statute. There is no section or paragraph which says "your case is denied based on your cover letter which states you are not eligible"

the peition will appear to be ineligible, USCIS will issue an RFE to clarify that it is ineliglble. When the OP fails to respond or responds with somthing other than needed, the petition will be denied. The denial awill state the reason and state the fact the petitioner was given XX days to respond to a request and did not so satisfactorily.

If anyone disagrees with this, then I am sure they will have no problem citing some cases denied on cover letters

Gary, please stop being impolite.

As the OP states they were honest enough to provide a cover letter explaining their situation, I'm presuming they were honest enough to answer the queries of "current husband or wife" and "former husbands or wives" in an equally honest manner.

In such case, the AO could deny the petition outright without worrying about "covering their @ss" with an RFE, as the necessary details for denial are already in place.

No doubt you have information on cases denied based on cover letters?

[Rebecca Jo 1,962]

No doubt you have information on cases denied based on cover letters?

I never mentioned a denial based upon a cover letter.

[Gary and Alla 3,694]

Gary, please stop being impolite.

As the OP states they were honest enough to provide a cover letter explaining their situation, I'm presuming they were honest enough to answer the queries of "current husband or wife" and "former husbands or wives" in an equally honest manner.

In such case, the AO could deny the petition outright without worrying about "covering their @ss" with an RFE, as the necessary details for denial are already in place.

Stating facts is not being impolite, whether you like it or not.

The OP would be advised to withdraw their petiton as soon as possible to reduce the hemmorgaing from their mistakes and stop shooting themselves in both feet. Time to put the gun down and stop shooting.

Prepare a new petition and a certified letter to USCIS. As soon as the petition gets directed to the proper place and the OP gets their NOA1 and case number, they can send off the withdrawl letter and then the new petition. They have lost nothing but the $455. Education is expensive.

I never mentioned a denial based upon a cover letter.

Then, pray tell, on WHAT basis would they deny? An improperly filled out form? Are you serious?

[ScratchIt 12]

With any luck he got a money order for $445 and the whole thing gets kicked back anyway!

[Rebecca Jo 1,962]

Stating facts is not being impolite, whether you like it or not.

The OP would be advised to withdraw their petiton as soon as possible to reduce the hemmorgaing from their mistakes and stop shooting themselves in both feet. Time to put the gun down and stop shooting.

Prepare a new petition and a certified letter to USCIS. As soon as the petition gets directed to the proper place and the OP gets their NOA1 and case number, they can send off the withdrawl letter and then the new petition. They have lost nothing but the $455. Education is expensive.

Stating facts isn't the same as telling someone they are "ignorant", "wrong", and "get over it".

I could now at this point go whining to the moderators about your behavior, but it's quite unnecessary. You're doing a lovely job of proving yourself to be less than a gentleman, all by yourself.

Then, pray tell, on WHAT basis would they deny? An improperly filled out form? Are you serious?

Answering the questions on the form truthfully is not an "improper" filing.

[Gary and Alla 3,694]

Stating facts isn't the same as telling someone they are "ignorant", "wrong", and "get over it".

I could now at this point go whining to the moderators about your behavior, but it's quite unnecessary. You're doing a lovely job of proving yourself to be less than a gentleman, all by yourself.

Answering the questions on the form truthfully is not an "improper" filing.

USCIS must assume the information was omitted unintentionally. You will never see a denial stated because a person did not fill out information on the form. EVER. If this were EVER the case, there would NEVER be a reason for an RFE. ALL RFEs are to request missing or improper information. An adjudicator has NO WAY to determine if a person is answering truthfully or forgot to fill something out. Adjudicators are not allowed to make this judgement. Anyone denying a case on this basis would be in for a world of trouble with the office of the inspector general.

If the information provided in the initial review does not meet the qualifications, the adjudicator MUST allow the petitioner the opportunity to correct or provide the information and YES they most definitely worry about "covering their @ss"

Again, people with differing opinions can offer some cases which have been denied without RFE. Please do so.