2nd I-131 denied before biometrics

[lee b 2]

I guess I should explain our situation as best I can. My wife and I filed for the change of status in February of 2011 along with a work permit and travel documents. We got those no problem. Our interview did not go well and we were told that we would need a second interview. That was in May of 2011. Nothing has happened for almost a year. My wife and daughter's travel documents were set to expire so we reapplied in January of this year so that they could return to Russia for the summer, they have not adjusted to the ridiculous Florida heat. We had our biometrics and everything was fine we thought. On June 1 we got a notice saying that both of the girls I-485 had been transferred to VSC for faster processing. Than yesterday I got an e-mail stating that our application for an I-131 was denied and a letter would be coming to document the reasons as well as our options for appealling the decision. Has anybody ever had anything like this happen? What will happen if my wife and daughter are out of the country and they can not get back into the US? Will we have to start over? Sorry for such a long post, but this process has taken such a long time and I am not even sure if I am posting this in the right forum. Any help or advice would be greatly appreciated.

[lee b 2]

I guess I should explain our situation as best I can. My wife and I filed for the change of status in February of 2011 along with a work permit and travel documents. We got those no problem. Our interview did not go well and we were told that we would need a second interview. That was in May of 2011. Nothing has happened for almost a year. My wife and daughter's travel documents were set to expire so we reapplied in January of this year so that they could return to Russia for the summer, they have not adjusted to the ridiculous Florida heat. We had our biometrics and everything was fine we thought. On June 1 we got a notice saying that both of the girls I-485 had been transferred to VSC for faster processing. We also got a notice stating that my wifes I-131 was being transferred. We got another notice to do biometrics for the second time in July. Than yesterday I got an e-mail stating that our application for the I-131 was denied and a letter would be coming to document the reasons as well as our options for appealling the decision. Has anybody ever had anything like this happen? What will happen if my wife and daughter are out of the country and they can not get back into the US? Will we have to start over? Does this affect the status of our I-485's? Sorry for such a long post, but this process has taken such a long time and I am not even sure if I am posting this in the right forum. Any help or advice would be greatly appreciated.

[Harpa Timsah 13,258]

Did they already leave the country before the replacement AP was approved?

[Penny Lane 8,159]

So, when you learned you'd need a second interview, what happened? They didn't assign you one? Did you ever call and inquire as to when you could have a second interview done? I'm curious what happened between the "you need a second interview", which was in May of last year and January of 2012 when you reapplied.

[lee b 2]

We called repeatedly and even had an infopass appointment. All of which was fruitless and we were told to wait. We hired an attorney after about 10 months of waiting and he has also told us to wait.

Yes they left before the AP was approved. Yes we know it was stupid to have done so. However, we had applied for the second i-131 in January and just assumed that since she did the biometrics in March that we were well on our way. She left on June 1st and that same day was when we got the transfer notices about the I-485. The next day we got the notice that i-131 was being transferred. We got a notice for a second biometrics appointment after that. I did go to ASC since I only a few minutes away and talked to someone their who looked it up on the computer and he said that we would not need to show up for it. (I did not tell him that my wife had already left the country.)

[Harpa Timsah 13,258]

We called repeatedly and even had an infopass appointment. All of which was fruitless and we were told to wait. We hired an attorney after about 10 months of waiting and he has also told us to wait.

Yes they left before the AP was approved. Yes we know it was stupid to have done so. However, we had applied for the second i-131 in January and just assumed that since she did the biometrics in March that we were well on our way. She left on June 1st and that same day was when we got the transfer notices about the I-485. The next day we got the notice that i-131 was being transferred. We got a notice for a second biometrics appointment after that. I did go to ASC since I only a few minutes away and talked to someone their who looked it up on the computer and he said that we would not need to show up for it. (I did not tell him that my wife had already left the country.)

Okayyy.... The way I am reading it is that their old AP was expired already when they left, and you were in the process of asking for a new one.

The AP was denied BECAUSE they left. They left without a valid AP, so their whole I-485 application was rendered ABANDONED. When USCIS went to approve the AP, they checked departure records and saw they left, so they denied the whole thing. You will have to start over with a spousal visa.

Edited June 19, 2012 by Harpa Timsah

[lee b 2]

Even though we are married and had our pending I-485? I find it hard to believe that the government is that efficient as to deny our application in less than three weeks from the day they left. They notified us of the transfers on the same day they left. That would require quite a bit of foresight on the governments part to do it that efficiently.

If that is the case will we have to file a k-3 since we have been married since 2010? They have only denied the i-131, the i-485's haven't been denied. Do I just wait and see what happens.

[Harpa Timsah 13,258]

If you leave the US while I-485 is pending without Advance Parole approved and in your hands, then your I-485 will be deemed ABANDONED. Your being married has nothing to do with it. I believe this is spelled out quite clearly in the I-485 instructions, or at least on the USCIS website. USCIS is not efficient nor do they have any foresight, but I suspect they were about to approve the APs, but they have to check some things first, and when they checked their central flight manifest database, they saw your wife left the US. Therefore, the reason for approving an AP no longer exists. I suspect your I-485 will be denied soon as well. In fact, it doesn't matter what your applications say at all, the fact of the matter is she left without an approved AP so her I-485 is abandoned, by law. The case updating might be slow, but it will happen.

You will have to start over with a spousal visa. K-3 no longer exists, so you'll be chasing a IR-1.

[lee b 2]

Thank you for the information. Is there any sort of appeal process? It seems so overwhelming to think that we will have to start the whole process again.

[Harpa Timsah 13,258]

On page 10 of the I-485 instructions, it reads with a heading in extra giant font,

You do not qualify for the three exceptions listed, and your AP was not obtained before departing the US.

No, there is no appeal... Sorry. All you can do is file a I-130 today.

[Penny Lane 8,159]

What is there to appeal? Your wife willingly left with the child, knowing they did not have a valid AP to return on.

Instructions are given on the forms themselves and from USCIS and they were unfortunately ignored.

[lee b 2]

Thanks everyone for the information. We screwed up and now we will start over. I have one question about the CR-1, should I wait until the actual denial letters come or should I send it now?

[Harpa Timsah 13,258]

I am not sure if there is a reason to wait for an official denial letter before sending off an I-130. I would ask in the CR-1/IR-1 forum. Good luck.

[NY_BX 397]

We called repeatedly and even had an infopass appointment. All of which was fruitless and we were told to wait. We hired an attorney after about 10 months of waiting and he has also told us to wait.

Yes they left before the AP was approved. Yes we know it was stupid to have done so. However, we had applied for the second i-131 in January and just assumed that since she did the biometrics in March that we were well on our way. She left on June 1st and that same day was when we got the transfer notices about the I-485. The next day we got the notice that i-131 was being transferred. We got a notice for a second biometrics appointment after that. I did go to ASC since I only a few minutes away and talked to someone their who looked it up on the computer and he said that we would not need to show up for it. (I did not tell him that my wife had already left the country.)

All I have to say is, it is tragic that they left mere days- if not hours- before the AP was approved. I don't mean to put salt in the wound, but this is why we all must have patience- and be well prepared/ educated- with this whole process. Frankly, all you needed to do is something very simple: wait.

I am curious to know, why the first interview didn't go well?

Edited June 19, 2012 by NY_BX

[lee b 2]

My wifes english is good, but you have to speak slowly sometimes and we didn't bring an interpreter with us. My Russian is basic at best and at the time of our interview my wifes English was deemed insufficient and we were told that we would need to bring an interpreter for a second interview. At that point we were just lost in the bureacratic black hole that USCIS can be. It is a lesson learned albeit an extremely painful one. I am not one to look back and we will now start on the CR-1 application.