Denied GC = 3/10 year ban?

[siig 0]

Regardless of whether or not an applicant is successful in the ROC app, will a denial of a GC mean deportation AND a 3/10 year bar on re-entry? Isn't that ban for illegal aliens who were here unlawfully? Wouldn't the applicant simply revert to a foreign national with visitors/tourist visa rights again? I can't imagine her being BANNED simply b/c we got divorced and couldn't get the GC finalized...

[belinda63 3,047]

I assume you are referring to someone who already has a two-year green card and is applying to remove conditions since this is where you posted. If the application to remove conditions is denied the person is given a certain amount of time, usually thirty days, to leave the country. They will not incur a ban if they leave by the time stated.

[NigeriaorBust 4,087]

Are you asking about someone had a 2 year green card, DIDN'T file for ROC in a timely manner and when they did the filing is denied

[siig 0]

Belinda yes that is correct. Thank you for helping me out here.

Are you asking about someone had a 2 year green card, DIDN'T file for ROC in a timely manner and when they did the filing is denied

Right. I am hearing that the ROC cannot be applied for until the divorce is totally final, is that true? So if she does not apply in time (waiting for divorce paperwork to finalize), they will punish her with a deportation & ban?

What if she has already been out of the country the past 3 months?

[Harpa Timsah 13,258]

ROC must be filed in a timely manner and if the divorce decree is not available, USCIS will issue an RFE until the decree can be given. There is no excuse for not filing.

[siig 0]

ROC must be filed in a timely manner and if the divorce decree is not available, USCIS will issue an RFE until the decree can be given. There is no excuse for not filing.

Aha. Thank you very much.

So, if the GC is denied will the applicant be reverted to a visitor/tourist if they want to come back, or will it be some sort of bad mark on their record?

[Harpa Timsah 13,258]

The applicant will get a set amount of time to leave, than they can apply separately for a tourist visa if that is their wish. There is no automatic reversion. Are you from a VWP country? Why do you thing the norm is a visitor status? Usually foreign nationals have no status in the US at all.

As to bad mark, depends on the reason for denial. Denial due to fraud, then yes, bad mark.

[siig 0]

The applicant will get a set amount of time to leave, than they can apply separately for a tourist visa if that is their wish. There is no automatic reversion. Are you from a VWP country? Why do you thing the norm is a visitor status? Usually foreign nationals have no status in the US at all.

As to bad mark, depends on the reason for denial. Denial due to fraud, then yes, bad mark.

Okay. Yes she's from Australia so a VWP country, that's right I forgot about that. So if we divorce & she loses all interest in the GC, and doesn't file for ROC, she'll get in trouble? They'll just assume fraud, instead of just her lost interest in the GC that was only sought after in the first place to make a life w/ her husband, who is now gone? She is already home in Australia, I assume it is 100% certain she'll have an in-person interview in the States so will have to return for that? You cannot file thru the mail & await the decision overseas?

[Harpa Timsah 13,258]

If she wants to live in Aus then she should formally relinquish her GC at the consulate. I never said anyone would assume fraud, but it is exceedingly rare to have ROC denied. If she just forgets about it then she can be denied for abandonment and put into removal proceedings in absentia (sometimes they don't realize the person has left the country). She can avoid that by relinquishing her GC formally. No problem.

It's her GC, so if you are divorcing, I would let her worry about it.

Edited January 15, 2013 by Harpa Timsah

[NikLR 13,232]

It's her GC, so if you are divorcing, I would let her worry about it.

Not everyone is so callous about a person they are divorcing. At one point I hope you loved the person you married and want the best for them in the future even if that future is not with you.

OP:

On the USCIS website:

If You Are In Divorce Proceedings But Are Not Yet Divorced

If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:

• You filed a waiver request. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable).
  

• You filed a Form I-751 petition jointly. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.

Upon receipt of the final divorce decree or annulment within the specified time period, we will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.

http://www.uscis.gov...000082ca60aRCRD

She has to file before the 90 days are up to Remove Conditions. But there is a section that deals with filing late as well:

If You Are Late In Applying To Remove The Conditions On Residence

If you fail to properly file Form I-751 within the 90-day period before your second anniversary as a conditional resident:

• Your conditional resident status will automatically be terminated and we will begin removal proceedings against you
  

• You will receive a notice from us telling you that you have failed to remove the conditions
  

• You will receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements (we are not responsible for proving that you did not comply with the requirements)

The Form I-751 can be filed after the 90-day period if you can prove in writing to the director of the appropriate Service Center that there was good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status.

However she should decide if she is wanting to live in the USA or Austrailia. If she's already gone home then I'm not sure why she would want to remove conditions, but you guys can figure it out I'm sure.

Edited January 15, 2013 by NikiR

[Harpa Timsah 13,258]

It's not callousness, it is just a division of responsibilities. He cannot know what she is doing or her intentions, so the thread is going a bit in circles because you can't solve a problem without complete information. What a ridiculous insinuation to make.

[bigdog 376]

If she went to home for a time out to get away and files for ROC like she should their will be no issues. Just because you get divorced does not mean its fraud. You can't have conjecture and make a decision, I agree with HT. I think it would be wrong no matter what not to give her good advice to straighten out the ROC.

[NikLR 13,232]

The thread goes in circles because of misunderstandings by the OP. While I agree with you that if the person with the green card wants to remove the conditions should be doing their own work to figure out how to do it. However, I also do not think there is anything wrong with their ex spouse asking questions or helping. He certainly can know her intentions if he has asked. I hope they both figure out where they are in the process and do whatever they need to to move forward in the direction they choose. Hopefully some of the information provided proves beneficial to them.

Btw, you're the one who made the comment. So isn't it interesting to see how someone else reacts or interprets it? Sometimes that alone makes us think twice about our wording. On the internet, everything can be interpreted differently than how you meant it.

[VanessaTony 3,567]

Okay. Yes she's from Australia so a VWP country, that's right I forgot about that. So if we divorce & she loses all interest in the GC, and doesn't file for ROC, she'll get in trouble? They'll just assume fraud, instead of just her lost interest in the GC that was only sought after in the first place to make a life w/ her husband, who is now gone? She is already home in Australia, I assume it is 100% certain she'll have an in-person interview in the States so will have to return for that? You cannot file thru the mail & await the decision overseas?

No she won't get "in trouble" per se. Her GC will simply be revoked. The issue arises if they don't think she's left the country they can start removal proceedings and if she ever tries to visit she'll be denied because of that BUT then she'd prove she'd been living in Australia since X and have it all removed from the system as a screw up on their part.

Also, there is no guarantee she'll get an interview. She can be approved without interview even with a divorce waiver. Depends on her situation.

In my personal opinion it is in your best interest to shoot her an email or something (depending on how good terms you're on) and remind her that she needs to give up her GC at the embassy if she's never coming back so she can return as a visitor (or on the VWP) if she likes. This will also cancel the I-864 that you signed which is good for you. If she doesn't want to give up her GC that's up to her of course. If you don't know whether she's given it up, or abandoned it, you must assume the I-864 is still in force.

[Harsh_77 718]

HT is correct, if your ex wife is already in Australia then just she does not need to file for ROC, just return the GC to the consulate in Australia.

Whenever next time she wants to travel either she can do the ESTA or apply for tourist visa.