Missed AOS Interview

[Villanelle 4,122]

Here is something to help you with the motion to appeal- but its not promising-

The question posed is how do I file the motion to appeal- I missed my AOS interview

"Check "A".

At the top of your Brief Title it

" A MOTION TO REOPEN AND RECONSIDER APPEAL AND IN THE ALTERNATIVE APPEAL"

Then ask for them to reopen and reconsider based on the evidence you are giving them and in the alternative, to consider this an appeal."

The lawyer then goes on to say--

"Frankly, you really don't have any grounds for reopen for reconsideration and/or appeal and you are throwing your money away. You would have to explain in an attachment what your grounds are and your negligence will not reverse their decision.

I would advise you to refile both the I-130 and I-485 and not throw away the fees for the motion/appeal. You have to file seperately for each."

"You need to tell them legal grounds for them to reopen/appeal. That means legal reasons why they are wrong for making that decision. That is why you have to submit a brief and set out the legal issues and the law. There is no law that says you are entitled to reconsideration because you mixed up dates. That is not grounds for reversal of their decision based on the Immigration and Nationalty Act or regulations. Oops doesn't count."

She suggests going with 'appeal' and not 'reopen' because--

"I understand there is no combo box, but in practice attorneys who submit a brief always title it Motion to ReOpen and Reconsider and in the Alternative Appeal because it is one of our little secrets! That way we give the Service option to quickly decide in our favor if we present grounds to reverse rather than go throug the Appeal process that takes years."

The user then asks- can i say i didnt get notice or is there anything else i can do ? can i put a different reason why i missed appointment on form ? what reason would make them accept motion?

Her response- "A medical emergency, an emergency at work that you had no notice about and couldn't request a reschedule, death, auto accident; evidence that you moved, provided the new address to CIS and they failed to send an appointment notice to the correct address."

Them- thank you how can i say i didnt get notice in mail and back it up?

Her-"I have no idea, I can only tell you what the laws are which I have done.

I can't help you lie, it is against my professional responsibility ethics and violates the laws that govern my license. Your best bet is to just refile and do so before they begin removal proceedings based on the denials and unlawful presence now."

So it seems unlikely your motion will be approved unless you can show a strong reason why you missed it, as she detailed above. Since youd be filing 2 motions and it would cost you over 1k. I dont know if youd want to go that route.

You could always contact some immigration attorneys and ask if they think your motions would be successful? You could simply forget trying to file the motions and just re-apply. Either way. If you dont get a new appt through infopass you must re-apply because if you read the link I posted above, you will see, they are going to start deportation proceedings if you do not have an AOS application pending for your family. Its the only thing thats going to protect them. Once that deportation order is issued, your case just became immensely more complicated. Youre going to need a lawyer and its going to cost you serious money. I really dont know what would happen. I would speculate that your wife is going to be able to still file for AOS but there will be additional waivers involved and she may even have to leave the US and wait for her CR1.

[ValerieA 350]

I am no expert on this, but I don't see why the I-130 would need to be refiled. I would presume it is the I-485 denied, but the I-130 is just to confirm the US citizen and petitioner relationship is eligible for immigration. It should still be valid.

Good luck, OP. It is too bad this happened, but it is giving us a learning experience (silver lining and all that, although totally sucky for you still). Please keep us updated.

[mander1141 0]

Are you sure your wifes denial notice is dated the same date as her interview? Thats highly unusual...

Usually they give you an opportunity to reschedule. You have your interview. You dont show up. They dont typically send out the denial notice the same day. They dont know why you didnt show up. You couldve been in an accident. It couldve been a medical emergency. Maybe you or your spouse had a heart attack or went into a diabetic coma. They dont know. They typically give you 24-48 hours to call up or go to an infopass location to alert them to whats going on/ your reason for not showing to reschedule before they send out the denial letter.

So your son getting his denial letter for missing an appt on the 25th, dated the 28th, makes sense. Your wife getting a denial letter for missing an appt on the 25th, dated the 25th- does not. Especially when it was the same appt they missed. The denial letters should have been issued by the same person at the same time. Something is wrong with the whole thing...

Its kind of one of those things though that while its 'odd' it may not be of any help to you. You can use it in your argument of 'this wasnt fair, I didnt have an opportunity to reschedule' and try to appeal to the infopass employee, but like I said, I believe once the denial notice was issued, the infopass employee cant override it put you in a slot. Perhaps they can though. (fingers crossed they can)

I do believe you should take Darnells advice and go to infopass on Monday, appt or no appt. Bring your notice for the 15th. Use it to get pass the guards if you need to (depending on the security set-up they may require a notice to get in the building, sometimes they check them, sometimes they dont, if they say the dates not correct, just either play it off and say you were able to change the date to an earlier time online and you didnt print the new confirmation or plead with them to get in. Sometimes its just a general security check at the main entrance and you dont need to show anything to enter the building but an ID) Once youre in the actual infopass office, get online if you can. If theres a security guard there that you have to deal with- then plead with him to be able to get on the line. Just take it as it comes. Go as far as you can with out saying "Im not suppose to be here- I dont have an appt."

It doesnt matter whose A# you use to make the appt with. Its just a general reference number for infopass.

I thought that the speed and certainty of the denial was 'odd' as well. But our process to this point hasn't exactly been smooth-sailing, either. I needed to make some phone calls to State while we were at the Embassy stage, because NOTHING was happening (our application was clearly misplaced, though no-one would admit to it) and finally (months and months later), a request for a second NBI background -which aren't worth the paper they're printed on from a 'this person is fit to travel overseas' perspective. Which ended with an 'expedited' ('sheepish' might be a more accurate description)handling process after the NBI was submitted. I imagine all of that is noted in our file, Sooooo....

The last time I visited the Field Office (San Bernardino) we were literally one of two appointments there. I have a miniature 'Leatherman' type tool set that I keep on my key-ring, which security amused themselves with (jokingly) after allowing us to pass inside (I won't be bringing it with me this time!). I'm sure that getting in the front door won't be a significant problem. The problem might be the clerk inside, a 3rd Degree Blackbelt in the Art of Bureaucracy.

How can I get past her to speak with an IO, preferably the IO we had the original appointment with? Should I bring my wife and son (now age 14) with me and all of our papers? -This could be a rough ride, I'd hate to expose them to all of that.

Thanks,

-Mal.

[mander1141 0]

Capri,

Thank you very much for the information. I will think on it tonight (I'm getting '1000-yard stare' from being on the computer so much today) and work with it some more tomorrow. In my heart, I agree that a new I-485 is the way to go. And as you say, almost the equivalent price. Maybe the thing to do is show up with the family, eat a lot of crow and humble pie and hope for the best. If we get tossed out, show up on the 15th prepared to ask questions about re-filing.

Thanks again,

-Mal.

Edited February 3, 2013 by mander1141

[mander1141 0]

I thought that the speed and certainty of the denial was 'odd' as well. But our process to this point hasn't exactly been smooth-sailing, either. I needed to make some phone calls to State while we were at the Embassy stage, because NOTHING was happening (our application was clearly misplaced, though no-one would admit to it) and finally (months and months later), a request for a second NBI background -which aren't worth the paper they're printed on from a 'this person is fit to travel overseas' perspective. Which ended with an 'expedited' ('sheepish' might be a more accurate description)handling process after the NBI was submitted. I imagine all of that is noted in our file, Sooooo....

The last time I visited the Field Office (San Bernardino) we were literally one of two appointments there. I have a miniature 'Leatherman' type tool set that I keep on my key-ring, which security amused themselves with (jokingly) after allowing us to pass inside (I won't be bringing it with me this time!). I'm sure that getting in the front door won't be a significant problem. The problem might be the clerk inside, a 3rd Degree Blackbelt in the Art of Bureaucracy.

How can I get past her to speak with an IO, preferably the IO we had the original appointment with? Should I bring my wife and son (now age 14) with me and all of our papers? -This could be a rough ride, I'd hate to expose them to all of that.

Thanks,

-Mal.

As a bit of off-topic: I found a memo (2009) specifically addressing Failure to Appear if the Petitioner is in the military. Neuburger directed the centers to do an investigation before issuing any Denials and goes on to describe prescriptive remedies. Not that any of this should be surprising. However, he states in the preamble to his memo that they are doing all of this in an attempt to 'Standardize' the way that they do business. If so, might there be a policy in the works to create a similar process for civilians?

Edited February 3, 2013 by mander1141

[Harpa Timsah 13,258]

As a bit of off-topic: I found a memo (2009) specifically addressing Failure to Appear if the Petitioner is in the military. Neuburger directed the centers to do an investigation before issuing any Denials and goes on to describe prescriptive remedies. Not that any of this should be surprising. However, he states in the preamble to his memo that they are doing all of this in an attempt to 'Standardize' the way that they do business. If so, might there be a policy in the works to create a similar process for civilians?

No.

[Villanelle 4,122]

Mmm I dont know if its necessary to bring your wife and son with you. Chances are theyre not going to interview you on the spot.

I dont know if theyre going to let you speak to the Officer who you were suppose to have the interview with. I dont know if the Officer you were suppose to have the interview with is the one even responsible for the denial going out. Maybe they are, maybe theyre not.

I really dont know the inner workings of the office. Perhaps the system is set up in a way where the Officer clicked the wrong button when you didnt show up for the appt. Maybe he or she was suppose to click no show send denial in 48 hrs and they hit no show send denial instantly. Maybe theres no such button. Maybe they just hit no show and someone else in a completely different dept/office somewhere saw the no show and sent out the denial letter in error the same day way too quickly. Speaking to the Officer who reported you for a no show isnt going to do much in that case. They did what they were suppose to- they reported you for a no show.

Like I said, they cant make the computer do something its not set up to do. If they dont have the power to override it- they cant override it.

If it was a mistake made on the Officers part, you dont actually have to be the one to speak to her and point it out to her. The person in the window can do it. They can bring the denial letter in the back to the Officer and be like #######- this person had an interview on the 25th and their denial letter is dated the 25th, why did you do that. If its possible for them to override it in the computer and put you in an available interview slot, they will.

If its not, then they will tell you that they can not put you in a slot because they cant override the notice and they are sorry the notice went out the same day your interview was missed and you can file an motion to appeal because the notice to deny went out the same day you missed the interview and if you had a good reason for missing it, your motion will be approved.

[VanessaTony 3,567]

Are you sure your wifes denial notice is dated the same date as her interview? Thats highly unusual...

Usually they give you an opportunity to reschedule. You have your interview. You dont show up. They dont typically send out the denial notice the same day. They dont know why you didnt show up. You couldve been in an accident. It couldve been a medical emergency. Maybe you or your spouse had a heart attack or went into a diabetic coma. They dont know. They typically give you 24-48 hours to call up or go to an infopass location to alert them to whats going on/ your reason for not showing to reschedule before they send out the denial letter.

So your son getting his denial letter for missing an appt on the 25th, dated the 28th, makes sense. Your wife getting a denial letter for missing an appt on the 25th, dated the 25th- does not. Especially when it was the same appt they missed. The denial letters should have been issued by the same person at the same time. Something is wrong with the whole thing...

Its kind of one of those things though that while its 'odd' it may not be of any help to you. You can use it in your argument of 'this wasnt fair, I didnt have an opportunity to reschedule' and try to appeal to the infopass employee, but like I said, I believe once the denial notice was issued, the infopass employee cant override it put you in a slot. Perhaps they can though. (fingers crossed they can)

Denials are often sent same day. I've discussed this before in other threads when someone said "you're only a day or so late, call and reschedule" only for that poster to come back and say "they already denied me". There have been several posters who've missed their appointments and got the denials sent out same day, but there are others who don't get the denial the same day. It appears to be a "per office" thing. Some must audit at the end of the day, others may do it on a certain day of the week (depending on how busy the office is).

The child denial being a different day isn't unusual either as the child's case is tied to the mothers and it's likely they denied the mother first, which auto-denies the kid, or maybe they had to go back in.

They could call same day and reschedule, they can file MTR based on evidence of having been in an accident (or an infopass even) and that's why they missed the interview. But same-day denials are more common than you think. They want their money from the MTR. Their reason for not attending was looking at the notice wrong.

The OP didn't call USCIS until Monday and acknowledges he didn't even try and call on the day he realised. I would have certainly picked up the phone to TRY. Sent out and email or SOMETHING.

Their only chance is someone sympathetic because they did the right thing in denying it. I know mistakes happen but I would have checked that letter a half-dozen times the same day i got it then put the date on my calendar in red marker. It's not a "just glace at it" date, it's a look at it, check the calendar for what day that is, look at the date again, look at it a week before your appointment etc. It was a foolish mistake and the only positive thing is at least she's here on the k1 and CAN appeal (VWP isn't so lucky). It's an expensive lesson for sure!

Should I bring my wife and son (now age 14) with me and all of our papers? -This could be a rough ride, I'd hate to expose them to all of that.

You wife MUST attend. It is HER infopass. Not yours. I would also bring your step-son, if there's even the smallest chance to interview you then and there I'd make yourselves available for it. If it turns out not to be a good experience you could ask the officer to let your step-son step out of the office so he isn't exposed to that.

Again, you are simply the sponsor, your wife is the Applicant. the AOS is HER process. This is HER infopass so she MUST attend. They will not see you by yourself, and hopefully they let you attend with her.

Edited February 3, 2013 by Vanessa&Tony

[VanessaTony 3,567]

Mmm I dont know if its necessary to bring your wife and son with you. Chances are theyre not going to interview you on the spot.

The AOS application is the immigrant's application. They should not have even taken his call to reschedule the appointment as this is HER process and he is just the sponsor. She MUST attend HER infopass appointment.

[mander1141 0]

Denials are often sent same day. I've discussed this before in other threads when someone said "you're only a day or so late, call and reschedule" only for that poster to come back and say "they already denied me". There have been several posters who've missed their appointments and got the denials sent out same day, but there are others who don't get the denial the same day. It appears to be a "per office" thing. Some must audit at the end of the day, others may do it on a certain day of the week (depending on how busy the office is).

The child denial being a different day isn't unusual either as the child's case is tied to the mothers and it's likely they denied the mother first, which auto-denies the kid, or maybe they had to go back in.

They could call same day and reschedule, they can file MTR based on evidence of having been in an accident (or an infopass even) and that's why they missed the interview. But same-day denials are more common than you think. They want their money from the MTR. Their reason for not attending was looking at the notice wrong.

Agreed. After reading and rereading a lot of stuff here and elsewhere, I see that I won't get any sort of traction (or make any new friends) trying to go down that road. Do I file a MTR? I'm thinking at this point it's time to move on and refile the I-485, if it's right and proper to do so?

The OP didn't call USCIS until Monday and acknowledges he didn't even try and call on the day he realised. I would have certainly picked up the phone to TRY. Sent out and email or SOMETHING.

Their only chance is someone sympathetic because they did the right thing in denying it. I know mistakes happen but I would have checked that letter a half-dozen times the same day i got it then put the date on my calendar in red marker. It's not a "just glace at it" date, it's a look at it, check the calendar for what day that is, look at the date again, look at it a week before your appointment etc. It was a foolish mistake and the only positive thing is at least she's here on the k1 and CAN appeal (VWP isn't so lucky). It's an expensive lesson for sure!

Yes. I did attempt to call the number at the bottom of the form as soon as I realized what had happened at about 2:00 am on Sunday morning. I was hoping for a 24 hour answering service or voicemail. There was none; so 8am Monday morning was the soonest I could respond. Bottom line: We were negligent. There is no argument there. Woulda', Coulda', Shoulda', we didn't; and that's why we're in this mess.

You wife MUST attend. It is HER infopass. Not yours. I would also bring your step-son, if there's even the smallest chance to interview you then and there I'd make yourselves available for it. If it turns out not to be a good experience you could ask the officer to let your step-son step out of the office so he isn't exposed to that.

Again, you are simply the sponsor, your wife is the Applicant. the AOS is HER process. This is HER infopass so she MUST attend. They will not see you by yourself, and hopefully they let you attend with her.

Tomorrow I/We will have no InfoPass. As you and others have suggested, I will try to brass my way in and hope to find someone sympathetic who (despite doing the right thing in denying our application) has the authority to grant my wife and son another appointment. We have an InfoPass for the 15th of the month, the earliest available appointment on the system. Other than USCIS customer service, I haven't been able to speak with any humans.

Continuing questions:

1) May we refile our I-485?

2) Failing the 'Pity us' approach at the Field Office tomorrow, and as we have no compelling reasons for filing a MTR, should we bother with the time and expense of doing so?

Thanks,

-Mal.

[mander1141 0]

It was a foolish mistake and the only positive thing is at least she's here on the k1 and CAN appeal (VWP isn't so lucky). It's an expensive lesson for sure!

For clarity, can we refile? -My wife's K-1 expired in September. Yes, refiling an I-485 is expensive, but given all the natural consequences as a result of what has occurred, an accepted I-485 and new interview date looks VERY ATTRACTIVE to me at this point!

Thanks,

-Mal.

Edited February 3, 2013 by mander1141

[VanessaTony 3,567]

For clarity, can we refile? -My wife's K-1 expired in September. Yes, refiling an I-485 is expensive, but given all the natural consequences as a result of what has occurred, an accepted I-485 and new interview date looks VERY ATTRACTIVE to me at this point!

Her K1 petition is still valid and that's what she's applying to adjust status based off of so you would just need to re-file the I-485's (as well as doing new medicals).

Her K1 VISA actually expired the second she used it. The date on it was the date she had to enter the US by or she couldn't use the visa to enter, but as soon as she used it it was void.

There shouldn't be anything preventing you from re-submitting the I-485. Worst case scenario (if they don't just overturn the denial and let you proceed with interview) is you need to re-file the I-485. She doesn't need to leave the US, neither does your step-son. They do NOT need to leave.

Also, her EAD and AP are no longer valid. If you end up re-applying then I would not allow her to leave the US without the GC. I wouldn't want to risk USCIS being sh*ts about letting her back in.

[mander1141 0]

Her K1 petition is still valid and that's what she's applying to adjust status based off of so you would just need to re-file the I-485's (as well as doing new medicals).

Her K1 VISA actually expired the second she used it. The date on it was the date she had to enter the US by or she couldn't use the visa to enter, but as soon as she used it it was void.

There shouldn't be anything preventing you from re-submitting the I-485. Worst case scenario (if they don't just overturn the denial and let you proceed with interview) is you need to re-file the I-485. She doesn't need to leave the US, neither does your step-son. They do NOT need to leave.

Also, her EAD and AP are no longer valid. If you end up re-applying then I would not allow her to leave the US without the GC. I wouldn't want to risk USCIS being sh*ts about letting her back in.

Okay, good to know. Thank You for this. I think I have the proper mind-set for tomorrow and the path to follow (If not A, then B).

[Villanelle 4,122]

You wife MUST attend. It is HER infopass. Not yours. I would also bring your step-son, if there's even the smallest chance to interview you then and there I'd make yourselves available for it. If it turns out not to be a good experience you could ask the officer to let your step-son step out of the office so he isn't exposed to that.

Again, you are simply the sponsor, your wife is the Applicant. the AOS is HER process. This is HER infopass so she MUST attend. They will not see you by yourself, and hopefully they let you attend with her.

Oh my goodness. Sometimes I think that my posts should be filtered automatically through Vanessa first because I too often post stupid things and she has to correct me.

I got caught up with the whole, him calling, him rescheduling, him missing the interview, him filing motions, and totally forgot that this is not his AOS, but his wifes. Yes, the wife must go. Even when he calls, before they talk to him, they make his wife get on the phone first and verify her info before discussing anything about the case. Its going to be the same at the infopass. She has to be there. Theyll talk to him. But she has to be there and say its ok for them to speak to him or for him to speak on her behalf.

I think Vanessas post was very informative but may not be encouraging for the OPs situation. If a lot of people are denied the same day they are no-shows and are required to submit MTR to get a new interview because they want the MTR fee then going to infopass and asking for a new interview isnt going to do anything (they denied them the same day to get the MTR fee) And the OP probably doesnt have a valid MTR case. A valid MTR case would be specific circumstances that caused him to miss it. So hes going to have to refile. The question is how. I do agree hes probably eligible to refile based on the K1 (submit the 485 with the approval 797) and not have to file a new 130 and 485. But I would verify that with infopass. Because I dont know where to look to see if theres anything that says if a case was denied the 797 you had for the 129f is no longer valid. You know what Im saying? How many times can you attempt to adjust on that approval notice? If you can do it more then once because your first attempt was denied then great. If you cant, then you need to file the 130 with the 485.

[VanessaTony 3,567]

Oh my goodness. Sometimes I think that my posts should be filtered automatically through Vanessa first because I too often post stupid things and she has to correct me.

I got caught up with the whole, him calling, him rescheduling, him missing the interview, him filing motions, and totally forgot that this is not his AOS, but his wifes. Yes, the wife must go. Even when he calls, before they talk to him, they make his wife get on the phone first and verify her info before discussing anything about the case. Its going to be the same at the infopass. She has to be there. Theyll talk to him. But she has to be there and say its ok for them to speak to him or for him to speak on her behalf.

I think Vanessas post was very informative but may not be encouraging for the OPs situation. If a lot of people are denied the same day they are no-shows and are required to submit MTR to get a new interview because they want the MTR fee then going to infopass and asking for a new interview isnt going to do anything (they denied them the same day to get the MTR fee) And the OP probably doesnt have a valid MTR case. A valid MTR case would be specific circumstances that caused him to miss it. So hes going to have to refile. The question is how. I do agree hes probably eligible to refile based on the K1 (submit the 485 with the approval 797) and not have to file a new 130 and 485. But I would verify that with infopass. Because I dont know where to look to see if theres anything that says if a case was denied the 797 you had for the 129f is no longer valid. You know what Im saying? How many times can you attempt to adjust on that approval notice? If you can do it more then once because your first attempt was denied then great. If you cant, then you need to file the 130 with the 485.

You'll notice my post was edited and that's 'cause as soon as i hit send on "yeah take them with you" I realised i was an idiot We all make mistakes and lately I seem to do them a lot!

I definitely think he needs to make an infopass because maybe he sees someone sympathetic... at the very least he knows he crossed that off his checklist.

I was just reading online that filing an MTR does not give them legal status so they recommend re-filing the i-485 (still based on the K1) to ensure their status is safe.