Missed AOS Interview

[mander1141 0]

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.

Hi Again Capri and Vanessa,

I'm feeling really dense, because you both keep mentioning 'Making an InfoPass' and I keep saying I have an InfoPass appointment for February 15th, but am going to try brass my way into the USCIS Field Office in San Bernardino tomorrow morning without an appointment. Are we talking past each other, or is there another type/location of InfoPass that I'm not aware of? Should I not try to go into the Field Office tomorrow AM?

Thanks and sorry for the confusion!

-Mal

[Darnell 8,479]

i say take all of the appointment letters, your wife and her child,

and go in on Monday. Don't get caught up on concept of 'we are coming in for infopass' at all.

Stick with the concept of 'we missed the appointment, please have pity on us'

as

the casefiles are most likely still there.

it's THEIR interviews, not yours.

Be prepared, just in case the IO does take pity on you and acquiesces to an interview on the spot.

IMO - that's what you want - an interview on the spot, for the two of them.

[Mogambi 96]

So why couldn't they just refile the I-485? She's out of status since the denial, OK fine. But if they file another I-485 right away, as soon as she gets that letter saying it's underway, she's protected from being deported. Yes it's a big expense to file it again. But nothing would prevent them from doing so, if none of the other avenues discussed here apply.

And yes, to be clear, the K1 expired the second she entered the country. She then had an I-94. It was valid for 90 days since she entered. As long as the marriage occurred before THAT 90 days was up, everything is fine.

Worse case scenario, just refile. But definitely try everything else first.

And yes, it's harsh, but to be honest, with something this important, you can't afford to make mistakes like that. If and when we have our interview, I'm going to put post-its around my entire house with the date and time!!!!

[Villanelle 4,122]

Infopass is the Field office. For you it would be in San Bernardino.

Different offices are set up different ways. They typically have a bunch of different windows. One may be a general intake window, one may be the infopass window, one may be a window just for interviews to check in. Theyre all different. Ive never been there so I cant say- this is the window you want to go to.

One USCIS office I went to had about 8 windows each clearly labeled but there was not a soul in the office, I stood there for 5 minutes with my infopass apt printout before a man came out of the back and waved me over the far end window that said interviews only across the window to help me. Another office I went to had an armed guard at the door directing people based on their letters/notices he checked with a magnifying glass at the door. I had to wait on a specific long line for 20 mins before I got to the window, which then directed me to another window- more waiting- and then I got to speak to someone.

So thats the office youre going to go to. Exactly whats going to happen when you get there- I dont know. What line you get on, I dont know. Like Darnell said- your goal is -get in the building- get in the office- speak to someone. "Stick with the concept of 'we missed the appointment, please have pity on us' " Darnell is a very very wise man. 3 pages ago he said- uncle Darnell says go to infopass on Monday. Listen to him.

If infopass wont, can not or is unable to reschedule you- your choices are file a motion and 485 again (you have to file the 485 or they face deportation orders being issued) or just file the 485 again.

[mander1141 0]

i say take all of the appointment letters, your wife and her child,

and go in on Monday. Don't get caught up on concept of 'we are coming in for infopass' at all.

Stick with the concept of 'we missed the appointment, please have pity on us'

as

the casefiles are most likely still there.

it's THEIR interviews, not yours.

Be prepared, just in case the IO does take pity on you and acquiesces to an interview on the spot.

IMO - that's what you want - an interview on the spot, for the two of them.

-----------UPDATE--------------------

We went yesterday. We got passed the guards. We didn't have to wait in line. We got as far as the Clerk (who seems to be in charge of forms / InfoPass appointments and the largest wall of bureaucracy). We told her our story. We explained that we know we were negligent, because even though we didn't intend to miss our appointment we should have known better. We aren't here with an excuse, we only have an explanation, etc.

She said that no I/O will talk to us. And pulled out two copies of I-290B. I said, but we have no legal basis to ask that it be re-opened and she hesitated. "Do you have your letter?" My wife hauled out her ::SUITCASE:: of documentation, and handed over the letter. She began reading it, got about through the first paragaraph.."what does this say?" she said to herself. "I'll be right back"

She disappeared for about two minutes... Yes, file an I-290B. What if we lose? I said. While we are chasing after this I-290B, we are spending $1,260 and my wife has no legal protection against deportation. "She's not going to get deported! You only missed an appointment! Besides, you can file the I-485 at anytime! Don't waste your money on that!" Yes, but what if???

She disappeared again and was gone for quite some time. A line of people was beginning to form behind us. She came back, and looked me in the eye: "Don't waste your time and money on the I-485. Complete this form, and bring it back here. This address, HERE."

------------ UPDATE COMPLETE --------------

What to do??? I don't know who she was talking to and I'm pretty much convinced that we have no legal basis to file an I-290B. But as you can see ^^^ she was adamant that we go this route, and not delay, either.

Thanks,

-Mal.

[Harpa Timsah 13,258]

Follow her instructions.

[Darnell 8,479]

well, some result, so that's a plus.

what's the form she gave you ?

[Villanelle 4,122]

She gave him the motion to appeal form.

When they or if they decide to move forward with deportation its not like you just get a notice that says 'congratulations youve been deported'. Youd first get a notice that says youre eligible for deportation, and theres a hearing set. Its a process. Youd have a chance to file your 485 then. So you get a notice that says theres a deportation hearing. They dont just come and take you away.

So shes telling you, you can file the 485 anytime. You can hold off filing it. If it becomes necessary to file it (you get a deportation notice that a hearings set) you may want to. You can not file the 485 and go to the hearing and explain to the immigration judge you have a motion to appeal pending and if it fails you will be refiling the 485 as you are able to adjust status that way legally and he may cancel the deportation order. He may say nope thats not good enough, file it now. Its really up to the judge. The thing is a K1 has no status. Youre out of status after 90 days. So youre eligible for the deportation order to be generated. Its going to come down do they want the extra fees they get from having you file the form again (they usually do)

From my understanding the deportation order is going to come from the same person/dept that generated the denial. So if shes saying- youre not going to be facing deportation orders going out, then I would trust her. For the deportation order to go out they have to recommend them to. They have to place the case into removal proceedings based on the denial at their local office. Shes saying they are not going to be doing that. I would trust her. Worst case, if shes wrong and you get a hearing for a deportation order, you take it from there. Like I said you can either promptly file the 485 or go speak the judge and see if he'll waive the order or force you to file the 485 to cancel the order.

For your motion- I kind of agree you dont really have legal grounds to appeal it on as most things I read said Oops is not enough to get it reversed. But from what Vanessa said, they just want the fees.

I guess try to fill out the MTR the best you can. Do not say on it "i know we have no legal grounds" lol.

I believe successful MTRs are ones where people can show they had good faith in attending the interviews and did not attend because a circumstance out of their control prevented them from attending.

So perhaps just a simple explanation of we received the interview notice, misread it, went to the field office on the date we thought the interview was, when we got there we found out the interview was Jan 25th and not Jan 28th. We were given this form to fill out. You can attach perhaps a letter from your job showing you requested time off for Jan 28th (if they could write it was specifically for the interview that could help) maybe the same from your sons school, if you gave them advance notice of his absence.

[mander1141 0]

She gave him the motion to appeal form.

When they or if they decide to move forward with deportation its not like you just get a notice that says 'congratulations youve been deported'. Youd first get a notice that says youre eligible for deportation, and theres a hearing set. Its a process. Youd have a chance to file your 485 then. So you get a notice that says theres a deportation hearing. They dont just come and take you away.

So shes telling you, you can file the 485 anytime. You can hold off filing it. If it becomes necessary to file it (you get a deportation notice that a hearings set) you may want to. You can not file the 485 and go to the hearing and explain to the immigration judge you have a motion to appeal pending and if it fails you will be refiling the 485 as you are able to adjust status that way legally and he may cancel the deportation order. He may say nope thats not good enough, file it now. Its really up to the judge. The thing is a K1 has no status. Youre out of status after 90 days. So youre eligible for the deportation order to be generated. Its going to come down do they want the extra fees they get from having you file the form again (they usually do)

From my understanding the deportation order is going to come from the same person/dept that generated the denial. So if shes saying- youre not going to be facing deportation orders going out, then I would trust her. For the deportation order to go out they have to recommend them to. They have to place the case into removal proceedings based on the denial at their local office. Shes saying they are not going to be doing that. I would trust her. Worst case, if shes wrong and you get a hearing for a deportation order, you take it from there. Like I said you can either promptly file the 485 or go speak the judge and see if he'll waive the order or force you to file the 485 to cancel the order.

For your motion- I kind of agree you dont really have legal grounds to appeal it on as most things I read said Oops is not enough to get it reversed. But from what Vanessa said, they just want the fees.

I guess try to fill out the MTR the best you can. Do not say on it "i know we have no legal grounds" lol.

I believe successful MTRs are ones where people can show they had good faith in attending the interviews and did not attend because a circumstance out of their control prevented them from attending.

So perhaps just a simple explanation of we received the interview notice, misread it, went to the field office on the date we thought the interview was, when we got there we found out the interview was Jan 25th and not Jan 28th. We were given this form to fill out. You can attach perhaps a letter from your job showing you requested time off for Jan 28th (if they could write it was specifically for the interview that could help) maybe the same from your sons school, if you gave them advance notice of his absence.

::: I'm Learning a Few Things and Documenting Them Here :::

If you use your EAD while Adjusting Status, you could lose your non-immigrant status. This isn't an issue in our case, but might have unexpected consequences for anyone in a similar situation that uses it while in AOS.

Motion to REOPEN (Not Appeal) is the proper course of action here. The I-485 paperwork remains at the Field Office and the MTR is to be sent to the Field Office, and not to the other addresses listed on the form. The MTR in this case is decided at the field office at the discretion of the Immigration Officer (or Supervisor?).

[mander1141 0]

Follow her instructions.

The problem I have is that I now realize that her instructions: "Submit an I-290B" aren't all that simple. I'm not a lawyer, so I haven't got a clue as to how to properly write our statement.

Does anyone here have experience in this area? Is there an example statement I could have a look at? Do I need to collect depositions? There are plenty of people around here in my neighborhood that we had conversations with (including my parents, through phone calls - maybe emails too) that knew that we thought our appointment was for Monday rather than Friday. If I have emails, how do I submit them in a way that is acceptable/admissible to USCIS?

Thank you, one and ALL. I anticipate a busy weekend ahead, as I want very much to get this to the proper people ASAP.

Edited February 8, 2013 by mander1141

[Villanelle 4,122]

Ok heres a simple breakdown of the choices: theres appeal, reopen, and reconsider/reopen.

An appeal is a request to a higher authority to review a decision. It goes through the Officer first though. See where it says on the form- it may be considered by USCIS as a motion before forwarded to AAO? thats what it means. AAO is the higher authority. USCIS is the officer. So the officer is going to see it first, treat it as a motion, if the approve it, it ends there, if they dont, it gets forwarded to the AAO which can take forever.

So when you file an appeal youre appealing the decision to the AAO but the officer who made the original decision will first review the record. A review of the record will determine whether the evidence or argument submitted in the appeal warrants reopening or reconsidering the decision. If they do- it ends there. If the adjudicating officer determines it doesnt, the officer will forward the case for further review to the AAO.

You are not required to submit a brief with an appeal, but you may submit one if you choose. You must, however, provide a sufficient explanation as to why you think the earlier decision was in error. If you do not provide an explanation of why you think the earlier decision was in error, and you do not file a brief, your appeal may be denied.

If your case does not get approved by the Officer and goes to the AAO they attempts to resolve appeals within six months of receipt.

For a Motions to Reopen or Reconsider:

A motion to reopen is a request to the original decision maker to review a decision. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances, and "state the new facts to be provided in the reopened proceedings and be supported by affidavits or other documentary evidence." See 8 CFR 103.5(a)(2).

If the underlying application or petition was denied due to abandonment (e.g. failure to respond timely to a request for evidence or a notice of intent to deny), a motion to reopen may be filed if it can be shown that:

The requested evidence was not material,

The required initial evidence was submitted with the application or petition,

The request for appearance or additional evidence was complied with during the allotted period, or

The request for evidence or appearance was not sent to the address of record.

A motion to reconsider is a request to the original decision maker to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration. A motion to reconsider must be supported by "any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or [uSCIS] policy." See 8 CFR 103.5(a)(3). Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.

Again, you are not required to submit a brief with your motion, but you may submit one if you choose. You must, however, provide a sufficient explanation of why you think the earlier decision was in error. If you do not provide an explanation of why you think the earlier decision was in error, and you do not file a brief, your motion may be dismissed.

The motion stays at the local office and are supposedly adjudicated in 90 days. If you disagree with the decision you can appeal it to the AAO.

To file a motion you need to be able to quote policy or law.

So to be able to file a motion to reopen youd have to show you did not get the notice or it was sent to the wrong address and show the policy that states if you didnt get the notice or it was mailed to the wrong address- its not your fault for missing it. Or show which policy or law it is that shouldve allowed you a chance to reschedule. Along with your reason for rescheduling. (but your reason for rescheduling must be one of the reasons in their policy) The reasons in their policy are very limited. It only allows for things like medical emergencies, not being able to get time off work/financial hardship, bridge was closed and roads flooded- extreme circumstances. Mixing up dates does not count.

To file a motion to reconsider youd have to show they based their denial on an incorrect application of law and show the law they got wrong.

So going back a page or two, as the user in the other legal site posed and was advised to by a lawyer, it seems the best option is to check A- file an appeal.

Filing an appeal means you dont need to quote the law.

Submit a brief.

At the top of your Brief Title it

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

Then say Please reopen and reconsider based on the evidence i am submitting and in the alternative, consider this an appeal.

Go on to list the policy that states you can reschedule. List your reason for not attending. Are you sure you mixed up the dates and did not have a different reason for not attending? This would go over a heck of a lot better if you had a different reason.. But it is what it is. To quote a policy, youd find it in the field manual and take the little letter and number from in front of it and the section. You can also print out the page and attach it. You could also get a statement from your job possibly saying you were required to be at work that day and had the day you thought you were suppose to be at the interview off. That to me seems like a very honest statement. You were required to be at work. you didnt take the time off. its a little treading on thin ice because you technically didnt ask for the day off- but a statement saying you were required to be at work on that day is not a false statement. And a statement saying you were required at work will be enough to be approved.

[mander1141 0]

To file a motion to reconsider youd have to show they based their denial on an incorrect application of law and show the law they got wrong.

So going back a page or two, as the user in the other legal site posed and was advised to by a lawyer, it seems the best option is to check A- file an appeal.

Filing an appeal means you dont need to quote the law.

Submit a brief.

At the top of your Brief Title it

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

Then say Please reopen and reconsider based on the evidence i am submitting and in the alternative, consider this an appeal.

Go on to list the policy that states you can reschedule. List your reason for not attending. Are you sure you mixed up the dates and did not have a different reason for not attending? This would go over a heck of a lot better if you had a different reason.. But it is what it is. To quote a policy, youd find it in the field manual and take the little letter and number from in front of it and the section. You can also print out the page and attach it. You could also get a statement from your job possibly saying you were required to be at work that day and had the day you thought you were suppose to be at the interview off. That to me seems like a very honest statement. You were required to be at work. you didnt take the time off. its a little treading on thin ice because you technically didnt ask for the day off- but a statement saying you were required to be at work on that day is not a false statement. And a statement saying you were required at work will be enough to be approved.

Okay a Motion to Reopen and Reconsider Appeal and in the Alternative Appeal with our story in the Brief, it is.

Yes, it's tempting to say that 'A speeding boulder hit my car and that's why I have a big dent in the rear of it'. However, that isn't the case here. I know from reading a lot this week that the system seems to encourage lying to Federal Officers in order to overcome (what should be) a simple obstacle.

I can't do business that way. Somewhere there must be a mechanism to state our case honestly and receive a pardon. I'm going to keep researching...

Thanks for your assistance!

-Mal

[Harpa Timsah 13,258]

OP: the person told you to submit the form. They decide if it gets reopened. I would throw yourself on their mercy, with that form, even though it doesn't seem to qualify. Worst case, you apply again with I-485.

So it's a $600 gamble to try this way, to save $400 if you just reapplied with the I-485. Personally I would do the MTR since the person told you to do that. I would put it in your letter that you were instructed to do this.

[mander1141 0]

OP: the person told you to submit the form. They decide if it gets reopened. I would throw yourself on their mercy, with that form, even though it doesn't seem to qualify. Worst case, you apply again with I-485.

So it's a $600 gamble to try this way, to save $400 if you just reapplied with the I-485. Personally I would do the MTR since the person told you to do that. I would put it in your letter that you were instructed to do this.

Very sound advice and in the end that is likely the approach I will take.

[Villanelle 4,122]

Youre going to check off Box A for an appeal. An appeal does not require you to quote any laws or policies. Youre going to title your brief "Motion to Reopen and Reconsider Appeal and in the Alternative Appeal". Youre going to bring it to the local office. Its going to go to the officer to review/approve/deny. If they deny it, it automatically goes to the higher authority. If they approve it, you get your interview.

In it, I would simply say- Please reopen and reconsider based on the evidence I am submitting and in the alternative, consider this an appeal. On X date Mrs A#- and son A# and Mr USC were scheduled for an interview at local office Y. Mr was scheduled to work at Y company on said date and could not attend. Mr was incorrectly scheduled for Z day off instead in error. A letter from Y company is attached as evidence. There is absolutely nothing untrue in that statement. Theres nothing about oops we mixed up the dates. You could go on to state the denial notice for Mrs interview went out the same date as the missed interview, you attempted to call the phone center and were told you did reschedule but then got a denial, called back and were told the denial went out before the reschedule so it was invalidated, you made an infopass but it was for late in the month, so you did a walk in and you were advised by the supervisor at the field office to submit this form along with this brief as explanation to have your case reopened and interview rescheduled.

But thats just me. If youre really struggling with it, consider hiring an attorney for a consultation. You dont have to hire them to fill out and submit the forms for you, but just for some general legal advice on how to fill it out. Some can even do phone consultations for minimal fees.