Help! Need to petition denial!

[san diego 407]

There is something wrong about your profile.. it states that beneficiary is from Armenia.. and that you are in process of obtaining CR1. So, what is it??

[newlyweds2010 208]

My feeling is that while you certainly cannot appeal a denial from the VWP, here you may have grounds to request that your case be reopened. You were not denied because your marriage was not believed to be a bona fide one, but because you missed your interview, which you never received notice of. Basically, the USCIS (or the USPS) screwed up. If you had had your interview and the IO had denied you, that would have been a different story. On the other hand, the EAD is invalid and he will not be allowed to work based on that document. Good luck.

[newlyweds2010 208]

Husband called thus morning: they said to write a "letter of service motion" and it could be reopened and not cost anything. Got officers name and info. Jeeze i hope it works out.... i'm sorry, but i wont put up with punishment or huge fees - we didn't do anything wrong!

Also the denial letter only references the application for alien relative - not the app for AOS. And says nothing about his ead.

I suspect that shortly you will receive a separate notice denying his AOS application, which was based on the application for alien relative. At that point they will tell you that the EAD is invalid.

[Inky 1,111]

There is something wrong about your profile.. it states that beneficiary is from Armenia.. and that you are in process of obtaining CR1. So, what is it??

Armenia is the standard country used in that spot. If you do not update your timeline it will say Armenia. Happens to everyone.

[Harpa Timsah 13,258]

Husband called thus morning: they said to write a "letter of service motion" and it could be reopened and not cost anything. Got officers name and info. Jeeze i hope it works out.... i'm sorry, but i wont put up with punishment or huge fees - we didn't do anything wrong!

Also the denial letter only references the application for alien relative - not the app for AOS. And says nothing about his ead.

Here is an update to a similar situation. http://www.visajourney.com/forums/topic/412230-missed-aos-interview/page__view__findpost__p__5982369

This person went to INFOPASS, with MTR prepared, and got some action. Free Reopen of case.

[Allie&Alex 0]

Made info pass for next available - wednesday next week. Went to field office ths morning anyway, but couldnt see an officer. Woman at reception window was helpful and understanding though, even said that this happens every once in a while. Told us to bring everything to our appointment and explain situation. We brought our stuffed folder of immigration 'stuff' as well as new affidavits from all household members saying that we checked the mail thoroughly every day and did not receive an invite. Filled out 290b and brought checkbook just in case.

Also got another letter today for denial of aos since i130 was denied. Says ead will be revoked in 15 days unless we fix it before then. Not quitting his job yet!

Alex is getting his wisdom teeth out monday.... pain killers galore for the infopass appt should make it interesting... lol. Gotta keep spirits up!

Wish us luck

[akihon 129]

I'm surprised you didn't know anything about the interview. did you check the status online on USCIS? I signed up for email alerts and never got them beyond the first NOAs. I just religiously checked the status page.

[Allie&Alex 0]

Regretfully i did not check online - i didnt expect an interview for months! And the old fashion snail mail was working fine for everything else. When we called they said they should have sent out the invite nov 27. As mentioned im a full time nursing student and working part time to support my husband and i. December was full of finals, holidays, plus my dad was in the hospital all month (we live with my parents). Fully expecting to see nothing, checking status online was low priority.

[Xanax 349]

Regretfully i did not check online - i didnt expect an interview for months! And the old fashion snail mail was working fine for everything else. When we called they said they should have sent out the invite nov 27. As mentioned im a full time nursing student and working part time to support my husband and i. December was full of finals, holidays, plus my dad was in the hospital all month (we live with my parents). Fully expecting to see nothing, checking status online was low priority.

I really hope this gets resolved for you and your husband gets to stay/ does not get put in removal proceedings or deported and you don't have to start again. I cannot imagine how stressful this is for you.

Good luck.

Edit: please update your timeline too to reflect your visa type and process to help others

Edited February 16, 2013 by Xanax

[blankmedia 41]

You absolutely CAN appeal a VWP denial!! It's a myth on this website that you cannot. I'm pretty sure the myth comes from people who can't speak English well stating that the "Waiver" in "Visa Waiver Program" means that you are "waiving you right to an appeal". Which is obviously not true.

You pretty much should avoid listening to anyone on this website if its in regard to adjusting status from VWP. They will try to scare you, claim you are criminal for doing it. They are just jealous because they mostly come from countries that aren't included in VWP and wait a long time to come in via K-1 and CR-1.

It's not criminal, it's not a shortcut, it's perfectly legal. You CAN appeal the decision.

Good Luck!

[*Snowdrop* 604]

You absolutely CAN appeal a VWP denial!! It's a myth on this website that you cannot. I'm pretty sure the myth comes from people who can't speak English well stating that the "Waiver" in "Visa Waiver Program" means that you are "waiving you right to an appeal". Which is obviously not true.

You pretty much should avoid listening to anyone on this website if its in regard to adjusting status from VWP. They will try to scare you, claim you are criminal for doing it. They are just jealous because they mostly come from countries that aren't included in VWP and wait a long time to come in via K-1 and CR-1.

It's not criminal, it's not a shortcut, it's perfectly legal. You CAN appeal the decision.

Good Luck!

While the 'waiver' in the title Visa Waiver Program may refer to the visa itself being 'waived' for tourist entry, the reason for people believing there is no appeal on the VWP is the following:

When you enter on the VWP you sign the I-94W or the new electronic ESTA version and agree to the following:

WAIVER OF RIGHTS: I hereby waive any rights to review or appeal of a U.S. Customs and Border

Protection officer’s determination as to my admissibility, or to contest, other than on the basis of an

application for asylum, any action in deportation.

http://forms.cbp.gov/pdf/visa_waiver.pdf

This is directly referring to the initial entry to the US - where if the officer at the border says "No entry for you", you have no right to appeal that decision and have to get on a plane and go straight home. (Unless you are claiming asylum)

There have been cases (and I'm sorry I can't quote them here directly) where people AOS'ing from the VWP have not been able to appeal their AOS denial because the authorities have used the waiver of rights to an appeal from the I-94W as grounds for no appeal.

However as someone mentioned above USCIS can use its discretion to reopen the case if they see grounds to do so.

And blankmedia - I'd just like to answer your point about why some people on here get agitated about people AOS'ing from the VWP. It's because to many people it feels like they are jumping the queue - even if it's legal with 'no intent' on entry. And even if intent is so hard to prove that it's a viable option for those with intent.

I still find it hard to imagine how there can be many people who are able to go on holiday for a few weeks, even months etc and then really don't need to go back home to settle up their lives before immigrating. Don't people have houses, leases, pets, jobs, bills, post, commitments to deal with?

Although I also don't really get the 'can't bear to spend another minute apart' scenario either. What about when your partner goes on a business trip or you take the kids home to see their grandparents and your husband can't come too. Do many couples now spend every night of the rest of their lives together?

[Hypnos 6,578]

You absolutely CAN appeal a VWP denial!! It's a myth on this website that you cannot. I'm pretty sure the myth comes from people who can't speak English well stating that the "Waiver" in "Visa Waiver Program" means that you are "waiving you right to an appeal". Which is obviously not true.

I come from the place that invented English and it absolutely is true that you cannot appeal an AoS denial from the VWP for the reasons stated by Lynne above.

It's not criminal, it's not a shortcut, it's perfectly legal. You CAN appeal the decision.

You are mistaking being able to AoS from the VWP in the first place, with being able to appeal any denial arising from that application.

[Villanelle 4,122]

^Exactly. I guess the technicality here is what theyre doing is not an appeal, an appeal would go to the higher authority- the board of appeals/the court etc. Theyre filing a motion to reopen/reconsider that would be based at the local office with the officer that denied them.

The AAO could and would most likely flat out reject it because its based on a VWP and they just dont deal with VWP- doesnt matter if it was a denial based on a missed interview or based on adjusting with intent to stay.

The Officer is probably going to be more open to the motion for a new interview and grant it, because they have sufficient proof, its a motion and not an appeal, and the Officer has the discretion and the power to approve it even if they were on the VWP.

[blankmedia 41]

So you are saying that USCIS claims that the waiver of rights to appeal a decision by CBP upon first entry also waives the rights to appeal a change of status? This doesn't make sense to me. I still suggest that in this case the OP appeal the decision due to the circumstances being out of their control and obviously the fault of USCIS and/or USPS.

[*Snowdrop* 604]

So you are saying that USCIS claims that the waiver of rights to appeal a decision by CBP upon first entry also waives the rights to appeal a change of status? This doesn't make sense to me. I still suggest that in this case the OP appeal the decision due to the circumstances being out of their control and obviously the fault of USCIS and/or USPS.

It might not make sense but it's the current state of things:

The "no contest provision states, "Waiver of Rights. An alien may not be provided a waiver under the program unless the alien has waived any right–

(1) to review or appeal under this Act of an immigration officer's determination as to the admissibility of the alien at the port of entry into the United States, or

(2) to contest, other than on the basis of an application for asylum, any action for removal of the alien.

It's that second part which can be applied to the AOS application - 'any action for removal of the alien' in other words at any time not just at POE.

A few years ago (maybe 2010?) there were a number of local offices denying people who were (I think) trying to AOS under the VWP but had married after the 90 days of the VWP. These cases were being denied outright and ordered to leave with no right to an appeal. It sent waves of panic through the VJ boards - you can probably find some older threads on that. In the end I think the local offices which were taking this stance were told to stop it and allow AOS from VWP again.

But I'm sure there are some people on here who went through that. I'm hazy on the exact details of why it started and why it stopped but it's why many members on here have it drilled into their heads that there is no appeal for AOS'ers from the VWP. We read so many threads on it before.