i-130 denied due to improper marriage certificate how long for appeal

[210045803 1]

Hi there my I-130 was denied because when they sent the RFE for marriage certificate I sent the letter of solemnation which I thought was the marriage certificate. I filed an appeal including the proper marriage certificate. My file was expedited at the National Benefits Center. I had a priority date of November 5th. Will a simple appeal like this take months or years or will it be fairly quick. If it will take a long time it would be quicker for me to reapply since I had mailed the application in late Oct and I was already getting RFE in Dec then denial in Jan. Please advise me. I wish I had sent the proper marriage certificate and I wouldnt be in this mess

[N-o-l-a 7,167]

Hi there my I-130 was denied because when they sent the RFE for marriage certificate I sent the letter of solemnation which I thought was the marriage certificate. I filed an appeal including the proper marriage certificate. My file was expedited at the National Benefits Center. I had a priority date of November 5th. Will a simple appeal like this take months or years or will it be fairly quick. If it will take a long time it would be quicker for me to reapply since I had mailed the application in late Oct and I was already getting RFE in Dec then denial in Jan. Please advise me. I wish I had sent the proper marriage certificate and I wouldnt be in this mess

IMO, you should have just filed a new I-130 with the proper documentation. It is my understanding that unless USCIS did something wrong then the appeal won't be won. They asked you for a proper marriage certificate and you didn't give it to them. You might want to think about just refiling, although I'm sure someone more knowledgable can clarify.

[210045803 1]

IMO, you should have just filed a new I-130 with the proper documentation. It is my understanding that unless USCIS did something wrong then the appeal won't be won. They asked you for a proper marriage certificate and you didn't give it to them. You might want to think about just refiling, although I'm sure someone more knowledgable can clarify.

Does anyone know if this is accurate? Will I lose the appeal automatically? In the letter of denial they wrote that I sent a letter of solemnation and not the marriage certificate and instructions on filing an appeal etc. I thought I could appeal and include an explanation and the proper evidence.

[VanessaTony 3,567]

As Nola stated, you are appealing their decision.

Their decision was that you sent the wrong certificate.

You DID include the wrong certificate so their denial was correct.

Most likely the appeal will be denied and you will need to refile.

Edited February 16, 2013 by Vanessa&Tony

[210045803 1]

As Nola stated, you are appealing their decision.

Their decision was that you sent the wrong certificate.

You DID include the wrong certificate so their denial was correct.

Most likely the appeal will be denied and you will need to refile.

Can I refile while the appeal is in process?

[Villanelle 4,122]

They typically try to resolve appeals with in 6 months of receipt. You may not win the appeal because they sent you an RFE and you didnt respond it to properly.

If the underlying application or petition was denied due to abandonment or 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.

You dont really fall into any of the underlined. You didnt send the marriage certificate, and you responded to the RFE in the allotted period, but you did so incorrectly. The only way you could get the appeal granted is to insist you sent the marriage certificate in the initial packet. That would be fraud and you should not under any means say you sent it unless you really did. You didnt say in your initial post if you did or not and if the RFE was for it again because they seemed to have misplaced it? I really dont know. Your initial post seems like you already filed the appeal so depending on what you wrote on it you can evaluate for yourself what you think your chances for approval are. The above are just my opinions on it.

-----

I understand you have a priority date, most people facing the decision to refile or appeal tend to do both. Its costly but it has advantages if you can afford it. Its like having 2 horses in the race. If horse 1 (the appeal) wins, horse 2 (the refile) bows out. You dont get your money back, they just shoot him in the leg and take him out of the race. If the appeal is denied, then horse 2 is already half way down the track running.

[LaVegano 12]

I agree with Nola123. Refile.

[Boggy1974 124]

They typically try to resolve appeals with in 6 months of receipt. You may not win the appeal because they sent you an RFE and you didnt respond it to properly.

If the underlying application or petition was denied due to abandonment or 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.

You dont really fall into any of the underlined. You didnt send the marriage certificate, and you responded to the RFE in the allotted period, but you did so incorrectly. The only way you could get the appeal granted is to insist you sent the marriage certificate in the initial packet. That would be fraud and you should not under any means say you sent it unless you really did. You didnt say in your initial post if you did or not and if the RFE was for it again because they seemed to have misplaced it? I really dont know. Your initial post seems like you already filed the appeal so depending on what you wrote on it you can evaluate for yourself what you think your chances for approval are. The above are just my opinions on it.

-----

I understand you have a priority date, most people facing the decision to refile or appeal tend to do both. Its costly but it has advantages if you can afford it. Its like having 2 horses in the race. If horse 1 (the appeal) wins, horse 2 (the refile) bows out. You dont get your money back, they just shoot him in the leg and take him out of the race. If the appeal is denied, then horse 2 is already half way down the track running.

Very well thought out response! :thumbs:

Refile will be in order. But just like Capri said, if you have the means, you can refile while pursuing the appeal.

Edited February 16, 2013 by Boggy1974

[let-it-be 36]

I know of someone who had a successful appeal to a denied I-130 petition.

He received an RFE for his divorce paper because it didn't have the judge's signature ( the divorce copy he had that his lawyer gave him). He responded to the RFE by sending only one page of his divorce papers with the judge signature. USCIS denied the petition. He was given a chance to appeal for i think 30 days. He scheduled an Infopass to asked for assistance in how to fill up the appeal form since he didn't know how to do it. His appeal was approved.

[210045803 1]

They typically try to resolve appeals with in 6 months of receipt. You may not win the appeal because they sent you an RFE and you didnt respond it to properly.

If the underlying application or petition was denied due to abandonment or 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.

You dont really fall into any of the underlined. You didnt send the marriage certificate, and you responded to the RFE in the allotted period, but you did so incorrectly. The only way you could get the appeal granted is to insist you sent the marriage certificate in the initial packet. That would be fraud and you should not under any means say you sent it unless you really did. You didnt say in your initial post if you did or not and if the RFE was for it again because they seemed to have misplaced it? I really dont know. Your initial post seems like you already filed the appeal so depending on what you wrote on it you can evaluate for yourself what you think your chances for approval are. The above are just my opinions on it.

-----

I understand you have a priority date, most people facing the decision to refile or appeal tend to do both. Its costly but it has advantages if you can afford it. Its like having 2 horses in the race. If horse 1 (the appeal) wins, horse 2 (the refile) bows out. You dont get your money back, they just shoot him in the leg and take him out of the race. If the appeal is denied, then horse 2 is already half way down the track running.

Thanks for clarifying. I think I will refile as well. I just did not know if the pending appeal would screw up the refile.

Thanks again for clarifying.

I know of someone who had a successful appeal to a denied I-130 petition.

He received an RFE for his divorce paper because it didn't have the judge's signature ( the divorce copy he had that his lawyer gave him). He responded to the RFE by sending only one page of his divorce papers with the judge signature. USCIS denied the petition. He was given a chance to appeal for i think 30 days. He scheduled an Infopass to asked for assistance in how to fill up the appeal form since he didn't know how to do it. His appeal was approved.

How long did the appeal take him? I also got the letter saying I have 30 days to appeal and it told me to use the form EOIR 29

[Villanelle 4,122]

Well wait a minute before you go refiling tonight something is bothering me about this. Exactly what did you file for and where? Your timeline is weird. Are you doing DCF? Did you file the 130 based on marriage to a USC? Are you doing the CR1?

Most importantly - Why do you have a priority date? is this based on marriage to an LPR?

If so then you should note that re-filing an I-130 means that the priority date in the first petition would be lost.

So in your case horse 2 (the refile) if you sent it this week, it would take about 10 days to get NOA1, So your new priority date would be Feb 26. If the appeal gets approved horse 1 wins but your new date is now Feb 26 and no longer Nov 5.

Does it make a difference? ?I dont really think so. Theyre both valid dates and your visa will be issued. (just a general FYI)

[210045803 1]

Well wait a minute before you go refiling tonight something is bothering me about this. Exactly what did you file for and where? Your timeline is weird. Are you doing DCF? Did you file the 130 based on marriage to a USC? Are you doing the CR1?

Most importantly - Why do you have a priority date? is this based on marriage to an LPR?

If so then you should note that re-filing an I-130 means that the priority date in the first petition would be lost.

So in your case horse 2 (the refile) if you sent it this week, it would take about 10 days to get NOA1, So your new priority date would be Feb 26. If the appeal gets approved horse 1 wins but your new date is now Feb 26 and no longer Nov 5.

Does it make a difference? ?I dont really think so. Theyre both valid dates and your visa will be issued. (just a general FYI)

I am a US citizen living in Canada on a work permit. I have been married to my Canadian wife for over 2 years. I am sponsoring my Canadian wife using the I-130 application. If we could have done DCF we would have but for Canada that isn't an option. However, I believe because they saw my foreign address they expedited my file. I applied in late October and my priority date was November 5th. By December I got a RFE and by January I got the denial because I did not send a marriage certificate I sent the record of solemnation. They stated in the denial that that is not a legal document. I filed an appeal using the form they told me to use and included a copy of the proper marriage certificate. I wrote in the appeal that I did not send the proper marriage certificate and now I have enclosed the proper legal one. I also included the $110 fee in my appeal. My original application was filed at the chicago lock box that they listed on the I-130 instructions, they then sent it to the national benefits center in Missouri.

Edited February 16, 2013 by 210045803

[Sandra G. 5,047]

you did you file an appeal? In the appeal you have to provide an explanation of why you think the earlier decision was in error, they didn't make any error, you are the one that submitted the wrong document.

[Villanelle 4,122]

You dont really have a priority date. I mean you do but its worthless. As a USC priority dates are immediately available to your spouse and visas will be issued.

Your concern should be as sandra just went over- your response to the appeal. From what it sounds like you just wasted a hundred bucks.

The appeal is not a second chance at sending in the RFE at an additional cost, which it seems like what you were trying to do. Its an "explanation of why you think the earlier decision was in error, and they didn't make any error" in denying you for failing to meet the RFE or denying your 130.

Your appeal is going to be denied. You can wait for it to come back denied and refile then, or you can refile now and get 'horse 2' moving now. If by some miracle they take pity on you and approve the appeal (highly unlikely because you have no legal grounds for the appeal) then you wasted the money refiling.

Its your choice. But first you should count the number of people in this thread who agree your appeal has no merit based on what you said/submitted then decide how likely it is USCIS is going to make a ruling in your favor when you have no legal grounds and how best to proceed.

[bigdog 376]

Good Luck with this mess. What ever you do reread what you need to file so you don't have further issues.