Please Help! Lots of Questions

[chengrob 0]

Hello. I feel lost right now and not sure where to turn. I hope someone from this community can lend a hand.

I am a US citizen and I have three "residences". One in Brazil, one in Myrtle Beach, SC and a third because I own an American company whose headquarters are in Sioux City, IA. My wife and I were married in 2006, and that same year, I received my Brazilian residence valid for 10 years. The following year, 2007, my wife received her American tourist visa, and we traveled to the US and our first child was born in Myrtle Beach SC. In 2008, our second child was born in Rio de Janeiro and right after that, starting in Jan 2010, my wife has been getting her degree here in Rio and she is scheduled to graduate in August 2013. Our plan is when she graduates, that we return full time to the US and our children can enter the elementary school in Myrtle Beach SC.

In 2012, my wife's tourist visa expired, and she got a new one in Dec 2012. At roughly the same time, I started the green card process in the United States. We entered the US on Dec 22nd and it was my hope that we could get it all done before we left on Feb 22. We received our first notification to show up in Omaha for fingerprints. I called them up and told them that we did not live in Sioux City and prefer Charleston. No problem and we got that done. We also had her vaccines and civil surgeon exam done in January 2013. Then in Feb 2013, we get a notification to appear on Mar 19 in Omaha for her interview. I called them and told them that we prefer Charleston not Omaha and given my wife's schedule, we would not be able to make the interview until September 2013. They said no problem and put a service request in the computer. After two weeks, I heard nothing and called again. They said not to worry that my request was in the system.

I did not hear anything until May 11th, and both the I 130 and the I 485 were both denied and the I 485 was denied without right to appeal. The reason for all of this was because we failed to appear for the interview. I called them again, and they informed me that the request to reschedule was denied was sent via email (not US mail) on Mar 25, which was one week AFTER the interview. This is of course unfair because if they told me before then I would at least have a chance to try to make the interview. Stranger yet, none of the documents received on May 11th had a date. The form letters have a place to put the date but the date is blank.

I did not have a lawyer for all of this although I have talked to quite a few (without paying any of them) and they all have different and often conflicting advice. So here are my questions.

1. Should I appeal the I 130? They say the I 485 we cannot repeal but if I pay $110 then I can try and appeal. I figure that no matter what, I will eventually need the I 130 so this is worth doing. One lawyer said the downside is that it might take between 1-2 years to appeal and I was better off just starting over and taking my lumps on the money spent.

2. Should we try DCF? On the surface, we seem like the ideal candidate since we have lived her for the last 7 years and we have two children both in school in Rio. I have contacted the consulate and it seems that DCF is not available? Not sure, but their web site goes to a place to process a I 130 through Chicago so perhaps I made the false assumption that DCF is not available.

3. Should we try again? I have talked to the Immigration Services and they believe that if we had showed up in Omaha that everything would be fine right now. The problem is that we ran out of time. My idea is that my wife could enter the country again as a tourist in August and then after wards we could start the process and now we have 6 months to go through the process instead of 2 months and we could make all of our appointments without having to reschedule and avoid confusion. Some lawyers have said that this option is impossible because it is impossible to get a green card in the US when holding a valid tourist visa. They say that technically it should not be possible to enter the country when there is a pending I 485. This I know to be untrue because we entered and left the country all while our I 485 was pending. There is also a field on both the I 130 and I 485 that asks whether the beneficiary is in the US and their I 74 departure date. So it seems that this should be possible but I am not sure. Other lawyers said this should not be a problem.

Like I said, I get so much conflicting advice from lawyers that I am hoping some of the veterans will have a clearer view on how to navigate this system.

Thanks for your time.