Motion to Reopen

[MariaAndreas 9]

Not sure a MTR will be successful.

You need to show that USCIS made an error either in law or policy. If you did not present a certified copy of your husband's divorce decree then the mistake was yours.

It routinely takes ~6-12 months to process an appeal. You may wish to consider withdrawing the appeal and simply refilling for a CR-1 spousal visa, since it will probably take a similar amount of time, and given the facts as you have outlined them I'm doubtful your appeal will be upheld.

In the letter of denial USCIS themselves offered us to file motion to reopen (if we give them new evidences, such the certified copy of divorce paper from a court, in our case) or motion to reconsider (if we were sure the IO was wrong and could prove it). It is clear MTR was the right one for us.

Generally, the form I-290B can be used in three different circumstances:

1. Appeal, which is request to a higher authority to review a decision. Denial of I-485 cannot be appealed, which is said here: http://www.uscis.gov/forms/when-use-form-i-290b-notice-appeal-or-motion

2. Motions to Reopen, which is a request to the original decision maker to review a decision. The MTR 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).

3. Motion to Reconsider, which 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. 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.

The information is taken from here: http://www.uscis.gov/forms/questions-and-answers-appeals-and-motions

You suggest for a CR-1 spousal visa. We consider it as a last measure because it would take no less than a year, much money and nerves. It would not be "refiling" since we had never file for that. We filed for a K1 fiance visa, and it took us about 5 months.

Motions to reopen are considered within 90 days ("some cases may take longer", from the USCIS web site) and cost much less than the full CR-1 (with medical examination, petition fee, consular fee, and so on). We have already paid for the GC and think our case is very easy to resolve. If there is not be any answer, we will make complains and do not mind to appeal to a court.

I don't know honestly or not, my hubby said if they deny again, he will throw at them his American passport and deny his Am. citizenship :-) We'll see )))

Edited July 6, 2015 by MariaAndreas

[Hypnos 6,576]

The information regarding appeals is always included in denial notices.

As I said, since the mistake was yours (you provided the wrong document) I do not believe any appeal will be successful. Certainly, it's your choice to pursue it though.

[MariaAndreas 9]

The information regarding appeals is always included in denial notices.

As I said, since the mistake was yours (you provided the wrong document) I do not believe any appeal will be successful. Certainly, it's your choice to pursue it though.

I will repeat: our Denial Notice said we canNOT appeal but can file Motion to Reopen or Reconsider. In our case, it is MT Reopen since - yes - the mistake was ours. Appeal, MTR, and MT Reconsider are not the same thing. In my previous post, I stated it for you based on the official information.

You may not believe in success if you don't want. I believe that, despite your opinion, our MTR and GC will be soon approved.

Anyway, thank you very much for your time and advice. I appreciate it.

[Ebunoluwa 6,136]

I would base a senatorial request to have the case reviewed on the adjudicator' error because you were verbally assured that all is in order and that there is nothing to worry about ! Then the asinine flip and that to me demonstrates error on behalf of your IO. You can in the meantime consult with several GOOD attorneys for free and see if there is a general consensus which you can pursue by yourself. But get a senator on it who can deal aggressively with this issue not just a ladida inquiry. Speak to several of their aides in different offices and then pick someone who "gets it". My angle would be approaching it based on error due to the verbal re assurance you received from the IO.

[Jawaree 717]

Yes you can contact your congress-person now you have to fill out authorization form & fax/mail to them

One can ask DHS to join motions (& pray) when filing re-opens or reconsider, You would call in DHS to the

jurisdiction in your home town & most places you will get the instructions to file joint motions, they have

joined many I understand while some they have not, having no bad record may be in your favor.

* I totally agree with Hypnos because re-filing goes faster or about the same time

Edited July 6, 2015 by Jawaree

[Ebunoluwa 6,136]

Bottom line is the IO is nuts for denying ( translation >>>>>in error ) because : He had the certified divorce decree in the K1 file that he said he needed to add to the current AOS packet. It is there right under his nose, it was in possession of USCIS. Period.

He was shown a copy of it. He must RFE for the certified decree or find it in the file where it is.

Therefore he was in error, lazy and out of his mind to deny.

I don't see the OP being in error, tough out of luck yeah he should have brought the cert. decree but that is what RFE's are for

and the real deal was in the IO's file already. This whole thing is absurd. I would fight their asinine decision through a senator/congressman.

Policy was not followed, especially not when telling the OP that 'everything is fine'. It's BS.

[MariaAndreas 9]

Bottom line is the IO is nuts for denying ( translation >>>>>in error ) because : He had the certified divorce decree in the K1 file that he said he needed to add to the current AOS packet. It is there right under his nose, it was in possession of USCIS. Period.

He was shown a copy of it. He must RFE for the certified decree or find it in the file where it is.

Therefore he was in error, lazy and out of his mind to deny.

I don't see the OP being in error, tough out of luck yeah he should have brought the cert. decree but that is what RFE's are for

and the real deal was in the IO's file already. This whole thing is absurd. I would fight their asinine decision through a senator/congressman.

Policy was not followed, especially not when telling the OP that 'everything is fine'. It's BS.

Thank you for your support! Unfortunately, "verbally" and "written" are different terms. Which is verbally, we cannot prove, while written denial notice and that RFE stated clearly what they need. It is my spouse's fault he understood it wrong.

Anyway. Yesterday we called to USCIS and complaint about long-term procedure and that my husband is loosing his income staying here with me, and that we are both in stress about destroying our family plans. Therefore, we have a chance to expedite the process. Since "loss of income", as well as live danger and so on, is a reason to apply for our application to be expedited. They promised to call us back in a week.

To Jawaree and Hypnos: Thank you, guys, but there is a big difference between 90 days waiting for MTR and 1 year for CR-1, and also big money difference. As I said, we lost a lot of our income, I cannot even go work because I don't know when I have to leave again, and we also have to pay a short term rent for our temporary apartment. We don't want to go through all this "Visa -> GC" again. It is ridiculous they denied my GC so easy, and, if they want so, we will complaint higher.

Thank you all very much. I read and learn from each your advice.

[Darnell 8,478]

The strange thing is that IO told us on the interview they needed those 1,5 months to obtain the folder with my K1 case and stock them altogether with my GC case... Something like that. But if they got my K1 case, then the certified divorce paper is there! I don't understand, are they blind, or they just clutch the straws to destroy our life?

grrr - it's then clear,

IO not have the A-file in front of him on interview day. That's a big problem. Seriously.

[Ebunoluwa 6,136]

Yes, I thought about the verbal not carrying much weight but AOS interviews are usually video taped.

Anyway, I wish you succeed and a speedy resolve.

I just get so ticked off at this inefficiency.

We make one wrong move and all hell breaks lose, they make one stupid mistake and all hell still breaks lose for us not them

and it costs us time and money without recourse.

[MariaAndreas 9]

Friends, I need your advice!

My spouse is leaving to USA in 2 days (now we both are in Cyprus, in his country). I stay, of course... He will try to solve our problem there. However, I am sure he will need a power of attorney from me to represent me in USCIS. We called to USCIS few times from here, and he spoke for me as a husband of an applicant, but every time they asked: "Can we hear your wife? ... Your first and last name, mam? .... Do you agree we can speak with your husband about your case? ... ("Yes!") ... Thank you mam!" and he could then speak on my behalf. But when we are separate I cannot be close to him to say "yes", and they may refuse talking to him.

Does somebody know how to make some paper, power of attorney, for my spouse to represent me an speak on my behalf in american immigration offices? Should I do it through the U.S. Embassy? Is there any special form for this?

Can I use the form G-28 for my spouse, or it is only for lawyers?

Thank you!

Edited July 15, 2015 by MariaAndreas

[MariaAndreas 9]

Update: Ok, the G-28 is out of question now, it is definitely only for lawyers.

I will be very grateful for your help! Thank you in advance.

[Ebunoluwa 6,136]

In my opinion you do need a lawyer consultation. I know you have spoken to several ones that were clueless, however there are thousands of

good immigration lawyers that deal with this everyday and will give you a free consult. Call 10 different ones if you have to until you find one

that has "successfully" dealt with this before. Ask him tough questions and who knows there may be an out we are not aware of.

Then follow his advice.

[MariaAndreas 9]

We called to NCSC and asked to expedite our case due to severe financial loss of income. A week after we got a letter stating,

"We regret to inform you that we cannot grant you request for expedited processing of your I-290, Notice of Appeal or Motion.

Although your situation appears serious, you have not provided evidence of an extreme emergent need, which must meet on if the following criteria:

... *Severe financial loss to company or individual;

...

If you wish to submit an evidence, please fax this notice and the evidence to

..."

Interestingly, how we should have provided them evidences by phone! But Ok, spouse sent evidences by fax as they allowed in the letter. Few hours later, we called them to find out if the fax was received successfully. We got the answer, "We have no information about it sir. If there is any information, they will contact you directly." So, it is impossible even to find out whether the fax passed through or no.

On July 17 we celebrated our 1st anniversary :-), and the next day my husband left home to USA, and I stayed alone :-(

I hope our MTR will get positive result, and I can return home. Otherwise, my spouse will come to me again in September, of course, losing his job completely, but what can we do.

[Pitaya 2,577]

~Rather than rehash a year-old thread, new question moved to new thread~

~This thread is now closed to further comment~

Pitaya

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