passed interview in MTL but 'refused' on technicality

[teama&a 3]

Hello,

So, my husband and I attended the interview for IR1/CR1 this month. The officer gave me a welcome letter and said that I had passed the interview. He then looked at our wedding date (Aug. 25, 2014) and advised me to have the visa "refused" for administrative purposes. He said that if the visa is issued today (day of interview) I would have to move before our wedding anniversary and immediately apply for the adjustment of status since we are well into the 90-day period. He said if I am approved and issued the CR1 that I cannot enter the US after Aug 25 and have a CR1 visa stamped and activated with an IR1 stamp. So, due to technicality he gave me a visa refusal for insufficient documents saying I had to send them my passport by mail after our anniversary date in order to have an IR1 visa issued to me and bypass the adjustment of status phase.

My question is, has this ever happened to anyone before? How long does it take for the embassy to receive documents sent and issue a visa? He mentioned sending the passport a week or 2 before the anniversary date, my only worry is if I send it too early and it is issued before Aug 25. I also don't want to send it too late, and have to wait 6-8 weeks for processing as I'm getting ready to tie up loose ends (car insurance, work etc).

Any advice would be greatly appreciated

[newacct 688]

This person is wrong on so many points. First, you definitely do get an IR-1 green card if you enter after the 2nd anniversary, even if you enter on a CR-1 visa.

https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-11685/0-0-0-11691.html

Note:
It is extremely important that inspectors and adjudicators be very conscious of the date of the marriage at the time the alien is admitted or adjusted. It is not unusual for an alien to be issued a conditional resident immigrant visa by a consular officer shortly before the second anniversary, but to apply for admission after that second anniversary. Likewise, an applicant for adjustment might file a Form I-485 (or even be interviewed regarding such application) prior to the second anniversary, but not be g ranted adjustment until after that second anniversary. In such cases, the alien should be admitted, or adjusted, without conditions (see 8 CFR 235.11(b) regarding the authority of inspectors to amend the visa classification on an immigrant visa in such situations).

Second, if you entered before your 2nd anniversary, and thus became a conditional permanent resident, you would not be "well into the 90-day period" for ROC -- the 90 day period for ROC is the 90 days before you have been a permanent resident for 2 years -- i.e. you have to wait another almost 2 years after you enter before you would do ROC. This person may be incorrectly thinking that the ROC's 90 days is based on the 2nd anniversary of marriage, which it is not.

Edited July 22, 2016 by newacct

[teama&a 3]

This person is wrong on so many points. First, you definitely do get an IR-1 green card if you enter after the 2nd anniversary, even if you enter on a CR-1 visa.

https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-11685/0-0-0-11691.html

Second, if you entered before your 2nd anniversary, and thus became a conditional permanent resident, you would not be "well into the 90-day period" for ROC -- the 90 day period for ROC is the 90 days before you have been a permanent resident for 2 years -- i.e. you have to wait another almost 2 years after you enter before you would do ROC. This person may be incorrectly thinking that the ROC's 90 days is based on the 2nd anniversary of marriage, which it is not.

WOW...ok I had no idea, that was my intentions from the start was to take it and wait until after AUG 25, but he scared me out of that and said if I take the visa now I must move before the 25th, that being said should I just send them my passport back now since it may take another 6-8 weeks to process? And even if I get an issue date before the 25th of august then it's ok because as you mentioned i can enter on a CR1 and have it changed to an IR1

[Penguin_ie 5,996]

The CO was completely wrong, was that the actual CO who said that or some admin drone?

For starters, visas are usually valid 6 months so you could easily enter after your 2 year anniversary. Secondly, IF you'd get a 2 year greencard, you'd need to file for Removal of Conditions, NOT AOS, and would need to do so 2 years after you get the greencard, not 2 years after your wedding.

[teama&a 3]

yes this was the actual CO...the immigration officer who interviewed me...not the clerk who took my fingerprints etc...and he said it would be valid until my medical was valid (6 months) but that i would have issues at the port of entry if I were to go in with a CR1 after our 2 year anniversary...I believed this because it came directly from the officer, i would have otherwise just taken it and continued with my original plan to enter after aug 25

[Penguin_ie 5,996]

I can totally understand why you believed him, and am a bit shocked he advised you so wrongly!

Perhaps have the US citizen spouse call and ask them to issue the visa now?

[teama&a 3]

I am planning on sending my passport back to the embassy tomorrow, hopefully it wont be a 6-8 week wait as the website says. We were planning to move at the end of August/ start of September...I hope this doesn't hinder it too much