DCF after I-130 filed in the US (pre-Adam Walsh)

[eagles 0]

Hi everyone. I filed an I-130 and I-485 (adjustment of status) for my Spanish husband in 2005. We were scheduled to have our interview in Garden City, NY in 2/2006. Before the interview there were concerns about a member of his family´s health, and he decided he just couldn´t stay in the US anymore. We moved to Spain in 12/2005, and I got my Spanish permanent residency in 1/2006.

Fast forward one year, and things are ok, and now we both want to move back. I went to the US Embassy in Madrid the first week of January, right before the Adam Walsh act, because they were still accepting petitions. They told me they wouldn´t accept my application because there was a pending I-130 in the US, and to have Garden City transfer my file to the Embassy. I sent a certified letter that same day regarding this request.

After a month, no response. A friend of a friend who is an immigration attorney wrote them, asking them the same thing, and if they couldn´t transfer it, to close the file (people on this board know alot more than so-called immigration attorneys – he wasn´t even aware of the Adam Walsh act!!!). No reply from NY.

I discovered this board in early March, learned about Adam Walsh, and resigned myself to the fact that I would have to sort everything out in the US, and it would possibly take up to 2 yrs). Then of course, DCF was allowed again.

But I´m still at square one, because on Case Status Online on the USCIS website, it reads that my I-130 and I-485 are “pending,” which is why the Madrid Embassy won´t accept my I-130. The Embassy told me to contact USCIS Rome, who said that I have to withdraw and start over again, that USCIS can´t transfer a pending petition to an embassy, only an approved one. But they wouldn´t confirm that I could use just the certified letter to Garden City as proof of withdrawal, that it was up to the individual embassy. I sent another certified letter to Garden City asking them to withdraw the applications and to close them on the system.

So here´s my problem: It´s now been about 6 weeks since I wrote USCIS asking them to withdraw my applications. No surprise, Garden City hasn´t replied and they haven´t closed the case online.

What do I do if Garden City just doesn´t respond?? I called the 1-800 number and they said only the local office could close it, they couldn´t do anything.

Any ideas? Thanks for any input.

[ribki 0]

Sorry to hear about your situation. I am certainly no immigration expert, but in some ways, our situation was similar. We filed our I-130 in March 2007 in the US even though I, a US citizen, live in Ukraine where my wife is from. When DCF returned, we too wanted to re-file DCF in Kyiv. The embassy here (at least whoever answers the email) told us we can't refile because we have a pending case in the US. I asked if we could withdraw and the person said that was possible but I would have to submit some kind of proof that it was withdrawn. I asked, "What kind of proof?" He said he didn't know because that was USCIS. I would have to talk to them.

Anyway, we refiled in Kyiv April 10 and I did "withdraw" our petition through a letter to USCIS but it still shows our case pending. When I filed our I-130 at the embassy, they didn't ask me anything about it even though I was very concerned about it. I know on another thread here at VJ the Tokyo embassy doesn't require you to withdraw the petition and I did find on the US Embassy website in India that they require proof that you sent a letter withdrawing the petition.

So it does seem that every embassy is handling this in slightly different ways. Many people have said the USCIS website is always/often not up to date so even if they did somehow withdraw your petition, it may not show on the computer for a long time.

Did you talk to the same person at the embassy each time? I know the Kyiv embassy sometimes gives conflicting information. I think Ukrainian staff answer the phone and email but the consulars are Americans and may have a slightly different view of things.

I might be completely wrong on this but another option is to just try to file the I-130 and hope the consular takes your registered letter as proof of withdrawal. But again, the person giving you information on the phone or email very well may not be the person who reviews your petition. Just a thought. It could also be a waste of money.

Edited April 14, 2007 by ribki

[iluvmymac 0]

Sorry to hear about your situation. I am certainly no immigration expert, but in some ways, our situation was similar. We filed our I-130 in March 2007 in the US even though I, a US citizen, live in Ukraine where my wife is from. When DCF returned, we too wanted to re-file DCF in Kyiv. The embassy here (at least whoever answers the email) told us we can't refile because we have a pending case in the US. I asked if we could withdraw and the person said that was possible but I would have to submit some kind of proof that it was withdrawn. I asked, "What kind of proof?" He said he didn't know because that was USCIS. I would have to talk to them.

Anyway, we refiled in Kyiv April 10 and I did "withdraw" our petition through a letter to USCIS but it still shows our case pending. When I filed our I-130 at the embassy, they didn't ask me anything about it even though I was very concerned about it. I know on another thread here at VJ the Tokyo embassy doesn't require you to withdraw the petition and I did find on the US Embassy website in India that they require proof that you sent a letter withdrawing the petition.

So it does seem that every embassy is handling this in slightly different ways. Many people have said the USCIS website is always/often not up to date so even if they did somehow withdraw your petition, it may not show on the computer for a long time.

Did you talk to the same person at the embassy each time? I know the Kyiv embassy sometimes gives conflicting information. I think Ukrainian staff answer the phone and email but the consulars are Americans and may have a slightly different view of things.

I might be completely wrong on this but another option is to just try to file the I-130 and hope the consular takes your registered letter as proof of withdrawal. But again, the person giving you information on the phone or email very well may not be the person who reviews your petition. Just a thought. It could also be a waste of money.

I'm one of those who refiled at the Tokyo embassy. Before deciding to go, we called the embassy to see if re-filing was possible. They also said that we would have to cancel the petition in CA, and then wait for USCIS to return our papers before re-filing. The Great And Powerful Oz (meauxna) posted to the thread that we could cancel, but don't expect USCIS to return anything. So how can you prove a cancelation? You could show them a copy of a letter that you supposedly sent to USCIS, but how can you prove that you really sent it?

But then we heard from others (on a Japanese discussion site) who re-filed and the embassy didn't say anything about their already pending petition. So we decided to chance it with nothing to lose except time (and train fare) spent going to the embassy.

They accepted our new petition with no problems. On page 2 of the I-130 there's a question that asks if you've ever filed a petition "for this or any other alien", so I answered yes with the details of my pending petition in CA. The consular staff person looked at that, smiled, and said "USCIS is taking a long time?" and I nervously said "Yes". He then only asked if I understood that I would have to pay the fee again. Nothing mentioned about cancelling the other petition.

BTW, 5 days after we went to the embassy, got the e-mail notification of approval on the petition in CA. But NVC is going to add a few more months to that process; we'll be in the US by then.

Edited April 15, 2007 by iluvmymac

[iluvmymac 0]

They accepted our new petition with no problems.

Tokyo embassy approved my I-130 on 4/12; only took 7 days.

Edited April 16, 2007 by iluvmymac

[ribki 0]

They accepted our new petition with no problems.

Tokyo embassy approved my I-130 on 4/12; only took 7 days.

That's great news! How did they notify you? Email? I hope we will have the same kind of luck... It's going to be 7 days tomorrow...

[iluvmymac 0]

They accepted our new petition with no problems.

Tokyo embassy approved my I-130 on 4/12; only took 7 days.

That's great news! How did they notify you? Email? I hope we will have the same kind of luck... It's going to be 7 days tomorrow...

They sent a letter by snail mail. The date of the letter and of the approval was 4/12, but I didn't get the letter until 4/16 (because of the weekend).

Edited April 16, 2007 by iluvmymac