I-130 denied. Appeal or file new application

[hdrnut 3]

I'm a legal permanent resident, filed an I-130 petition for my wife in May 2016. Case was denied in June 2017. My lawyer believes that we have a very good chance of convincing USCIS/BIA (Board of Immigration Appeals) to reverse the decision.

We filed an appeal on July 14th 2017, a week ago. In the appeal, we indicated that - as an alternative - USCIS can treat this as a Motion to Reopen (MTR) . Given the existing evidence (original documentation filed in I-130 packet), new evidence and the brief, we believe that USCIS may reverse the decision without having to forward the case to the BIA.

 

My questions:

- Does USCIS (The service center's director, who made the original decision) actually review the appeals before forwarding them to BIA? Do they consider them for an MTR? 
I was under the impression that the answer is "Yes", until I talked to a tier 2 officer this morning, and the officer said that USCIS does NOT reopen I-130 case, and they forward the case to the BIA and I should expect to receive a new case number in the mail within 3 week. The officer confirmed that USCIS never considers I-130 case for a MTR (Motion to Reopen/Reconsider). Can anyone confirm?

- How long does USCIS take to review appeals before?
Again, I was under the impression that USCIS takes 60 days to review the appeal/make a decition; if they are not going to reverse the decision, they will forward the case to BIA.

 

- How long does BIA take to make a decision?
I understand that the answer is "It depends" ... I just want an average, people with similar cases (LPR appealing I-130) to give us some hope ... given that our original case took 13 months (average is 5 months).

 

- Would it be wise to file a new I-130, in addition to the appeal?

- If yes, What if both the new case and the appeal get approved, Do we got to keep our original priority date? 

 

Any help would be greatly appreciated.

 

PS: 

[Coco8 1,042]

Why did it get denied? At which stage? 

[milimelo 4,481]

Average may be 5 months but that's when a USC files it. When LPR files it it can take much longer simply because there's no rush and there will be waiting time for a visa number to become available. 

 

Now what was the reason I-130 was denied and why aren't you simply filing a new I-130? 

Edited July 23, 2017 by milimelo
Typo

[hdrnut 3]

15 hours ago, Coco8 said:

Why did it get denied? At which stage? 

We filed in May 2016, got an RFE in Nov of 2016. They asked for my final divorce certificate (of my prior marriage, my prior marriage/divorce happened years ago, before I became a LPR). It is worth mentioning that when I applied for I-485 I applied only for myself because my prior marriage has ended, and my ex was not living in the U.S.; It is also worth mentioning that my prior marriage and divorce took place overseas and they are both registered with the Civil Authorities in Egypt.

USCIS denied the application because they claim that the divorce certificate I submitted (which I did include in the original packet AND the RFE response) is not final, hence I was not "legally free" to marry my current wife. This is wrong, their understanding of Egyptian laws is flawed, to say the least.

I hired two attorneys, one in Egypt and one here, to put together the appeal. In the appeal, I included the following:
- A legal opinion letter from the attorney in Egypt - who specializes in Egyptian personal status and civil laws with 25+ years of experience - explaining Egyptian Civil Laws and confirming that the divorce is indeed final and that both my ex and I are legally free to marry.

- A brief - written by the Immigration attorney here in the U.S. - explaining the Egyptian Civil Law, referencing and highlighting different sections of the legal letter, Egyptian law, and the documents I have submitted. 

- A copy of the marriage record of my ex, who got married 6 moths ago to another man. This further proves that She and I were legally free to marry under Egyptian Civil Laws.

- A copy of the birth record of my wife's and I first child, a baby daughter born here in CA two months ago. (Yes, wife is in the U.S. on a visit/tourist visa which she had prior to us getting married ... she plans to leave before her I94 expires).

 

I mean, USCIS's denial is fundamentally flawed and they did not even consider sending a "Notice of Intent to Deny"!! Instead, they just denied the application after 13 months of waiting!

 

7 hours ago, milimelo said:

Average may be 5 months but that's when a USC files it. When LPR files it it can take much longer simply because there's no rush and there will be waiting time for a visa number to become available. 

 

Now what was the reason I-130 was denied and why aren't you simply filing a new I-130? 

According to the latest processing time chart for California Service Center, it take about 5 or 6 months for USCIS to make a decision on an I-130 case in F2A category (Permanent resident filling for a spouse or child under 21). I'm not talking about getting a visa. Once an I-130 case is approved we would need to wait for a visa to become available, I do understand that part very well.

 

Our priority date (for the case that just got denied) was May 2016. I'm appealing because we want to keep that priority date; If the case gets approved, a visa may become available as early as January 2018, which is not too far out.
If we refile, we would probably be looking at - at least - 2 years until a visa becomes available.

[Coco8 1,042]

Yes, I agree with you that appealing would be best because you can keep the priority date. I think you are doing it correctly by getting a lawyer.

 

On 7/21/2017 at 1:16 PM, hdrnut said:

 

- Would it be wise to file a new I-130, in addition to the appeal?

- If yes, What if both the new case and the appeal get approved, Do we got to keep our original priority date? 

 

My understanding is that you cannot file 2 petitions at the same time. So you have to wait for the appeal. 

 

How long do you have until you are a US citizen?

 

Edited July 23, 2017 by Coco8

[hdrnut 3]

41 minutes ago, Coco8 said:

My understanding is that you cannot file 2 petitions at the same time. So you have to wait for the appeal. 

I'm not sure about that. I have heard from many immigration lawyers that you actually can file a new application while an appeal is pending. Some claim that it's the "best strategy". In my case, I don't think filing a new application makes much sense, and that brings me to your question:

44 minutes ago, Coco8 said:

How long do you have until you are a US citizen?

I have been a LPR for 2 years, so, 3 more to go.

Filling a new I-130 application now means we would wait at least 2 more years before a visa becomes available, we might as well wait till I become a citizen and file it then.

[Coco8 1,042]

3 minutes ago, hdrnut said:

I'm not sure about that. I have heard from many immigration lawyers that you actually can file a new application while an appeal is pending. Some claim that it's the "best strategy".

I know from people on VJ that had one application and filed another one for the same person without withdrawing the first, that they were told they couldn't process one without withdrawing the other one. Both were for the same person. However, maybe you case is special because you are waiting for an appeal. The issue is that if your appeal is granted it will go to USCIS and if they have 2 petitions for you (the one that won the appeal and the other one you presented "just in case"), you might have to withdraw the second one for them to move forward with the first one. Withdrawing a petition takes a couple of months so your process would be at a standstill. You might want to find out about this. You could make an infopass appointment or call again to find out.

 

I am just telling you what I've read on VJ over the past months because I don't have first hand experience with something like what you are going through.

[hdrnut 3]

2 minutes ago, Coco8 said:

I know from people on VJ that had one application and filed another one for the same person without withdrawing the first, that they were told they couldn't process one without withdrawing the other one. Both were for the same person. However, maybe you case is special because you are waiting for an appeal. The issue is that if your appeal is granted it will go to USCIS and if they have 2 petitions for you (the one that won the appeal and the other one you presented "just in case"), you might have to withdraw the second one for them to move forward with the first one. Withdrawing a petition takes a couple of months so your process would be at a standstill. You might want to find out about this. You could make an infopass appointment or call again to find out.

 

I am just telling you what I've read on VJ over the past months because I don't have first hand experience with something like what you are going through.

 

I guess I'll just wait for the appeal; filing a new application does't make much sense any way. Moreover, if I decide to file a new application, I won't be able to provide USCIS with a "different" divorce certificate than the one they already have (in the case they denied), so I might end up down the same route again!

 

Now, can anyone help answering any of the appeal questions above ?

[Michael2017 368]

According to the latest processing time chart for California Service Center, it take about 5 or 6 months for USCIS to make a decision on an I-130 case in F2A category (Permanent resident filling for a spouse or child under 21). I'm not talking about getting a visa. Once an I-130 case is approved we would need to wait for a visa to become available, I do understand that part very well.

 

It currently takes about 1 year to get an approval for a I-130 not 5-6 months! Most visas are processed in California and they are working on August 2016 PD right now. 

[hdrnut 3]

8 hours ago, Michael2017 said:

According to the latest processing time chart for California Service Center, it take about 5 or 6 months for USCIS to make a decision on an I-130 case in F2A category (Permanent resident filling for a spouse or child under 21). I'm not talking about getting a visa. Once an I-130 case is approved we would need to wait for a visa to become available, I do understand that part very well.

 

It currently takes about 1 year to get an approval for a I-130 not 5-6 months! Most visas are processed in California and they are working on August 2016 PD right now. 

You are right, but when we filed back in May 2016, it was indeed 5 or 6 months.

[hdrnut 3]

I received NOA1 today with a new case number for EOIR-29 (the appeal), then I called USCIS to inquire about the appeal process, spoke to an IO who helped answer my questions above.

 

- Does USCIS (The service center's director, who made the original decision) actually review the appeals before forwarding them to BIA? Do they consider them for an MTR? 
Yes, USCIS will consider the appeal as a MTR. They have 60 days to review the entire case and of they decide not to reverse the original decision, they will forward the case to the BIA.

- How long does USCIS take to review appeals before?
USCIS takes 60 days to review the appeal/make a decition; if they are not going to reverse the decision, they will forward the case to BIA.

[hdrnut 3]

Posting an update so that it may help others, our case has finally been approved!

It only took 16 months, 2 RFEs, immigration lawyer, EOIR-29, and a messed up case status online tool for us to get an approval notice! 

Details:
Monday 09/11 10:20AM: Case Was Reopened. 

Monday 09/11  12:30PM: Case Was Approved. (Yay!)

Tuesday 09/12 9:30AM: Case Was Reopened. (What the!)

I called USCIS, got to L2 IO who confirmed that the case has been approved and approval notice was sent; when I asked about the online case status page, he said "Don't worry about it, you should receive the approval notice soon" and sure enough, we received the approval notice for our I-130 yesterday 09/14

 

I'm planning to post a detailed timeline of all events since day 1 that I think may be helpful to others.

 

On a separate - but very related - topic, we are planning on filing to Adjust Status in two weeks ... wait, what? ... let me explain.
I'm a Permanent Resident.

Wife has a B2 visa, she visited me multiple times and is currently in the U.S.

Our PD is MAY 2016
Visa Bulletin came out a couple of days ago, and the cut off date for "Dates for Filing" is 01NOV16
USCIS updated their charts today, and they announced that Family Sponsored applications should use the "Dates for Filing" to Adjust status.

Should we celebrate? Of course not!!!
Wife's current I94 expired in June. We filed for an extension of status (I-539) a month before it'd expired (with *very* valid reasons and *proper* documentation) and it was approved ... BUT we NEVER got the approval notice! 
Again, we checked USCIS online case status thingy for weeks, and it was "Case Received" or whatever ... it was only when we called USCIS, spoke to L2 who - again - confirmed that the case has been approved since late August ... we never received the I-797 approval letter.

For those who might not know what I-539 extension approval is like .. it's the normal "NOA" I-797 with a new I-94 attached to it. The new I-94 has a number, and new from/to dates ... basically an extension of stay for six months (or less).

Now, for us to be able to submit I-485 we must provide "Evidence of Continuously Maintaining a Lawful Status Since Arrival in the United States" ... and it's listed in I-485 instructions that such evidence may include, but is not limited to:
"Form I-797 approval notices for all extensions and changes of nonimmigrant status"

We know for sure that my wife's current stay *is* lawful, USCIS knows that the extension has been approved. The L2 officer we spoke to gave us the new "valid until" date over the phone, the extension is valid until early November.

We pretty much have everything we need to apply for AOS except for that I-797 that was never delivered.
We submitted a Service Request but who knows what the answer will be.
I read online that we need to submit for I-824 to request a "duplicate" of the approval notice, but it takes months (California Service Center currently processing April 1st 2017) for these forms to get processed.

This is one of a kind situation (just like our I-130, sigh!) ... any one been there before? 
Would it be sufficient to send a copy of I-797 receipt notice, along with an affidavit?  

[JackandRed 16]

Hello, My husband and I have a similar situation.  Our petition was revoked December 2017 due to not providing secondary evidence. As of January 19, 2017 we submitted the required evidence in our appeal. What are out chances of reconsideration/reapproval?

[JackandRed 16]

17 minutes ago, JackandRed said:

Hello, My husband and I have a similar situation.  Our petition was revoked December 2017 due to not providing secondary evidence. As of January 19, 2017 we submitted the required evidence in our appeal. What are out chances of reconsideration/reapproval?

I meant to say January 19, 2018. Sorry. 

[Zeegee 3]

I am in a same boat after long 16 month I called Uscis on November 21 they told me that my appeal is ordered to print out approved notice and today I received a latter which showing my old I 130 receipt no and priority date is same as old one and it’s sayijg your i130 reopen I don’t know what this all mean