Status terminated, complicated case

[squeakyboots 2]

On 8/3/2017 at 2:04 PM, Damara said:

This is all very odd. Are you sure you filed for ROC on time? There is no such thing (that I know of) that states "your status is terminated thereafter because the marriage ended before the 2 years were up". 

 

Are you sure that was what the letter said? Do you still have the letter? Could you post it with your personal info edited out?

 

If you fail to file ROC (on time) your status can be terminated. If your marriage simply ended before the 2 year conditional period you dont automatically lose status. You have to file for ROC (either when you become eligible or when the 2 yr period is up). People do this everyday (file with divorce waivers) no one has ever posted that they lost status because the marriage ended before the 2 years was up.

 

You also mentioned your husband wrote a letter to USCIS accusing you of immigration fraud. This is also common but more often then not USCIS does not find fraud. If they did they could revoke your status however your letter from USCIS would have explained this as the reason.

 

I really hope you have the letter to post- I am quite curious about it.

 

But anyway- a lot of the things you are reading are correct in themselves but have no impact on your exact situation. You have to think of it as a flow chart or a tree. Where each question has a yes or no answer that moves you along the chart. Youre posting and reading snippets from the tree that are all correct but are not applicable to you based on the path you took.

 

Yes- a K can only adjust through the petitioner. Means nothing right now. Well actually it means to file a 485 it has to be with the petitioner. You are not with the petitioner- you are with another USC. So that means you need the new USC to file you a 130 making you eligible to file the 485. Understand? 

 

There are two routes this can go- one is fighting the original order that stripped your status, the other is to start fresh with a 130 and 485. 

 

Currently you have no status and are illegal. You need to file the forms. It seems your attny is not going to try to fight the whatever happened, but rather is just going to pursue a new legal route for you. (If your status was terminated because of fraud then you will have a hard time getting approved with your second marriage) So its important to know exactly why your status was terminated. 

 

You also may need a waiver to AOS depending on how long youve been considered out of status. You may also have to travel overseas to interview. Currently they have a process where you apply for everything in the US (130485-waiver) and get it all approved AND THEN you leave the US pretty much assured you are going to be able to come back. Since your marriage is over 2 years youd get the 10 yr card. 

 

If you fight the termination and win then you are back to being a K with adjustment through first husband and would have to file for ROC again. 

Hi Damara,

 

Thank you for your response. 

To answer your questions -- I did file the ROC on time. Unfortunately I do not have the letter (yet) - the IO read it to me and showed it to me at my interview. It was the letter that USCIS sent to me but I never received. From what I recall, it stated that my status had been terminated because I was unable to fulfill the conditions of my GC (my divorce before the 2 year mark). However, I have since seen my attorney and he will make a FOIA request so we can see everything in my file, including that letter. So, in fact, I am not certain why my status was terminated at this point. My attorney has said that none of it makes sense. He said that the IO didn't know what he was talking about and is clearly not aware of immigration laws. My attorney showed me an excerpt of a document of immigration laws where it showed that an I-751 can be filed at any time, and regardless of status. The IO was saying something like I wasn't eligible to file, and also that USCIS does not have jurisdiction over my case and my attorney is telling me the opposite. He has sent a letter to USCIS asking for some clarification because he doesn't understand what is going on. He is my attorney in this matter but he was not the attorney who accompanied me to my interview, so he wasn't present at the time of the interview (I wish he had been so he could have possibly sorted all this out on the spot).

 

Damara, the way you explained it is very good - yes I understand now that it is like a flow chart. Makes sense.

 

So right now - a letter has been sent (I hope, or will be sent) to USCIS regarding clarification on all this. I am not currently in Immigration court (my attorney checked), I have not received an NTA, USCIS has not yet even made a decision based on my interview. Attorney will send a FOIA request, and has suggested I file a I-130 and I-485 (together if possible). That's the present situation. My thoughts are -- since everything is so jumbled up, perhaps I should just wait for USCIS to respond to the letter and take it from there. Because a FOIA request will set me back $500, the I-751 and I-485 roughly $500 and $1k respectively, not to mention attorney's fees...It's a lot of money and it's not exactly like we're swimming in it. At the same time, I don't want to risk simply waiting and not filing anything. I am on the fence at this point.

[Villanelle 4,122]

7 minutes ago, squeakyboots said:

Hi Damara,

 

Thank you for your response. 

To answer your questions -- I did file the ROC on time. Unfortunately I do not have the letter (yet) - the IO read it to me and showed it to me at my interview. It was the letter that USCIS sent to me but I never received. From what I recall, it stated that my status had been terminated because I was unable to fulfill the conditions of my GC (my divorce before the 2 year mark). However, I have since seen my attorney and he will make a FOIA request so we can see everything in my file, including that letter. So, in fact, I am not certain why my status was terminated at this point. My attorney has said that none of it makes sense. He said that the IO didn't know what he was talking about and is clearly not aware of immigration laws. My attorney showed me an excerpt of a document of immigration laws where it showed that an I-751 can be filed at any time, and regardless of status. The IO was saying something like I wasn't eligible to file, and also that USCIS does not have jurisdiction over my case and my attorney is telling me the opposite. He has sent a letter to USCIS asking for some clarification because he doesn't understand what is going on. He is my attorney in this matter but he was not the attorney who accompanied me to my interview, so he wasn't present at the time of the interview (I wish he had been so he could have possibly sorted all this out on the spot).

 

Damara, the way you explained it is very good - yes I understand now that it is like a flow chart. Makes sense.

 

So right now - a letter has been sent (I hope, or will be sent) to USCIS regarding clarification on all this. I am not currently in Immigration court (my attorney checked), I have not received an NTA, USCIS has not yet even made a decision based on my interview. Attorney will send a FOIA request, and has suggested I file a I-130 and I-485 (together if possible). That's the present situation. My thoughts are -- since everything is so jumbled up, perhaps I should just wait for USCIS to respond to the letter and take it from there. Because a FOIA request will set me back $500, the I-751 and I-485 roughly $500 and $1k respectively, not to mention attorney's fees...It's a lot of money and it's not exactly like we're swimming in it. At the same time, I don't want to risk simply waiting and not filing anything. I am on the fence at this point.

You are in a tough situation.

 

Ideally you should do both (file the new forms and get the foia). If you have to choose then I would file the new forms. There is also a clause in USCIS (which Ive never seen enforced but it may be what you fell into) where when you ROC with a divorce waiver you have to be able to demonstrate the marriage failing was not "your fault". Id have to search for the exact wording but basically a no fault divorce or a spouses at fault divorce is fine. Its what most people do. However if the divorce was done and YOU were assigned fault USCIS can hold it against you. Bonafide marriage entered into in good faith. Its the good faith part. Having a divorce with you at fault can make them believe you didnt have good faith when you entered it.

 

Heres a basic article that talks about it. Perhaps discuss this with your attny. If this is what happened to  you then first I am sorry and second it shouldnt have any impact on a new 130 and 485 especially due to how long youve been married.

 

DId you include a statement with your ROC outlining what happened in the breakdown of the marriage? 

http://www.nolo.com/legal-encyclopedia/how-can-i-protect-my-immigration-status-divorce-if-i-m-still-conditional-resident.html

 

[squeakyboots 2]

CORRECTION:

Sorry - attorney showed me not that the ROC can be filed at any time but that it can be filed multiple times.

[Villanelle 4,122]

"The good faith waiver requires that the qualifying marriage was entered into in good faith by the alien spouse, that the alien was not at fault in failing to meet the requirement of filing the joint petition, and that the qualifying marriage was terminated other than by the death of the petitioning spouse."

 

 

[Villanelle 4,122]

(2) Application for waiver based upon the alien's claim that the marriage was entered into in good faith . In considering whether an alien entered into a qualifying marriage in good faith, the director shall consider evidence relating to the amount of commitment by both parties to the marital relationship. Such evidence may include -- 

(i) Documentation relating to the degree to which the financial assets and liabilities of the parties were combined; 

(ii) Documentation concerning the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence; 

(iii) Birth certificates of children born to the marriage; and

(iv) Other evidence deemed pertinent by the director. 

 

From USCIS.

 

(sorry to post so many times I was just trying to google it and find the applicable section. https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-22009/0-0-0-22063.html)

 

[Villanelle 4,122]

4 minutes ago, squeakyboots said:

CORRECTION:

Sorry - attorney showed me not that the ROC can be filed at any time but that it can be filed multiple times.

Yes thats true. But the good news if there is any to be found is since your ROC was technically denied you are able to file a new 130 packet. If it was still pending or incomplete you wouldnt be able to file the 130 youd have to complete the ROC process. You are off the ROC path it seems so you are good to file the 130 and it should be approved with out too much hassle.

[squeakyboots 2]

Damara, thank you for the links. My divorce was finalized by a judge and we went to trial. It was based on irreconcilable differences (or the equivalent). No one was found at fault. And yes, I included a very detailed account of everything - from how we met, our 3 year relationship prior to being married, the duration of the marriage and ultimate divorce. USCIS has all the information they need. The problem is it seems like no one is actually reading it, hence the "confusion". I am really not sure.

 

The second link you provided reminded me of something the IO mentioned in my interview. In my first ROC I checked one box, and in my second ROC I checked another (divorce / battery, not sure in which order). The IO said I wasn't able to do that, but my atty stated that that was untrue, and that more than one box can be checked. In my situation, it was in fact both - a bona fide marriage ending in divorce and battery. It was the abuse that led to the divorce. The marriage was bona fide, we had been together for 3 years and had a child together. There was no fraud involved.

 

If the I-130 is approved (which my atty believes it will be) that only paves the way for an I-485 -- and it is this AOS which needs to be approved for me to finally obtain a GC, right? Only then will all this be over, unless USCIS comes up with something sooner, based on everything that's been submitted thus far, since no decision has been made yet (so strange).

 

So, you think it's best to go ahead and do the FOIA and file everything else? Is there a time frame in which I'm supposed to do this? And if I go the second route (I-130 and I-485) all the K1 mess goes away?

[Villanelle 4,122]

Hopefully someone else will come along and comment. But heres how I see it.  It helps to think of the process as a path. Once you get on a path you have to see it through to completion. So for the K path you got the visa, you came to the US, you filed the 485 and got a conditional GC. The next stop on that path is ROC. You have to either complete ROC (approved), complete ROC (denied) or surrender the GC. You cant get off that path with out doing one of those 3 things. You were denied. So you are technically off that path and can start a new path being filing the 130+485 packet. You will get an unconditional 10 yr card on this path so ROC doesnt apply. Its just file and get approved and then renew the card every 10 years (or apply for citizenship when applicable)

 

The FOIA would come in handy because it will show why you were denied ROC. If there was a finding of fraud on your part it will make it harder for you to get approved on the new path. However the word fraud was never mentioned by the Officer so its unlikely there is a finding of such. It may also come in handy if you are choosing to fight the decision. It may be too late at this point to argue about it though and would probably cost you more in attny fees to appeal then a new petition would cost.

 

Do you not have copies of the previous ROCs you sent in anymore? This is just speculation but I suspect you filed under extreme cruelty (battery/abuse) waiver first and then your second one was a divorce waiver only. Often people file under abuse waiver and dont have enough evidence to support it. They get a complicated RFE back from USCIS stating the things they need to submit. When they realize they dont have it they can ASK USCIS to drop the waiver petition and allow them to "switch" to a divorce only waiver. Its up to USCIS to decide if you are allowed to do this switch. They can say no and if they do say no then you have to withdraw your abuse waiver petition and refile and pay new fees for a divorce waiver; which would be late at that point and ask for it to be accepted late.

 

It sounds like you got caught in some kind of technical paperwork glitch. Perhaps USCIS did not send you the RFE(s) they were suppose to or someone mishandled the paperwork, or just denied you on a technicality instead of giving you an option to fix it. Who knows? Well you will probably know if you do the FOIA. It sucks that its costly and time consuming to find out. Thats why I said if you can only afford one process do the new paperwork. 

 

If there was a problem with the old process like a finding of fraud or no good faith and it becomes an issue with the new petition you will know it. With the new process as long as it goes as it should, if they have an issue they will send you a notice to deny and give you a chance to address the issue. But Im of the opinion that if USCIS has officially denied your ROC and you are off that path then why rock the boat? You have another path that is open to you to use because of that denial. Why spend money arguing about how you were unjustly denied ROC if you can simply hop on a new path. 

[Sandra G. 5,048]

Damara  they issued the NTA but she  never got the mail. She  probably was placed in removal proceedings. She has to file a new one AOS. Probably will approve the I-130 BUT THEY CANNOT ADJUDICATE THE AOS because she is in removal proceedings.

 

Why did you say to file a waiver and attend interview abroad? . She is married to an American Citizen she can adjust Status here. She doesn't have to leave the Country. She came with K1 visa and got her GC through her marriage with the first husband.It does not apply to her case  the rule that she can  only seek adjustment of status based on her  marriage to the K1 petitioner 

 

Her attorney should contact the ICE counsel  to  file  Joint motion To Terminate  Removal Proceedings,when ICE agrees  to terminate removal proceedings the Judge will  terminate the  proceedings and USCIS will handle her AOS.

 

 

Edited August 21, 2017 by sandranj

[Villanelle 4,122]

41 minutes ago, sandranj said:

Damara  they issued the NTA but she  never got the mail. She  probably was placed in removal proceedings. She has to file a new one AOS. Probably will approve the I-130 BUT THEY CANNOT ADJUDICATE THE AOS because she is in removal proceedings.

 

Why did you say to file a waiver and attend interview abroad? . She is married to an American Citizen she can adjust Status here. She doesn't have to leave the Country. She came with K1 visa and got her GC through her marriage with the first husband.It does not apply to her case  the rule that she can  only seek adjustment of status based on her  marriage to the K1 petitioner 

 

Her attorney should contact the ICE counsel  to  file  Joint motion To Terminate  Removal Proceedings,when ICE agrees  to terminate removal proceedings the Judge will  terminate the  proceedings and USCIS will handle her AOS.

 

 

Thank you Sandra!

Squakyboots please listen to Sandra- she is an attny and knows exactly what she it talking about. I am not! Has your attny mentioned filing the motion Sandra mentioned? 

 

Its good to know she doesnt have to leave the country. I said she might because I didnt know if that rule did or did not apply to her. 

[Sandra G. 5,048]

She should file the AOS based on her current marriage.  Because she got married while in removal she must file the BONAFIDE MARRIAGE EXEMPTION. Most attorneys don't even know about it.