Return to US after denial i 751

[Marloon 3]

Hi! Im a December 2016 filler. It seems like majority of December fillers got their approval, however mine in still pending. I have not filled n 400 so not sure why my case left behind. They still working on December 2016 cases so I’m trying to stay optimistic. 

I planned a trip with my family in 10 days and I thought that based on my timeline calculations I should be good to go with a green card in my hand, but here I am still waiting. 

It started to kick my anxiety and I question if I filled out the petition right? If I put all the right signatures? Or maybe something is wrong with my documents - never ending torture of second thoughts. 

Now I need to travel internationally and it would tear my heart apart if I’ll cancel this family trip due to my anxiety and uncertainty about my I 751 situation. 

Even though I try to stay positive, I have to prepare for the worst and know all my options. 

Prior creating this thread I did my due diligence and search everywhere for the information I’m looking for but there is not much clarity on it.

Here is my questions: 

1) What are the possible reasons for a straight up denial of petition without RFE and interview? How realistic my fear of such outcome? 

2) If a denial does happen and I’m away, it seems like my residency is terminated and I won’t be able to enter the country as a resident? But what about popular belief that only judge can terminate your residency status? 

3) Would I have a chance to be paroled In and wait for the court? 

4) Am I just driving myself totally nuts and my fears are not realistic?   (I couldn’t find any case where i751 got a straight denial while away and petitioner couldn’t get in) 

At the top of that I’m going through depression and seems like loosing the ability to think rational.

 

Dear VJ community please help me to sort it out as I’m currently biting my elbows instead of packing a suitcase in excitement of going on this family trip I have been waiting for so long. 

[GreatDane 366]

I think you are worrying way more than necessary. Plus, I've seen them calling in most people for interviews lately. Go on your trip and enjoy. If it's a long one, have someone checking your mail to see whether you receive any notifications and make sure you are up to date on your I551 stamp.

I understand how annoying it can be to wait. We're waiting from August 2016 (applied for N400 in July).

Edited June 23, 2018 by GreatDane

[Marloon 3]

17 minutes ago, GreatDane said:

I think you are worrying way more than necessary. Plus, I've seen them calling in most people for interviews lately. Go on your trip and enjoy. If it's a long one, have someone checking your mail to see whether you receive any notifications and make sure you are up to date on your I551 stamp.

I understand how annoying it can be to wait. We're waiting from August 2016 (applied for N400 in July).

Thank you for reply! 

In December 2016 thread majority of people got approved already without the interview, I believe those who still waiting have applied to n 400 like yourself and pretty much just waiting for a local office to set up an interview. I have not filed n 400 so it makes me worry what’s holding off my petition and kind of have to be aware of all possible outcomes such as if I’ll be paroled in if I’ll get a denial while away...

[mindthegap 2,590]

1) Chances of a straight out denial without an RFE and/or interview are very low.

 

2) It isn’t popular belief, it is the law. 

Even with a denial letter, you remain a LPR until termination of status by an immigration judge. You are entitled to proof of status until a hearing (case law backs this up), and you can file as many I-751’s as you like until a final order of removal by a immigration judge, and these must be adjudicated by USCIS, which wouldn’t be possible if your status was terminated immediately upon denial. 

The denial letter may well state this (mine certainly did), but it is legally wrong. Do USCIS care? Not one bit.

 

3) You would be admitted as a LPR.

The question I was asked when they ran my denied receipt number at a POE ‘have you received a notice to appear or any letter from the court ?’ to which my answer was no. Stamped in as normal (ARC).

Note that I had filed a new I-751, and had a new receipt number, new extension later and new stamp to remove any ambiguity,  but I was still told that I would have been admitted on the original receipt number and stamp as a LPR.

 

4)Yes.

The process is stressful, and the wait long. 

As a LPR you are protected by laws, and you will drive yourself mad with worry (been there, done that).

 

 

 

Edited June 23, 2018 by mindthegap

[Name O Boy 511]

Hi there, I understand your anxiety but you are thinking too much. How can you assume you would be denied? USCIS would never deny someone without an RFE or an interview. They give you at least 90 days to respond to RFE. Interview notice is given a month in advance. There are many applicants like you who are still waiting. If you have an I-551 stamp you can travel and you are a permanent resident with a pending I-751. You should enjoy your vacation and everything will be fine. Who knows you might be approved before your vacation, best wishes. 

[Marloon 3]

23 hours ago, mindthegap said:

1) Chances of a straight out denial without an RFE and/or interview are very low.

 

2) It isn’t popular belief, it is the law. 

Even with a denial letter, you remain a LPR until termination of status by an immigration judge. You are entitled to proof of status until a hearing (case law backs this up), and you can file as many I-751’s as you like until a final order of removal by a immigration judge, and these must be adjudicated by USCIS, which wouldn’t be possible if your status was terminated immediately upon denial. 

The denial letter may well state this (mine certainly did), but it is legally wrong. Do USCIS care? Not one bit.

 

3) You would be admitted as a LPR.

The question I was asked when they ran my denied receipt number at a POE ‘have you received a notice to appear or any letter from the court ?’ to which my answer was no. Stamped in as normal (ARC).

Note that I had filed a new I-751, and had a new receipt number, new extension later and new stamp to remove any ambiguity,  but I was still told that I would have been admitted on the original receipt number and stamp as a LPR.

 

4)Yes.

The process is stressful, and the wait long. 

As a LPR you are protected by laws, and you will drive yourself mad with worry (been there, done that).

 

 

 

Wow, thank you for such detailed and optimistic reply! 

I did drove myself crazy because prior creating a thread I read answers on a similar questions from the lawyers on Avvo, and it freaked me out. Here is a few quotes from the lawyers: 

 

“Yes, a denial of your I-751 would terminate the one-year extension. Take a look at the first paragraph of the receipt Notice for the I-751 where is says that it extends your status for one year - right after this, it says that the extension does not apply if your conditional status has been terminated, and a denial would terminate this status” 

—

“However, IF a decision is made to deny your I-751 while you are outside the USA you will not be admitted back into the USA until you challenge the decision and prevail. I suggest you sit tight.”

—

 

“If your I-751 is denied while you are abroad you would face some practical problems. While there are some legal arguments that you should be allowed to enter the US to challenge the denial, it is difficult to make legal arguments at the border. The border officers may not admit you and this could make your case more difficult. I would strongly recommend that you not travel outside the US until you receive a decision on your application.”

 

—

 

“If petition is denied while you are abroad, the place in which you will be staying abroad will immediately change it status from a temporary dwelling into more permanent abode...“

—

 

“If you travel out, there is a good chance you may not be readmitted. When your I-751 was denied, your lawful permanent resident status ended.”

 

 

So as you see, lawyers are pretty much agreed that status is going to get terminated immediately after denial and it might be a hit or miss situation to explain CBP about the right to attend the hearing? This is what makes me feel the way I do... 

 

 

 

[Marloon 3]

On 6/23/2018 at 2:14 PM, Name O Boy said:

Hi there, I understand your anxiety but you are thinking too much. How can you assume you would be denied? USCIS would never deny someone without an RFE or an interview. They give you at least 90 days to respond to RFE. Interview notice is given a month in advance. There are many applicants like you who are still waiting. If you have an I-551 stamp you can travel and you are a permanent resident with a pending I-751. You should enjoy your vacation and everything will be fine. Who knows you might be approved before your vacation, best wishes. 

Hi! I just started questioning if I filled out my petition right or if there is any problem with the way I submitted it because i filled without lawyer and I’m one of a very few people who left behind. Are you sure there is no possibility to get a straight up denial without RFE or interview? Such a gray area ...

[Name O Boy 511]

5 minutes ago, Marloon said:

Hi! I just started questioning if I filled out my petition right or if there is any problem with the way I submitted it because i filled without lawyer and I’m one of a very few people who left behind. Are you sure there is no possibility to get a straight up denial without RFE or interview? Such a gray area ...

I and many applicants filed without a lawyer and never had an issue. I have never come across someone who was denied after 1 year without an RFE or interview. Did you call the helpline? What did they tell you? 

[Marloon 3]

11 minutes ago, Name O Boy said:

I and many applicants filed without a lawyer and never had an issue. I have never come across someone who was denied after 1 year without an RFE or interview. Did you call the helpline? What did they tell you? 

They say I can put a service request as soon as I’m outside of normal proceeding but for now I’ll just have to wait when petition gets transferred to local office for the interview (or may not). When I asked what happens if I recieve a denial while out of country, I’ve been told “it’s a very interesting question, I recommend you to talk to a lawyer” - well that was Tier1. 

[Name O Boy 511]

2 minutes ago, Marloon said:

They say I can put a service request as soon as I’m outside of normal proceeding but for now I’ll just have to wait when petition gets transferred to local office for the interview (or may not). When I asked what happens if I recieve a denial while out of country, I’ve been told “it’s a very interesting question, I recommend you to talk to a lawyer” - well that was Tier1. 

They mostly don't have the right information. You are stressing for no reason. I am 100% sure everything will be okay for you. Who knows you might be approved next week or week after that since many December filers are already approved. I am very positive for you 

[mindthegap 2,590]

How legal do you want to get?

 

 

As I said before, you will drive yourself insane. Did you actually read my signature?

I myself received a denial. Still here. I have left and re-entered the US as a LPR, and remain a LPR with proof of that status. My N-400 and second I-751 are awaiting joint adjudication.

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

96-12 Status of a conditional permanent resident after denial of I-751 during pendency of review by EOIR
August 6, 1996 

Status of a Conditional Permanent
resident after denial of I-751 during
pendency of review by EOIR

Office of the
General Counsel

I. QUESTIONS

The Benefits Division requests a legal opinion concerning the following questions:
1) What is the status of a conditional permanent resident after his I-751 has been denied by the director and his case is under review by the EOIR? Is the alien entitled to an I-551 stamp, adapted to show that his case is pending? Is the alien entitled to any other benefits associated with legal permanent resident status?

2) If an Order to Show Cause has not been issued, what is the alien's status and what documentation is the alien entitled to possess?
II. SUMMARY CONCLUSION

The director should issue the Order to Show Cause at the time he or she provides written notice to the alien of the decision to deny the Form I-751.

Strictly speaking, a conditional permanent resident whose Petition to Remove Conditions on Residence (Form I-751) has been denied by the director is no longer a lawful permanent resident, as of the date of the director's notice of termination. However, because the alien has a right under statute and regulation to request review of such determination in deportation proceedings, the conditional permanent resident whose status has been terminated should be issued a temporary I-551 during the pendency of such review. INS should not approve any Petition for Alien Relative (Form I-130) filed by the alien on behalf of another alien during the pendency of such proceedings.

III. ANALYSIS

Section 216 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1186a, provides that an alien spouse who is granted permanent resident status by means of marriage to a United States citizen which took place less than two years earlier shall be granted such status on a conditional basis. Unless otherwise specified by the statute or regulations, an alien granted permanent resident status pursuant to section 216 enjoys the same rights, privileges, responsibilities, and duties as other legal permanent residents. 8 C.F.R. § 216.1

The conditional basis of residence is removed via the approval of a Petition to Remove the Conditions on Residence (Form I-751) filed by the alien and spouse within 90 days before the second anniversary of the date on which the alien obtained lawful admission for permanent residence. The director of the regional service center has been delegated sole authority to adjudicate the Form I-751. 8 C.F.R. § 216.4(c). Where the director finds derogatory information pertaining to the validity of the marriage, he or she must offer the alien the opportunity to rebut such information. Id. If the alien is unable to overcome such derogatory information, the director ''may deny the joint petition, terminate the alien's permanent residence and issue an order to show cause to initiate deportation proceedings.'' Id. (emphasis added). Moreover, if the director proceeds to deny the Form I-751, he or she must provide written notice specifying the basis for the denial to the alien ''and shall issue an order to show cause why the alien should not be deported from the United States.'' 8 C.F.R. § 216.4(d)(2) (emphasis added). This regulatory language clearly provides that once the director denies the joint petition and terminates the alien's permanent residence, an order to show cause must follow.

The regulations further specify that the alien's lawful permanent residence status is terminated as of the date of the director's written decision. 8 C.F.R. § 216.4(d)(2). As of the date of denial, the alien is ''instructed to surrender any Alien Registration Receipt Card previously issued by the Service.'' Id. Accordingly, an alien whose Form I-751 has been denied has no status as a conditional permanent resident and is not entitled to an Alien Registration Receipt Card. Therefore, in light of the termination date of an alien's lawful permanent residence, and the gap that ensues if an order to show cause is not issued, failure to timely issue the order to show cause leaves INS vulnerable should an alien file an action in mandamus to compel performance of that requirement.

Concomitantly, an alien whose Petition to Remove Conditions on Residence has been denied by the director may seek review of the decision in deportation proceedings. INA § 216(c)(3)(D), 8 U.S.C. § 1186a(c)(3)(D), 8 C.F.R. § 216.4(d)(2). In fact, the statute specifically conditions termination of permanent resident status upon review in deportation proceedings. 1 Therefore, the terminated conditional lawful permanent resident should be issued a temporary Form I-551, during the pendency of the deportation proceedings. Cf. Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991)(''To revoke an LPR's green card pending completion of the deportation process would severely undermine the integrity of the process itself and impose significant hardship on the alien involved''). To that end, the INS' policy of placing an I-551 stamp on an alien's I-94 arrival card or passport is considered appropriate temporary evidence of legal permanent resident status during the duration of the deportation proceedings. Memorandum from James J. Hogan, INS Executive Associate Commissioner (Nov. 11, 1992), reported and reproduced in 69 Interpreter Releases 1560 (Dec. 14, 1992). Further, the temporary I-551 may be used to travel, to establish employment eligibility, or to establish lawful permanent resident status for purposes of obtaining school financial aid and other benefits.

However, because an alien whose Petition to Remove Conditions on Residence has been denied by the director is, strictly speaking, no longer a lawful permanent resident, the Service should not approve any Form I-130 filed by such an alien after issuance of the termination notice, but before resolution of the deportation proceeding. 8 C.F.R. § 216.4(d)(2). Nonetheless, as final termination of the alien's lawful permanent resident status is subject to review of the director's decision in deportation proceedings, we advise that if an alien in this situation does seek to file a Petition for Alien Relative, the Service should accept the petition as filed, but not adjudicate it pending conclusion of the deportation proceeding. Thus, if the alien recovers lawful permanent resident status in the deportation proceeding, the Form I-130 could be approved based on the priority date established when filed. Similarly, should the alien prevail before the immigration judge, the restoration of lawful permanent resident status would relate back to the date of termination. Thus, the period from the date of the director's notice of termination and the date of restoration of status would count as time accrued for purposes of eligibility for naturalization. Cf. INA § 216(e), 8 U.S.C. § 1186a(e).

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

Also: 

 

Taken from USCIS  https://www.uscis.gov/sites/default/files/files/pressrelease/CRwaiver041003.pdf

"If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12)."

 

[Marloon 3]

3 hours ago, mindthegap said:

How legal do you want to get?

 

 

As I said before, you will drive yourself insane. Did you actually read my signature?

I myself received a denial. Still here. I have left and re-entered the US as a LPR, and remain a LPR with proof of that status. My N-400 and second I-751 are awaiting joint adjudication.

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

96-12 Status of a conditional permanent resident after denial of I-751 during pendency of review by EOIR
August 6, 1996 

Status of a Conditional Permanent
resident after denial of I-751 during
pendency of review by EOIR

Office of the
General Counsel

I. QUESTIONS

The Benefits Division requests a legal opinion concerning the following questions:
1) What is the status of a conditional permanent resident after his I-751 has been denied by the director and his case is under review by the EOIR? Is the alien entitled to an I-551 stamp, adapted to show that his case is pending? Is the alien entitled to any other benefits associated with legal permanent resident status?

2) If an Order to Show Cause has not been issued, what is the alien's status and what documentation is the alien entitled to possess?
II. SUMMARY CONCLUSION

The director should issue the Order to Show Cause at the time he or she provides written notice to the alien of the decision to deny the Form I-751.

Strictly speaking, a conditional permanent resident whose Petition to Remove Conditions on Residence (Form I-751) has been denied by the director is no longer a lawful permanent resident, as of the date of the director's notice of termination. However, because the alien has a right under statute and regulation to request review of such determination in deportation proceedings, the conditional permanent resident whose status has been terminated should be issued a temporary I-551 during the pendency of such review. INS should not approve any Petition for Alien Relative (Form I-130) filed by the alien on behalf of another alien during the pendency of such proceedings.

III. ANALYSIS

Section 216 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1186a, provides that an alien spouse who is granted permanent resident status by means of marriage to a United States citizen which took place less than two years earlier shall be granted such status on a conditional basis. Unless otherwise specified by the statute or regulations, an alien granted permanent resident status pursuant to section 216 enjoys the same rights, privileges, responsibilities, and duties as other legal permanent residents. 8 C.F.R. § 216.1

The conditional basis of residence is removed via the approval of a Petition to Remove the Conditions on Residence (Form I-751) filed by the alien and spouse within 90 days before the second anniversary of the date on which the alien obtained lawful admission for permanent residence. The director of the regional service center has been delegated sole authority to adjudicate the Form I-751. 8 C.F.R. § 216.4(c). Where the director finds derogatory information pertaining to the validity of the marriage, he or she must offer the alien the opportunity to rebut such information. Id. If the alien is unable to overcome such derogatory information, the director ''may deny the joint petition, terminate the alien's permanent residence and issue an order to show cause to initiate deportation proceedings.'' Id. (emphasis added). Moreover, if the director proceeds to deny the Form I-751, he or she must provide written notice specifying the basis for the denial to the alien ''and shall issue an order to show cause why the alien should not be deported from the United States.'' 8 C.F.R. § 216.4(d)(2) (emphasis added). This regulatory language clearly provides that once the director denies the joint petition and terminates the alien's permanent residence, an order to show cause must follow.

The regulations further specify that the alien's lawful permanent residence status is terminated as of the date of the director's written decision. 8 C.F.R. § 216.4(d)(2). As of the date of denial, the alien is ''instructed to surrender any Alien Registration Receipt Card previously issued by the Service.'' Id. Accordingly, an alien whose Form I-751 has been denied has no status as a conditional permanent resident and is not entitled to an Alien Registration Receipt Card. Therefore, in light of the termination date of an alien's lawful permanent residence, and the gap that ensues if an order to show cause is not issued, failure to timely issue the order to show cause leaves INS vulnerable should an alien file an action in mandamus to compel performance of that requirement.

Concomitantly, an alien whose Petition to Remove Conditions on Residence has been denied by the director may seek review of the decision in deportation proceedings. INA § 216(c)(3)(D), 8 U.S.C. § 1186a(c)(3)(D), 8 C.F.R. § 216.4(d)(2). In fact, the statute specifically conditions termination of permanent resident status upon review in deportation proceedings. 1 Therefore, the terminated conditional lawful permanent resident should be issued a temporary Form I-551, during the pendency of the deportation proceedings. Cf. Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991)(''To revoke an LPR's green card pending completion of the deportation process would severely undermine the integrity of the process itself and impose significant hardship on the alien involved''). To that end, the INS' policy of placing an I-551 stamp on an alien's I-94 arrival card or passport is considered appropriate temporary evidence of legal permanent resident status during the duration of the deportation proceedings. Memorandum from James J. Hogan, INS Executive Associate Commissioner (Nov. 11, 1992), reported and reproduced in 69 Interpreter Releases 1560 (Dec. 14, 1992). Further, the temporary I-551 may be used to travel, to establish employment eligibility, or to establish lawful permanent resident status for purposes of obtaining school financial aid and other benefits.

However, because an alien whose Petition to Remove Conditions on Residence has been denied by the director is, strictly speaking, no longer a lawful permanent resident, the Service should not approve any Form I-130 filed by such an alien after issuance of the termination notice, but before resolution of the deportation proceeding. 8 C.F.R. § 216.4(d)(2). Nonetheless, as final termination of the alien's lawful permanent resident status is subject to review of the director's decision in deportation proceedings, we advise that if an alien in this situation does seek to file a Petition for Alien Relative, the Service should accept the petition as filed, but not adjudicate it pending conclusion of the deportation proceeding. Thus, if the alien recovers lawful permanent resident status in the deportation proceeding, the Form I-130 could be approved based on the priority date established when filed. Similarly, should the alien prevail before the immigration judge, the restoration of lawful permanent resident status would relate back to the date of termination. Thus, the period from the date of the director's notice of termination and the date of restoration of status would count as time accrued for purposes of eligibility for naturalization. Cf. INA § 216(e), 8 U.S.C. § 1186a(e).

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

Also: 

 

Taken from USCIS  https://www.uscis.gov/sites/default/files/files/pressrelease/CRwaiver041003.pdf

"If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12)."

 

Thank you, I had to read it several times as it’s a bit complicated legal matter for my understanding. This is how I took it: once denied, they must issue Order to Show cause ( deparation hearing) and while applicant is waiting for a resolution he’s entitled to get a temporary i551 stamp. But what if he’s already have one? Would denial void it and he needs to re apply for it on a basis of different circumstances? 

 

I did read your timeline, that’s a mess and I’m sorry you dealing with this! But as you said at previous post, you traveled back to US after denial in a possession of a new i751 petition, are you sure they would still let you in if you only had a denied petition without having a new one in process? 

 

In in this article it keeps saying about not being a lawful permanent resident after denial (“However, because an alien whose Petition to Remove Conditions on Residence has been denied by the director is, strictly speaking, no longer a lawful permanent resident”....) so while it’s pretty clear what to do about  the denial decision ( New petition,  Departation court) it’s not really outlined on what status one could be admitted if he’s showing up at the border with just a denied case without having a new petition pending like it was in your case. 

Like, I read threads here and experienced myself that some border protection officers is less familiar with extensions letters than others, but what if they see a denial at computer screen and a note about LPR status being terminated, would they read memorandums at all? Tricky stuff! 

 

[Marloon 3]

4 hours ago, Name O Boy said:

They mostly don't have the right information. You are stressing for no reason. I am 100% sure everything will be okay for you. Who knows you might be approved next week or week after that since many December filers are already approved. I am very positive for you 

Tier 1 definitely not much help, I’ve been told opposite things before and kind of got used to take it with a grain of salt. Thank you for your kind words though, i appreciate it 

[little immigrant 801]

Did they cash your check? 

[Marloon 3]

23 minutes ago, little immigrant said:

Did they cash your check? 

Yes, 18 months ago ( December 2016 filler)