N-400 denied after USCIS discovered withdrawal of I-129F years later

[Kiolas 103]

My N-400 was recently denied after USCIS discovered in their system withdrawal of I-129F.

 

When I still was in the country of my origin, my fiancé in response to RFE sent to USCIS withdrawal of I-129F during our breakup. Shortly after that I received approval of I-129F. Then my fiancé called USCIS about the withdrawal but 2 different representatives assured him that everything was OK and there was no withdrawal they could see in the system, they said they only see response to RFE (which was not correct, neither me nor fiancé sent any response to RFE, only withdrawal).

 

Since I-129F was approved, we continued with the process.

I came to U.S. on K-1 visa, received GC, filed for N-400.

 

I thought citizenship interview went well. During the interview the officer said she would require the original of a document (I only had a copy of the document during the interview) and she said I would receive RFE via mail.

 

She did not send RFE.

 

Two months after the citizenship interview I received a denial letter.

 

The denial letter says:

"The approval of any petition is automatically terminated when the petitioner dies or files a written withdrawal of the petition before the beneficiary arrives in the United States".

"Because the withdrawal predated the approval of your I-129F petition you are subject to the withdrawal regulation 8 CFR 103.2(b)(6)."

"Withdrawal may not be retracted."

"Because a withdrawal may not be retracted and may not be refused, USCIS cannot adjudicate a petition that has been withdrawn".

 

However, USCIS did adjudicate the petition in my case and now, years later, states that I was "not lawfully admitted for permanent residence" and, therefore, not eligible for citizenship.

 

I found in their manual the following:

"When the petition has been used, in effect, it no longer exists and the approval cannot be revoked. The appropriate course of action in that case is to institute deportation or rescission proceedings."

 

In my case, it seems like they are trying retroactively, without due process, to automatically revoke I-129F. However, per their own manual it cannot be revoked because it has been already used. Their only option is to deport me. However, how is it possible if I did not do anything wrong? 

 

I have 30 days to appeal - to file N-336. 

 

Any thoughts on how to appeal this?

If appeal gets denied, what is my option?

Should I go back to the country of origin and start the process from the scratch (with a difference that now I'm a spouse of the U.S. citizen and will be applying for visa CR1)? 

Is there any way to stay in the U.S. and try to file again for GC (perhaps, together with filing I-601A Application for Provisional Unlawful Presence)?

 

Thank you for your time!

 

 

 

 

   

Edited July 15, 2018 by Kiolas

[Lemonslice 4,836]

If there's anything to do, a lawyer wouldbe able to advise - not DIY situation in my opinion.  Carl Shusterman or another very competent lawyer. 

[canadian_wife 1,822]

Oh dear!  Have you actually gotten a deportation notice?

 

But yes, it is time to call a competent lawyer.  

 

Good luck 

[Kiolas 103]

3 minutes ago, canadian_wife said:

Oh dear!  Have you actually gotten a deportation notice?

 

No, I did not get deportation notice yet because I just received a denial letter. 

[Villanelle 4,122]

You need a lawyer. There are probono groups that may be able to help you if you can not afford an attny. 

 

If you choose not to seek out help from an attny try the other immigration site (immigrate2us) as they deal with complex matters, but an attny is your best bet. You are not going to be able to do anything about the revocation to be honest. But they can help you close out the current 129f-485 you are "on" properly and refile as a spouse (waiver needed) where you only need to leave the US for interview and dont have to wait out the whole process overseas.

 

Obviously do not leave the US right now.

[Nitas_man 3,100]

This is bad.  They will (try to) retroactively void all subsequent immigration benefits making your US presence illegal from the time you arrived.  Previous advice was correct.  You definitely need legal representation.  The good news is that you are likely to win but you're in for a bit of a fight through immigration court.

[CarlHamilton 252]

What do you mean without due process?  You can appeal, as you stated yourself, and if you get a notice to appear you can plead your case to a judge.  Lawyer up. 

[Teemo 252]

Are you still married to the fiance who petitioned you? What was the document they needed original of?

 

10 hours ago, Kiolas said:

Should I go back to the country of origin and start the process from the scratch (with a difference that now I'm a spouse of the U.S. citizen and will be applying for visa CR1)? 

Is there any way to stay in the U.S. and try to file again for GC (perhaps, together with filing I-601A Application for Provisional Unlawful Presence)?   

Definitely no to the first one. If they do in fact say all your time in the US has been unlawful presence, then leaving will trigger a 10 year ban for re-entry.

 

I imagine if your appeal fails you may get an NTA and the immigration judge is the one who would revoke your permanent residency and perhaps issue a removal notice. Actually there was recent news - bad news for you - that a denial of an immigration benefit would automatically lead to a removal notice.  Anyway, I'm hoping that well ahead of appearing in front of a judge you would be able to file an adjustment of status (AOS) application - for that, your illegal stay is forgiven and you don't need a waiver.  There are complications with this because of your issue, but bring this up as an option with your lawyer (you need one!) and see what s/he says. 

Edited July 16, 2018 by Teemo

[Kiolas 103]

35 minutes ago, Teemo said:

Are you still married to the fiance who petitioned you?

 

Yes.

[Kiolas 103]

I spoke to many attorneys (including free and paid consultations) and each of them had a different answer. I am very confused what to do.

• Some of them told me do nothing, wait for Immigration Judge to decide, if necessary -  file waiver(s). 
• One of the attorneys suggested to file I-130/I-485.
• Another attorney suggested to leave the U.S., return back to my country, file I-407 and then file I-130. However, he did not consider the fact that USCIS thinks that my K-1 visa was invalid when I entered the U.S. 

If USCIS thinks that my K-1 visa was invalid when I entered the U.S. as well as my conditional green card, is it possible to file I-130/I-485 now? I feel USCIS will deny. Am I wrong?

[Life_love 45]

So sorry about this, i can imagine how stressful and confusing all these can be.  So i am not lawyer but i would NOT advice anyone to leave at this point, i honestly think that would complicate issues further. Since youre still married to your spouse starting a new application for l 130 and l485 seems like the best thing to do with an attorney course. The old one while invalid cannot invalidate a new application with your spouse sponsoring you.

 

 

[Kiolas 103]

1 hour ago, Life_love said:

So sorry about this, i can imagine how stressful and confusing all these can be.  So i am not lawyer but i would NOT advice anyone to leave at this point, i honestly think that would complicate issues further. Since youre still married to your spouse starting a new application for l 130 and l485 seems like the best thing to do with an attorney course. The old one while invalid cannot invalidate a new application with your spouse sponsoring you.

 

 

Life_love,

thank you for your response.

 

I'm absolutely agree with you that I cannot leave the country. But that was what paid attorney suggested. Attorneys do not feel responsible for their advice. They tell lies just to get $$$. 

 

Right now I still have a conditional GC (until Immigration Judge decides otherwise). I just do not understand how is it possible to apply I-130/I-485 if USCIS thinks my entry was under invalid K-1 visa.

 

My understanding is that I can file any forms I want with USCIS. However, the filing will not change the USCIS position that I entered the country under invalid K-1 visa. Therefore, I will face removal proceedings. 

 

Yes, I can file I-130/I-485. But USCIS will deny. There is no way to escape removal proceedings. Please, explain if I'm wrong. 

 

 

[Teemo 252]

9 hours ago, Kiolas said:

Life_love,

thank you for your response.

 

I'm absolutely agree with you that I cannot leave the country. But that was what paid attorney suggested. Attorneys do not feel responsible for their advice. They tell lies just to get $$$. 

 

Right now I still have a conditional GC (until Immigration Judge decides otherwise). I just do not understand how is it possible to apply I-130/I-485 if USCIS thinks my entry was under invalid K-1 visa.

 

My understanding is that I can file any forms I want with USCIS. However, the filing will not change the USCIS position that I entered the country under invalid K-1 visa. Therefore, I will face removal proceedings. 

 

Yes, I can file I-130/I-485. But USCIS will deny. There is no way to escape removal proceedings. Please, explain if I'm wrong. 

 

 

I see a good chance for no removal. Saying that in hindsight your visa was not valid is not the same as unlawfully entered without inspection. So you entered lawfully and overstayed, amd overstay is forgiven to spouses of US Citizens. Apply away. That is, if you don't think they will reverse their decision. But how can you apply for I-485 until they revoke your green card? That is one of a number confusing aspects, but I believe you are not very likely to be removed. 

[Kiolas 103]

13 hours ago, Teemo said:

But how can you apply for I-485 until they revoke your green card? 

Exactly!

Can you imagine, this suggestion came from the attorney.

The attorneys lie just to rip off people who are in stress.

[Dee elle 1,368]

20 minutes ago, Kiolas said:

Exactly!

Can you imagine, this suggestion came from the attorney.

The attorneys lie just to rip off people who are in stress.

My sense is that this needs to go high enough in the system to get to the level where someone has the authority to fix their mess 

The officer who reviewed your N400 does not have the authority to ignore or remove the I129f withdrawal letter from your file. Once it was discovered he/she had to trigger a procedural action, no matter how wrong it may have seemed to him. The actions that have resulted as a consequence are consistent with their process.. I would think that no one below an Immigration judge has the authority to overrule the decisions. It will need to run its course.. and I hope that the outcome will be as it should be.. make sure your husband is in court with you !!!