Help desperately needed

[belinda63 3,041]

The letter clearly states any reasons as to why the I-751 was not filed can be presented in the deportation hearing. A date may not have been set but the letter states a hearing  can be held, I would assume if the alien does not self-deport. 

[Going through 5,671]

8 hours ago, mindthegap said:

and some chocolate (proper english dairy milk, natch,

No tins of Quality Street laying about?

 

Sighs..I miss QS.

[Cryssiekins 976]

10 minutes ago, Going through said:

No tins of Quality Street laying about?

 

Sighs..I miss QS.

Off topic but:  Canada sells Cadbury chocolate products.  My last job, at the law firm, I once brought in a box of Halloween size chocolate bars my mom had dropped of when she visited.  Oh boy - it was demolished in 10 minutes. 

 

After that every time I would go up north for a weekend, everyone had orders for me to bring them back Cadbury chocolate.  Also learned KitKats are made differently in Canada than the US.  You have not experienced life until you have a Canadian KitKat bar.

 

@mindthegap:  THANK YOU for sharing that information.  It was very interesting to learn about something I hope I never have the misfortune of experiencing. 

[Going through 5,671]

13 minutes ago, Cryssiekins said:

Off topic but:  Canada sells Cadbury chocolate products.  My last job, at the law firm, I once brought in a box of Halloween size chocolate bars my mom had dropped of when she visited.  Oh boy - it was demolished in 10 minutes. 

I know Canada sells them....I stock up each time I visit home.

That, and Presidents Choice sauces  

[JNSD 1]

11 hours ago, mindthegap said:

Right, I have had a cup of tea, and some chocolate (proper english dairy milk, natch, not that horrid hershey rubbish you get over here), so here is some potentially useful info for you. 

I suggest you also get a cup of tea, as this is a long one......

 

 

As one of the few on here who has unfortunately experienced a denial, and is still going through this hell in some form, I can offer the following advice, with the caveat that I am not an immigration attorney.

 

 

 

 

Firstly, don't panic. Yes it is a scary letter. I was a f***ing suicidal mess when I received one, and spent three days initially without any sleep whatsoever reading every single thing I could possibly find on the legalities of this stuff, which served me very well, and I can hopefully help you out now too, as I have learnt a lot more in the time since.

 

All is not as it appears... USCIS have no authority to formally terminate your status. Yes, you heard me. Only an immigration judge can formally terminate your LPR status, in court, and issue a final order of removal at which point your status is terminated for good. You currently remain a conditional LPR (with caveats). The law does sort of contradict itself in some respects, but between an I-75 denial and a final order of removal, you remain a LPR with the right to work.

You are also entitled to proof of status in the form of a stamp. This is backed up by case law and also clarification by USCIS and the EOIR as you will read below. DO NOT LEAVE THE US UNTIL YOU HAVE A STAMP - not Mexico, not Canada. You are in a world of hurt if you do so...and it will be a lot harder for you.

 

 

The general standard process of denial, and process for revocation of status and an order of removal is:

Denial letter (or notice of intent to deny) --> NTA (notice to appear in court)  ---> court date ----> upheld/overturned --> appeal if upheld --> final determination and final order of removal.

 

Now, an NTA can take years to appear. The immigration courts are so backlogged, and these cases are low priority vs asylum or other deportable or criminal aliens. So you could continue with this stamp for as long as necessary, but it is no way to live, so there are things you can and should do to protect yourself.

 

 

So, file an I-751. Prepare the I-751 exactly as you would normally, filling it out correctly, making sure you both sign it, and get it sent in, I suggest by fedex overnight as it is very secure and properly trackable. I would suggest you to get this sent in the next day or so if possible - time is of the essence at this moment. Amassing every bit of evidence can wait until later, just get it in with the main bulk of evidence you already have.

The most important thing is with this I-751, is that you MUST enclose a letter stating the reason for failing to file your I-751 on time, and why you are filing late at this time. Don't bother with a full contents list of evidence and all that rubbish  - just a simple, clear and to the point letter, stating why it is being filed late, and enclosing the main bulk of evidence you already have, should suffice. 

As long as you enclose that letter. It *should* be accepted, you will receive the receipt/extension notice, followed by the usual biometrics appointment. If you have any letters, say from a Dr or shrink at that time signing you off work, or stating you were depressed/medicated due to grief, then that only strengthens your case. 

I would say the death of a parent while pregnant is a pretty real and valid reason IMHO. 

 

 

As soon as you receive the extension letter, go to an infopass and obtain an I-551 stamp, showing them the letter, and stating that you require unambiguous proof of status, which is clarified below, 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)."

 

And Genco Opinon 96-12 itself:

""Genco Opinon 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)."

 

 

 

 

 

Still with me? Good. Get yourself another cup of tea.

 

Within a couple of days of receiving my scary denial letter, I had sent a new I-751, and I then received my receipt, then biometrics letter, and I went to get a stamp. Since then, I have left and returned to the US multiple times, with no issue - bar a quick and polite visit to secondary each time to verify my status (as my stamp is annotated with 'TC-1' , telling them it has been denied/re-opened). I am awaiting my citizenship interview now, which unfortunately has been delayed slightly due to this. 

 

To date I have had no NTA, and when I call the automated line, it shows nothing. The phone line is 1-800-898-7180. Have your A# to hand, and use the automated system, which will tell you if an NTA has been issued or there are any proceedings underway.

My suspicion is that if you file quickly enough (and within the 30 days allowed for an I-290B to be filed), it stops the file being passed to the courts for an NTA. As yours is a very recent denial letter, you stand a good chance of this also happening to you. 

 

Even if you do receive an NTA, any proceedings would be immediately stayed (paused) with a still-pending I-751 (which is why you must file it). This will be adjudicated on its merits and the evidence provided, without prejudice.

 

 

But ultimately my point is, DON'T PANIC....all is not lost, you have rights, and you won't be sent on the next plane home, or arrested in the street. Just get that 751 in asap and see what happens then.

 

 

THANK. YOU. SO. MUCH. 

 

This was somewhat of a relief to read last night, helped temporarily curb the panic attacks. I have the package 99% ready to go, we were just finishing a move across the country before mailing. I can mail it by the end of the week. 

 

I did call the 1-800 number listed above and thankfully nothing was there. 

 

I do have a question when it comes to the i-751 form question 18(attached) now...do I have to say yes? Or is this only when there has been a NTA issued?

[mindthegap 2,599]

I would (and did) say no. 

You have received a letter, but no NTA has been received and no other proceedings have commenced at this time, as confirmed by your call to the 1800 number.

 

Note that you can mail it from anywhere, if that is a concern for you. 

 

Edited May 29, 2019 by mindthegap

[Amadia 711]

1 hour ago, Helpneeded2019 said:

I do have a question when it comes to the i-751 form question 18(attached) now...do I have to say yes? Or is this only when there has been a NTA issued?

Like @mindthegap stated (great job with the experience btw!), the answer would be NO since you only got the letter telling you that you were out of status but not in actual immigration court going through the motions of deportation, etc.

 

Situations happen and the best we can do is work with what we have. Make sure to include death cert of your mom, birth cert of your baby when submitting evidence with your letter on why you failed to file Removal timely. 

 

Best of luck to you!

[EmilyW 1,512]

@mindthegap's post should be pinned somewhere.  It's an extraordinarily well thought out and concise piece of advice.

[little immigrant 801]

6 hours ago, Helpneeded2019 said:

THANK. YOU. SO. MUCH. 

 

This was somewhat of a relief to read last night, helped temporarily curb the panic attacks. I have the package 99% ready to go, we were just finishing a move across the country before mailing. I can mail it by the end of the week. 

 

I did call the 1-800 number listed above and thankfully nothing was there. 

 

I do have a question when it comes to the i-751 form question 18(attached) now...do I have to say yes? Or is this only when there has been a NTA issued?

Hi there sorry you're going through this. 

 

Please use your new address as address changes can be very tricky with USCIS. 

[Lemon23 400]

56 minutes ago, EmilyW said:

@mindthegap's post should be pinned somewhere.  It's an extraordinarily well thought out and concise piece of advice.

agree on this. 

[Pitaya 2,577]

2 hours ago, Lemon23 said:

agree on this. 

  I already put a report into the mods to see if this thread can be locked and pinned at the top of the forum page. Excellent info.

[JNSD 1]

Thank you all! I'm mailing it tomorrow. 

 

 

[JNSD 1]

Just an update to you all. Got confirmation today of acceptance. 

 

Special thank you to @mindthegap

[mindthegap 2,599]

Sweeeet.

Now make an infopass and go get that stamp.

[Shah786 2]

On 5/28/2019 at 7:53 PM, mindthegap said:

Oh goody...my area of expertise. Having been (and somewhat still being) in the same situation, I will type a lengthy reply with some facts. Not alternative facts as one poster felt the need to type in response.

 

BRB

 

 

 

Helo my i751 got denied it was divorce waiver i have’nt receive the letter yet but i got the email my io didnt asked me about my relationship or why i got divorce actually my wife cheat on me. I evudance were lease mails id’s (same adress) effidavite 

I filed in august 2017 i got my interview feb 2021 yess that late io officer was more intersted in where i was living and who i was living with

as i was living in sharing apartment and my traffic ticked ( uber driver ) etc even my lawyer was very mad at the interview when io said ok good to go my lawyer stood up and start telling  him about my relationship but he didnt pay mind at all i talked to my lawyer today she was very upset too. My io was look like also african immegrant like early 20s and his english wasnt good at all too i was having problem to understand too. At the interview i provided my ex wife effidevite my friend effidavite and my lanlord effidevite i went in with atleast 300+ pages and new pics with my wife as friend but he didnt even asked actually my lawyer was just asking me to guge this and that etclike she was trying to bring the io on main topic about my marriage 

Edited March 16, 2021 by Shah786
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