Sent three cert letters to USCIS with copy of I-94 ,lockbox receipt. No reply not reply.

[windboater 0]

2014 I petitioned USCIS for Adjustment of Status (AOS) for my new wife Vanessa while she was in the US on a tourist visa. We hired an a "reputable" attorney who unbenounced to us was dying of stage 4 cancer. The cancer was so advanced, having already exhausted all recognized treatment options, that she was admitted to the hospital within a couple of weeks of our retaining her and died. Still she submitted Vanessa's paperwork.
Vanessa received several documents after the filing but none indicated any deadline violations. She received her work permit, and later an interview date.
Vanessa had a family emergency at which point we first learned of our attorney's death several weeks before.
Having been able to speak to our attorney before Vanessa leaf the US might have changed her mind, but I doubt it. A mother's going to do, what a mother's has to do.
Vanessa returning to Taiwan just two weeks before her interview date.
I notified USCIS of her leaving but apparently no one passed the information along to the interviewer and neither did the attorneys office. The interview was a no show.
Only then, did USCIS claimed our attorney had filed Vanessa's AOS application late.
I sent three certified letters providing USCIS with her I94 and the locked box receipt. The AOS paperwork had been submitted on time, (though just). Vanessa had never been in the country illegally and left on her own accord.
USCIS never replied to any of my letters. I eventually I dropped the ball, as by then I had cancer and my wife was too concerned with my care, to follow up with USCIS on her own.
We have been happily living in Taiwan for the past 5 years.  This year we decided to move our residences to Medellin, Colombia.
When making flight reservations I found my wife couldnt get a tranfer visa for connecting flights through  the US or Canada, effectively cutting us off from any reasonable access to Latin American. The old addage "you cant get there from here" comes to mind!
Apparently no one at USCIS did anything with the documents I provided and the "supposed overstay" remains on her record.
For a women who has never had as much a parking ticket in her life, this treatment is unreasonable and certainly below USCIS standards.

While we are now committed to living abroad, I need her records cleared so she can travel unresticted on her Taiwanese passport as we did before started this process.
I'm looking for some advice on how to best address this.

[Crazy Cat 41,885]

Can you clarify?  On what date did she enter the US on the tourist visa and on what date did she return to Taiwan for the family emergency?

[windboater 0]

6 minutes ago, missileman said:

Can you clarify?  On what date did she enter the US on the tourist visa and on what date did she return to Taiwan for the family emergency?

Hi missileman. Arrived Oct 15 2013

Left April 10th 2014. 

 

[Crazy Cat 41,885]

1 minute ago, windboater said:

Hi missileman. Arrived Oct 15 2013

Left April 10th 2014. 

 

Was that before the expiration of her I-94?    

Are you trying to restore her ESTA? If she no longer qualifies for ESTA, then I guess a B2 is the only other option......

[windboater 0]

50 minutes ago, missileman said:

Was that before the expiration of her I-94?    

Are you trying to restore her ESTA? If she no longer qualifies for ESTA, then I guess a B2 is the only other option......

Hi Missileman, Attorney told me the arrived of the AOS application at the Texas locked box, stopped the clock on the 90 day tourist Visa window. At that point you are in the country legally until your interview date. She left on her own before the interview date. 

[Crazy Cat 41,885]

10 minutes ago, windboater said:

Hi Missileman, Attorney told me the arrived of the AOS application at the Texas locked box, stopped the clock on the 90 day tourist Visa window. At that point you are in the country legally until your interview date. She left on her own before the interview date. 

So she filed her I-485 before expiration of her I-94.  Interesting......But then she abandoned the AOS......

@geowrian @Boiler 

[geowrian 22,337]

First option would be apply for the ESTA and find out what it says. If records indicate that she did overstay, then ESTA will be out of the picture. There's not an appeal for ESTA AFAIK....it's a privilege that they can deny at any time and for any reason (even if the reason is due to incorrect data).

Assuming ESTA is not possible, then she needs to apply for a visa if she wants to visit. She can attempt to explain the situation to the CO if they note the overstay, having evidence of when she entered the US, when she left, and when AOS was filed. Note that filed means when they received it, not when it was sent. Without that information, it's going to be a she-said/she-said situation, and that never goes in a tourist applicant's favor.

 

I would note, however, that she has 2 negative factors for getting a tourist visa already:

1) Ties to the US via a USC spouse. This is hard to overcome.

2) Previous filing for AOS (and via the VWP). The presumption will be (as is required by law) that she intends to file for AOS again. One can say they are committed to living abroad, but convincing a CO of this is much different. Five years is not a short time, but it's not exactly too long in immigration terms either. They won't have more than a few minutes with you to try to understand your full circumstances and why you don't want to live in the US anymore.

 

All that said, I would encourage trying and I wish her luck. Taiwan isn't high fraud (hence why they can even use the VWP), so don't read too much into the points above as a sign of probably not being successful at this time. I'm just noting them as they are strong factors in the decision, so if the visa is refused then you will have a better idea as to why.

 

Trying to compel USCIS or CBP to acknowledge that they made a mistake years ago for somebody who only wants to visit just isn't on the radar. They have such a massive backload for cases not involving tourists that I can't imagine ever getting somebody to look into it there. That's just the way it is for visitors. For other visas (especially immigrant visas), they (well, a CO actually) will look at the record more closely.

Edited June 28, 2019 by geowrian

[windboater 0]

16 hours ago, missileman said:

So she filed her I-485 before expiration of her I-94.  Interesting......But then she abandoned the AOS......

@geowrian @Boiler 

Yes, and recieved her work permit and a interview date. I see no basis for them to do this to us but they wont reply. 

[windboater 0]

Just now, windboater said:

Yes, and recieved her work permit and a interview date. I see no basis for them to do this to us but they wont reply. 

She also when to the biometric appointment . None of this should have been possible is her if application had arrived late.

[Crazy Cat 41,885]

15 minutes ago, windboater said:

She also when to the biometric appointment . None of this should have been possible is her if application had arrived late.

To me, it's odd that they used the term "arrived late"......because there is no time limit for submitting the I-485.....even if filed after expiration of the I-94, it is not late......

[arken 4,197]

19 hours ago, windboater said:

 

I notified USCIS of her leaving but apparently no one passed the information along to the interviewer and neither did the attorneys office. The interview was a no show.
Only then, did USCIS claimed our attorney had filed Vanessa's AOS application late.

This part is definitely confusing, why would USCIS claim anything after a no show at the interview other than simply denying the AOS. How did you know USCIS claimed that? Do you have something (the wordings) to share here? 

[carmel34 3,633]

AOS was abandoned when she left the US and missed the interview.  This means that her "authorized stay" while waiting for AOS adjudication was retroactively revoked.  Assuming that she came to the US on ESTA and was given a 90 day stay on the I-94 at POE and then stayed for almost 6 months, her ESTA privileges were also revoked for overstaying when AOS was abandoned.  This is why she cannot enter the US now without a visa.  B2 would be the way to go as others have said, or if you ever decide to live in the US together at some future point in time, file for an IR-1 spousal visa.  B2 will be difficult to get because of her strong tie to the US (USC husband), the officer will assume she has immigrant intent.  So sorry this all happened, but the key mistake was leaving the US before the AOS interview, as that caused this problem.  You'll have to get creative and maybe fly through Australia to get to South America, or go the other way and fly through Dubai or Europe.  Good luck!  

[Crazy Cat 41,885]

8 minutes ago, carmel34 said:

This means that her "authorized stay" while waiting for AOS adjudication was retroactively revoked.

I tend to think that is exactly correct......although I've not yet found anything which says that is their policy.......but it does make sense that it would create a "late AOS filing".....

[windboater 0]

2 hours ago, missileman said:

I tend to think that is exactly correct......although I've not yet found anything which says that is their policy.......but it does make sense that it would create a "late AOS filing".....

Yes, it appears the same to me but I've found nothing that this is policy, law or even possible.  

 

3 hours ago, missileman said:

To me, it's odd that they used the term "arrived late"......because there is no time limit for submitting the I-485.....even if filed after expiration of the I-94, it is not late......

This was nearly 6 years ago, dont hold me to the exact terms they used back then.

 My understanding is that you must submit you application to the Texas locked box before the expiration of your Visa, in this case a 90 day tourist Visa. Vanessa application arrived either on the last day or the dry prior to the 90 days expiring.

 We gave it to the attorney in plenty of time for it to be submitted early

 but remember our attorney went into the hospital with terminal cancer and died there. Even of she had filed it a day late (which I see no evident of) has USCIS no compassion for a citizen be with his wife? 

[Crazy Cat 41,885]

7 minutes ago, windboater said:

Yes, it appears the same to me but I've found nothing that this is policy, law or even possible.  

 

This was nearly 6 years ago, dont hold me to the exact terms they used back then.

 My understanding is that you must submit you application to the Texas locked box before the expiration of your Visa, in this case a 90 day tourist Visa. Vanessa application arrived either on the last day or the dry prior to the 90 days expiring.

 We gave it to the attorney in plenty of time for it to be submitted early

 but remember our attorney went into the hospital with terminal cancer and died there. Even of she had filed it a day late (which I see no evident of) has USCIS no compassion for a citizen be with his wife? 

There are people who overstayed their tourist visas for years before filing AOS..and successfully adjusted....filing after the expiration of the I-94 is not an issue.  However, if the abandonment cancelled the protected stay, then a B2 is probably the only option now, imo.

Edited June 29, 2019 by missileman