I- 751 Reapplication after denial

[Alexmat1 9]

Here is my case. I applied for I - 751 just before the 2 year anniversary of the conditional residence permit came up. Since we were going through a separation and divorce, I applied for Waiver to  remove conditions (in 2015) based on good faith marriage. USCIS asked for RFE (Divorce decree) after some months, but the divorce case was highly contentious and dragging in court for custody/property division issues. So I could not submit a divorce decree and asked  USCIS for extended time to submit that.

 

USCIS did not give me more time and send me a Notice of Termination of my Conditional Green card. This was in 2016

 

I finally got my divorce decree in 2017  December. I was going through other custody battles following this divorce as well as some health issues and thus didn't prioritize Re applying for I 751 after I got my divorce decree. I plan to do that now in 2019. 

 

Here are my concerns:

1) Would USCIS raise a flag , if I am reapplying in 2019 after 2 years (when my Conditional green card was terminated in 2016 after the denial of the first I -751) ? 

2) Am I considered an unlawful presence ? I have worked on and off during this time and if so is this considered unlawful (as termination of conditional green card means termination of my work rights ?)

3) Once I reapply the I - 751 can USCIS reject it because I did not immediately file it after I got my divorce decree ? 

4) If USCIS accepts my second I-751, am I considered In status and can I start working ?

5) While USCIS is processing my second I-751, whats my status ? Can I travel outside US and successfully re enter ? Or is it safe to not travel or travel with Re entry permit ? 

 

Any inputs/suggestions will ease my mind and also ensure I am doing the right thing. Thank you.

Edited August 31, 2019 by Alexmat1

[geowrian 22,337]

1. No. You do need to file, but the I-751 will be adjudicated based on its own merits. If the bonafide-ness of the marriage wasn't an issue before, I doubt it would be viewed any differently with a new filing and the same evidence.
   1. Check to confirm that there is no NTA issued...there is a number to call but I'm on mobile right now and can't quickly pull it up. If so, you have to appear - you can't just ignore it.
2. It varies based on who you ask within the government (USCIS would say your LPR status terminated when the I-751 was denied), but effectively you're fine until an immigration judge removes your status. You're entitled to the same privileges as any other LPR and to evidence of status.
3. No, that is not a valid reason for refusal of an I-751.
4. You can do that right now, as noted in #2. The only issue is that if you don't have an I-551 stamp right now, you lack evidence of your LPR status. The extension letter that you get by filing the I-751 will be useless for you as it is over 18 months since the card expired. What you can do if file the I-751, get the receipt, and then make an appointment with the local USCIS field office (you may have to call) to get an I-551 stamp. That works exactly the same as a physical green card for 1 year. You can get another one when that is about to expire, too.
5. See #2 and #4. A re-entry permit has no advantage unless you are traveling abroad for an extended period of time (like any other LPR, conditional or not).

I'll also invite @mindthegap to join the thread to clarify/correct any of the above. They are the guru here.

 

[HRQX 4,145]

19 minutes ago, Alexmat1 said:

USCIS did not give me more time and send me a Notice of Termination of my Conditional Green card. This was in 2016

This might help:

On 8/19/2019 at 7:50 AM, mindthegap said:

Even if there is an NTA (notice to appear) or court proceedings have started, then you can still file an I-751 and indeed should. The danger is that there has been a final order of removal by an immigration judge without your knowledge, which would mean you have lost your permanent resident status, and makes things slightly tricker. Note that USCIS termination letter does NOT terminate your status - only a judge can do that.

Call 1-800-898-7180 (toll-free) and have your A# number (your USCIS number on your 2yr card) and input it into the automated system, which will tell you if there are pending proceedings against you, or if you have had a judgement against you in absentia https://www.justice.gov/eoir/customer-service-initiatives

 

[mindthegap 2,590]

14 hours ago, Alexmat1 said:

1) Would USCIS raise a flag , if I am reapplying in 2019 after 2 years (when my Conditional green card was terminated in 2016 after the denial of the first I -751) ? 

 

No. I-751 waiver filings (plural) are permitted at any time prior to a final order of removal being made by an immigration judge. After a final order of removal you are no longer a LPR and cannot file an I-751.

 

14 hours ago, Alexmat1 said:

2) Am I considered an unlawful presence ? I have worked on and off during this time and if so is this considered unlawful (as termination of conditional green card means termination of my work rights ?)

Maybe. Call 1-800-898-7180 and have your A# to hand. The automated system will tell you if any court proceeedings are pending etc. 

If you have had a hearing in absentia then you may have had a final order of removal made against you, which means you are no longer a LPR and cannot file an I-751 at this time.  There are things you can do if this has indeed happened without your knowledge, but call the automated line first to check your current status.

Three years is a while...but the courts are backlogged and NTAs can take years to appear, so maybe nothing has happened yet. 

If it is clear, you are NOT considered an unlawful presence but do not leave the US at this time without filing your fresh I-751 and obtaining a stamp.

 

 

14 hours ago, Alexmat1 said:

3) Once I reapply the I - 751 can USCIS reject it because I did not immediately file it after I got my divorce decree ? 

No. Multiple I-751s are permitted, and divorce/waiver filings are not a reason for denial. All I-751s are adjudicated on the evidence provided.

 

14 hours ago, Alexmat1 said:

4) If USCIS accepts my second I-751, am I considered In status and can I start working ?

See 2) above.  

 

14 hours ago, Alexmat1 said:

5) While USCIS is processing my second I-751, whats my status ? Can I travel outside US and successfully re enter ? Or is it safe to not travel or travel with Re entry permit ? 

See 2) above.

If clear, you are a LPR, and are entitled to an I-551 stamp. Once you file your fresh I-751 take the receipt notice to an infopass, and get a stamp as proof of status. You can then travel internationally. You do not need a re-entry permit.

If not clear, post back as you have some hurdles to overcome.

 

 

 

[Alexmat1 9]

Thanks everyone for the comments. Here are the updates:

 

I called up the automated help line and the response was that no case matches the A number entered.  So good news is there is no NTA so far.

 

I have these concerns regarding travel:

- Once I file the new I 751 and get the receipt and take an infopass appointment and get I-551, do I need any other proofs or documents with me to travel outside US and successfully re enter ? 

- I have not been working for the past 3 years. I work in a specific IT area and for the first couple of years I was bogged with the emotional stress of divorce and custody. The only jobs available to me required travel and with the custody my attorney advised me not to move out of the area. With the gap in work now, its hard for me to find work. I dont have an income and I have tried for jobs and some jobs that I qualified wanted to see a proper unexpired Green card. My explanations of how the I 751 works hasnt helped much as they think I am out of status. In short I dont have an income for three years. I borrow money from a friend as loan. I also have Medicaid and Food coupon (Food stamp). Thus I could be treated as Public charge by USCIS. Though policy documents say Food stamp and Medicaid are not considered public charge triggers and the public charge consideration is only done at the time I first entered the country and became an LPR , I read (went through the Immigration Law and Procedure by Lexis Nexis at the law library) that when one re enters , the Border officer has discretion to still consider it. Though I am not taking any other cash assistance or anything from the government (and I will be terminating the food stamps in October and well before travel), the lack of a job can make the officer think I can go on welfare and be a public charge and hence deny me an entry. 

- The other option is to ask my Sponsor , my ex spouse to support me as per the Affidavit of Support and show that as proof at the Port of entry. I am also going to apply for a part time masters program to enhance my skills towards a job.

- In short is the lack of a job, and the past use of Food stamp a real danger that can deny me re entry to US on Public charge grounds (if I travel after getting I 551 stamp) while my I-751 is still processing. Can this affect my I-751 processing. Even if I am denied entry, am I send back from the port of entry to foreign country or am I brought before a judge who can parole me in ? 

 

Going through the Immigration Law by Lexis Nexis has been a nightmare, because public charge is a serious concern and without a job, an officer of port of entry could very well think of me as a risk and turn me back.

 

 

[geowrian 22,337]

15 minutes ago, Alexmat1 said:

Thanks everyone for the comments. Here are the updates:

 

I called up the automated help line and the response was that no case matches the A number entered.  So good news is there is no NTA so far.

Good. So the I-751 filing now would be the top priority to get things back on track.

 

15 minutes ago, Alexmat1 said:

- Once I file the new I 751 and get the receipt and take an infopass appointment and get I-551, do I need any other proofs or documents with me to travel outside US and successfully re enter ? 

A passport w/ the stamp is sufficient.

 

15 minutes ago, Alexmat1 said:

- I have not been working for the past 3 years. I work in a specific IT area and for the first couple of years I was bogged with the emotional stress of divorce and custody. The only jobs available to me required travel and with the custody my attorney advised me not to move out of the area. With the gap in work now, its hard for me to find work. I dont have an income and I have tried for jobs and some jobs that I qualified wanted to see a proper unexpired Green card. My explanations of how the I 751 works hasnt helped much as they think I am out of status. In short I dont have an income for three years. I borrow money from a friend as loan. I also have Medicaid and Food coupon (Food stamp). Thus I could be treated as Public charge by USCIS. Though policy documents say Food stamp and Medicaid are not considered public charge triggers and the public charge consideration is only done at the time I first entered the country and became an LPR , I read (went through the Immigration Law and Procedure by Lexis Nexis at the law library) that when one re enters , the Border officer has discretion to still consider it. Though I am not taking any other cash assistance or anything from the government (and I will be terminating the food stamps in October and well before travel), the lack of a job can make the officer think I can go on welfare and be a public charge and hence deny me an entry. 

Public charge isn't a consideration for ROC. Use of certain public benefits varies by state, and if they were used before or after 5 years of being an LPR. It's hard to say too much here without various details. But the I-864 sponsor(s) signed a contract with the government to provide support and/or recovery of government funds. I'm assuming you didn't attempt to sue for support under the I-864, or have it brought up during divorce proceedings?

 

Unless you have an unrestricted Social Security card (one w/o text across it stating that it is only valid for employment with DHS approval) + a valid driver's license or state ID (or other List B + C documents for an I-9), then they were correct to refuse to hire you once your green card expired. An existing employer is not permitted to re-verify you LPR status, but a new one must receive proper documentation to comply with I-9 requirements.

 

Once you have the I-551 stamp, that will suffice as a List A document and shouldn't be an issue for an I-9. I say "shouldn't" because some employers may not be aware of it, but even then, pointing them in the direction of the I-9 documentation should resolve that. Additionally, getting an unrestricted Social Security card, if you don't have one, can be obtained with the I-551 stamp. That can help in the future, such as if the I-551 expires and you don't get a new one yet.

 

15 minutes ago, Alexmat1 said:

- The other option is to ask my Sponsor , my ex spouse to support me as per the Affidavit of Support and show that as proof at the Port of entry. I am also going to apply for a part time masters program to enhance my skills towards a job.

I don't think this will have any role at POE. Sure, go through the sponsor for compliance with the I-864 if needed, but I don't think the public charge item would come up at POE. That's just my $0.02. Even then, you are entitled to a court appearance for a judge to determine if you are inadmissible.

 

Yes it is safer to not leave the US at all. Any re-entry has risks. But my personal opinion is that if you have valid documentation (I-551 stamp + passport) and aren't a security risk or something, then the worst case is they parole you in. And even that is quite uncommon.

[Alexmat1 9]

I used the Food stamps before the 5 years. And Medicaid though I was approved for it before 5 years, used it after the 5 year mark. I live in California.

I havent asked the sponsor to support based on I 864, but I understand it should be required so show some proof of support (in case I get unlucky at POE). It was brought up during divorce proceedings but the judge mentioned (and he was wrong about it) that this is not the right court to address it as its immigration related. A case law shows that he should have ruled on it. I might have to bring another case to enforce this, before I travel , to keep as a proof of support.

 

I checked my social security card. I got this a decade before I came in as a conditional resident when I worked on H1B visa. It was the Valid for work only with INS Authorization on it. I have a drivers license and State ID.

 

So it means I wont be able to get a job till I get I-551 stamped. 

 

Whats an I-9 document ? Is it obtained after I get the I-551 ? 

 

Unrestricted Social Security card - Can I get this from the Social Security office with the I-551 ? 

 

I do have a need to travel outside. My big worry is I cant get in. I take it from your comments that Public charge wont be an issue at POE and even if it is, I will have my opportunity before a judge and I could be paroled in (though you say need for this is rare too).

 

 

[geowrian 22,337]

18 minutes ago, Alexmat1 said:

I used the Food stamps before the 5 years. And Medicaid though I was approved for it before 5 years, used it after the 5 year mark. I live in California.

Not sure about food stamps with CA, but Medi-Cal is fine. That is state-funded so it is not an issue for the I-864 or being a public charge. So no potential issue is even there for that item.

 

18 minutes ago, Alexmat1 said:

I checked my social security card. I got this a decade before I came in as a conditional resident when I worked on H1B visa. It was the Valid for work only with INS Authorization on it. I have a drivers license and State ID.

 

So it means I wont be able to get a job till I get I-551 stamped. 

 

Whats an I-9 document ? Is it obtained after I get the I-551 ? 

 

Unrestricted Social Security card - Can I get this from the Social Security office with the I-551 ? 

An I-9 is the form you complete as a non-citizen so that your employer can verify that you are authorized to work. Well, they use this or I believe e-Verify (idk the details of eVerify, but the same documentation is used IIRC).

Your current Social Security card s restricted. You need an unrestricted one + your license OR state ID to qualify to complete an I-9. Or you need the I-551 stamp.

You can get an unrestricted Social Security card from the SSA once you have the I-551 stamp.

 

In short, you need to file the I-751 and then get an I-551 stamp so you can show that you are authorized to work.

 

18 minutes ago, Alexmat1 said:

I do have a need to travel outside. My big worry is I cant get in. I take it from your comments that Public charge wont be an issue at POE and even if it is, I will have my opportunity before a judge and I could be paroled in (though you say need for this is rare too).

Correct. Nothing is guaranteed except for US citizens, so it is never a 0 risk, but it's not one that I believe would be raised as a concern.

I'll again invite others for their opinion.

[Alexmat1 9]

Thanks for the clarification geowrian.

 

I will wait for others also to chip in regarding the international travel part given my situation.

[afrocraft 313]

6 hours ago, Alexmat1 said:

Thanks for the clarification geowrian.

 

I will wait for others also to chip in regarding the international travel part given my situation.

With so much uncertainty surrounding your legal status, why would you want to travel outside of the country? Unless it's absolutely necessary, I would hold off on international travel.