Can USC withdraw joint ROC ? (merged)

[HappyAndIKnowIt 24]

  On 11/12/2019 at 2:49 PM, payxibka said:

I see that now,  then no such thing as "pulling support " as in financial support as the i864 is in place.   Sounds like a divorce waiver by the applicant is needed. 

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I understand the confusion about the word 'support', but USCIS wrote it in their denial.  It wasn't about an affidavit of support, but the support of a joint applicant validating the "good faith" nature of the marriage, I suppose.

 

The denial letter says "On [date], your petitioning spouse withdrew his support for your jointly filed Form I-751."

[HappyAndIKnowIt 24]

  On 11/12/2019 at 2:54 PM, Boiler said:

Needs to file with a divorce waiver.

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So, my read on what needs to happen is as follows:

 

The 'review' during removal proceedings for this joint petition will fail.

If the divorce decree is issued before her removal process is complete, it will be put on hold pending that application.

If removal process completes first, ... ???

Assuming she can file with a divorce waiver, and assuming USCIS denies that petition also, then she can review that petition during her already-in-process removal proceedings.

If she wins that review, then she gets green card.

If she loses, then her removal proceedings continue and unless she has some other way to prevent deportation, she is deported ?

 

I've left out the voluntary stuff just to focus on the interplay between her I-751s and Immigration Court proceedings.

 

Does that about sum it up accurately ?

[Boiler 46,664]

Logical thing would be to file with a Divorce Waiver and they will put it on hold until the Divorce is complete and then adjudge it.

 

Why would she ,lose it? Mist are approved.

[HappyAndIKnowIt 24]

  On 11/12/2019 at 3:16 PM, Boiler said:

Logical thing would be to file with a Divorce Waiver and they will put it on hold until the Divorce is complete and then adjudge it.

 

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I agree with you about what would be logical, but I have read here: https://www.ocimmigrationattorney.com/form-i-751-denials-and-immigration-court.html that:

  Quote

If the joint I-751 was denied by USCIS and the couple divorced before immigration proceedings started, the alien will need to file a new I-751 with USCIS. The I-751 with a waiver must be filed with USCIS even though the alien is in removal proceedings, because the immigration judge does not have jurisdiction to adjudicate any I-751 petitions. The immigration judge only has jurisdiction to review the denial of an I-751 by USCIS. In these cases, the immigration judge will often continue the deportation proceedings in order to give USCIS time to adjudicate the newly filed I-751.

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i don't understand the relevance of the part I bolded.  It seems to be immediately contradicted by the next sentence.

 

The above also leaves out what happens if the couple does not divorce before immigration proceedings started.

 

I understand she will need to file an I-751 with divorce waiver, at some point, but it doesn't seem that since she is or will shortly be in removal proceedings, that she can file it without a divorce decree.  Strange situation, this is.

 

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Why would she ,lose it? Mist are approved.

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Just because in this particular case, FDNS has already been here to interview me, they have noted in her denial that their reason for denial is related to failing to prove "good faith" and not entering into the marriage to circumvent immigration laws.

 

With the scrutiny they have already invested, I just doubt they are going to rubber stamp her followup divorce waiver.

[Boiler 46,664]

Well she has not applied with a divorce waiver so not sure how any finding can be made.

[Ontarkie 14,740]

~~Related threads merged. Do not start another thread on this topic.~~

[HappyAndIKnowIt 24]

  On 11/12/2019 at 6:03 PM, Ontarkie said:

~~Related threads merged. Do not start another thread on this topic.~~

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Sorry.  It started in my mind as more of an immigration court question.

[Ontarkie 14,740]

  On 11/12/2019 at 10:19 PM, HappyAndIKnowIt said:

Sorry.  It started in my mind as more of an immigration court question.

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Yes I can see that. With the back story, which is very important, it's best to keep together.

[HappyAndIKnowIt 24]

  On 11/12/2019 at 2:02 PM, HappyAndIKnowIt said:

The denial letter mentions on the first page that they are denying the petition "for the following reason(s)", then it specifies the "good faith" and "not for the purpose of circumventing the immigration laws" language.

 

On the second page of the letter, there is a section "Statement of Facts and Analysis, Including Ground(s) for Denial".  In this section, it makes no mention of the above "good faith" stuff, but only that my wife filed for divorce and that I withdrew my support for the jointly filed petition.  Then it says "Your Form I-751, does not meet the requirements for a jointly filed petition under INA 216.  Therefore, USCIS denies your Form I-751."

 

The rest is boilerplate, but the first sentence of that is: "In accordance with INA 216(c)(3)(D), you may request a review of this determination in removal proceedings."

 

So... is the review of the decision as to whether my wife filed for divorce and I withdrew my support ?  If that's the case, the review is a non-starter.  Or does the review involve the "good faith" aspect somehow ?

 

What is the effect of the language about "good faith" if the denial was simply about divorce and my withdrawal ?

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So, I think I might have an idea why the language about "good faith" is in the reasons for denial, even though it's not on the "Grounds for Denial" on the second page.

 

At https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-11685/0-0-0-11691.html#0-0-0-469 , I found the following:

 

  Quote

(g) Adjudication of Form I-751. [Section (g) updated December 10, 2018]

 

(1) Interviews.

 

Generally, conditional permanent residents who file a Form I-751 must appear for an interview.¹ However, USCIS officers may consider waiving² an interview if they are satisfied that: 

• They can make a decision based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;

• For I-751 cases received on/after December 10, 2018, USCIS has previously interviewed the I-751 principal petitioner³ (for example, for a Form I-485 or Form I-130);

• There is no indication of fraud or misrepresentation on the Form I-751 or the supporting documentation; and

• There are no complex facts or issues that require an interview to resolve questions or concerns.

When determining whether to waive an interview, the considerations listed above apply regardless of whether the Form I-751 is filed as a joint petition or as a waiver of the joint filing requirement.

Cases involving fraud or national security concerns must be referred to the Fraud Detection and National Security Directorate according to local procedures.

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Based on the last line above, since the previous denial contains that language, that indicates fraud concerns, therefore they are making sure the subsequent divorce waiver filing will be referred to FDNS.

 

Does that seem logical to anyone else ?

[Villanelle 4,122]

While I understand where you are coming from and your desire to see her not able to ROC... thats just not how it works. I suggest you look through posts by the user mindthegap as he is going through the court process for ROC through no fault of his own. The bottom line is an alien can file ROC multiple times- and technically when filing with a divorce waiver it can be done at any time so there is no late filing explanation needed.

You also seem to be reading into the letter. If it says it was denied because you pulled out of the petition then thats why it was denied. Unless it specifically listed under the grounds that she did not establish good faith- they didnt deny for that and only denied based on you withdrawing. 

She can file a divorce waiver with out actually having the divorce. She will just need the divorce decree to be approved.  I know its all very confusing so again I suggest reading some of mindthegaps postings and post back any additional questions you have. 

 

[HappyAndIKnowIt 24]

  On 11/13/2019 at 3:00 AM, Villanelle said:

While I understand where you are coming from and your desire to see her not able to ROC... thats just not how it works. I suggest you look through posts by the user mindthegap as he is going through the court process for ROC through no fault of his own. The bottom line is an alien can file ROC multiple times- and technically when filing with a divorce waiver it can be done at any time so there is no late filing explanation needed.

You also seem to be reading into the letter. If it says it was denied because you pulled out of the petition then thats why it was denied. Unless it specifically listed under the grounds that she did not establish good faith- they didnt deny for that and only denied based on you withdrawing. 

She can file a divorce waiver with out actually having the divorce. She will just need the divorce decree to be approved.  I know its all very confusing so again I suggest reading some of mindthegaps postings and post back any additional questions you have. 

 

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I tried searching mindthegap and found lots of replies, but I didn't see a post with his specifics.  I read through his timeline, though.  I didn't see anything where s/he received an NTA or was in removal proceedings.  Also, from what I see, mindthegap's I-751 filings were before policy changes which result in automatic NTAs.  I might not be seeing what you're referring to.

 

Anyways, about the denial letter, it does say:

 

  Quote

After a thorough review of your petition and the record of evidence, unfortunately, we must inform you that we are denying your petition for the following reason(s).

 

Generally, to demonstrate that an individual is eligible for removal of their conditions on residence regarding a petition filed under INA 216, an applicant must:

 

     *     Establish that their relationship with their petitioning spouse was entered into in "good faith" and was not for the purpose of circumventing the immigration laws.

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Edited November 13, 2019 by HappyAndIKnowIt
Incomplete post

[mindthegap 2,611]

 

 

  On 10/30/2019 at 4:08 PM, HappyAndIKnowIt said:

Just to confirm what you are saying.  If I withdraw the 751, she will be able to continue to work unless and until an immi judge says otherwise ?  My understanding from the agents is that her 751 would be denied automatically if I withdraw, but this alone would not prevent her from working and she would have time to re-file ?  If this is the case, then that is great news.  Her losing her job is the only thing I can think of so far that would give me pause about withdrawing.  Thanks !!

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@geowrian is correct.

USCIS denial letters are just basically intent to deny letters that have no legal basis for stripping of ones LPR status.

The LPR remains a LPR until a final order of removal (should one be made) by an immigration judge. They are entitled to an I-551 stamp and to work, travel, and all other LPR rights until such time as a final order of removal is made.

Source: direct personal experience.

 

  On 11/10/2019 at 1:11 AM, HappyAndIKnowIt said:

Update:

It doesn't appear that she can re-file with a divorce waiver, can she ? 

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There is no limit on how many I-751s can be filed, and they ALL must be adjudicated (by USCIS) before any court proceedings can continue, or conclude.

 

  On 11/12/2019 at 2:02 PM, HappyAndIKnowIt said:

 

The rest is boilerplate, but the first sentence of that is: "In accordance with INA 216(c)(3)(D), you may request a review of this determination in removal proceedings."

 

So... is the review of the decision as to whether my wife filed for divorce and I withdrew my support ?  If that's the case, the review is a non-starter.  Or does the review involve the "good faith" aspect somehow ?

 

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The LPR can file an I-290B within 30 days, but this is not a general catch all appeals process - it is generally when you are requesting that they reconsider because the decision was made by the incorrect application of law or policy, or that the law has not been followed, based on the evidence at the time.

You can request it is re-opened citing new evidence, or you cn straight up enter a statement of appeal, citing the specific incorrect application of law or fact.

I didn't bother, as I-290Bs cost the same new I-751s, have a poor success rate, and i would have probably ended up having to file a new I-751 (at further cost anyway, which is what I did.

 

  On 11/13/2019 at 1:09 AM, HappyAndIKnowIt said:

So, I think I might have an idea why the language about "good faith" is in the reasons for denial, even though it's not on the "Grounds for Denial" on the second page.

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It is simply because 'good faith' is the whole basis for an I-751. It wasn't completed, the co-sponsor aspect was withdrawn, so it was denied due to being able to demonstrate the good faith (and other parts) of the I-751. Nothing more - you are reading way too much into it. 

I believe my denial letter from USCIS also mentioned failure to prove good faith in the same way, when that (and the evidence provided) was about as far from the truth as possible and not the reason for denial in anyway.

 

  On 11/13/2019 at 3:00 AM, Villanelle said:

While I understand where you are coming from and your desire to see her not able to ROC... thats just not how it works. I suggest you look through posts by the user mindthegap as he is going through the court process for ROC through no fault of his own.

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Thanks

 

  On 11/13/2019 at 2:24 PM, HappyAndIKnowIt said:

I tried searching mindthegap and found lots of replies, but I didn't see a post with his specifics.  I read through his timeline, though.  I didn't see anything where s/he received an NTA or was in removal proceedings.  Also, from what I see, mindthegap's I-751 filings were before policy changes which result in automatic NTAs.  I might not be seeing what you're referring to.

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Long story made short:

Filed I-751 jointly in early - ish 2015.

Separated late 2015 due to their infidelity and a substance abuse problem that would keep pablo escobar in business.

Got an interview (well, several that didn't happen, but eventually got in the office for one).

Requested switch to divorce waiver at start of interview, done without issue.

Went through evidence, including adding further evidence between I-751 filing and separation.

 

Just over a month later, get a letter through stating the I-751 was going to be denied. It stated that although I had switched to a divorce waiver, my ex spouse had contacted USCIS on [specific date & location] with an (entirely and provably false) allegation regarding the filing of the original I-751, withdrawing from the joint aspect of it, and on that basis, as they stated it was not properly filed in the first place, it was denied. That was all.

It didn't mention everything that was stated by my ex spouse, just one thing, which was the basis for the denial of the original underlying filing.

Within a couple of days I had filed a fresh I-751 with divorce waiver, enclosing basically no evidence, but with a cover note stating all evidence from the original filing was relevant to this one and to reference it.

New extension received, new biometrics done, new stamps in passport....same I-551 stamps as normal, except annotated TC-1 (which means "spouse of U.S. citizen, conditional status denied or reopened" so I have to go to secondary for verification every single time I re-enter the country).

 

No NTA ever appeared, no pending or missed proceedings showing on automated phone line, and I can only guess that this is because I filed a fresh I-751 immediately, staving off any movement to further proceedings. 

 

 

I'm still going through this hell - 4.5 years since original joint filing, over two years since denial and solo re-filing, not far off two years since filing my N-400, and now 9 months since my N-400 interview was cancelled on the day, due to my still pending I-751 and that they didn't have all the paperwork in the office (which is a lie, as there was a transfer listed in my case history). Ombudsman refused to help. Senator tried and could get no movement - basically stuck in limbo.

Happy to answer any questions as I have unfortunately more experience than I should (or would like to have!) in this area but as a result know a fair bit of the legal-ese to do with it.

 

 

Edited November 13, 2019 by mindthegap

[Villanelle 4,122]

I agree with everything posted above. USCIS is like dealing with a computer. Because the 751 needs to be filed joint (unless you use a waiver) but when its filed joint and then you withdraw USCIS says oh you didnt show good faith with this joint filing since both people are not on it. It doesnt preclude her from filing a waiver where she can show good faith on her own, it just means her one sided joint filing can not show that. I hope that makes sense. 

 

I also dont believe that the new NTA policy applies to 751s? I havent seen any cases recently where NTA was issued promptly for a 751 case. 

 

I can also tell you I know of a case from a long time ago where FDNS was contacted and given solid proof of something fraudulently done by the alien who was going through ROC. The USC who reported it had a very good experience with FDNS, although they were not specifically updated about what was going on, the Officer let them know in a round about way that they were taking it seriously and taking action on it. Apparently FDNS contacted the alien and its unknown exactly what was said but whatever it was caused the alien to abandon the ROC and leave the US as it seemed FDNS frightened them as to what could happen if they continued the process. We can only hope for a similar outcome to occur with your situation. 

 

So the only other thing I can advise you is if you have any other evidence to give to FDNS give it to them. Anything where she lied for a benefit of some kind. Does not have to be immigration related. If she made false reports to the police or a court or applied for food stamps with incorrect info- any of that will help. 

[HappyAndIKnowIt 24]

  On 11/13/2019 at 5:07 PM, Villanelle said:

I agree with everything posted above. USCIS is like dealing with a computer. Because the 751 needs to be filed joint (unless you use a waiver) but when its filed joint and then you withdraw USCIS says oh you didnt show good faith with this joint filing since both people are not on it. It doesnt preclude her from filing a waiver where she can show good faith on her own, it just means her one sided joint filing can not show that. I hope that makes sense. 

 

I also dont believe that the new NTA policy applies to 751s? I havent seen any cases recently where NTA was issued promptly for a 751 case. 

 

I can also tell you I know of a case from a long time ago where FDNS was contacted and given solid proof of something fraudulently done by the alien who was going through ROC. The USC who reported it had a very good experience with FDNS, although they were not specifically updated about what was going on, the Officer let them know in a round about way that they were taking it seriously and taking action on it. Apparently FDNS contacted the alien and its unknown exactly what was said but whatever it was caused the alien to abandon the ROC and leave the US as it seemed FDNS frightened them as to what could happen if they continued the process. We can only hope for a similar outcome to occur with your situation. 

 

So the only other thing I can advise you is if you have any other evidence to give to FDNS give it to them. Anything where she lied for a benefit of some kind. Does not have to be immigration related. If she made false reports to the police or a court or applied for food stamps with incorrect info- any of that will help. 

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I believe I will soon find out if the new NTA policy applies to 751s.  If and when my wife receives one, I will certainly forward that info here because that would reflect a change.

 

I can say that my experience with FDNS was also positive and the part about FDNS not providing info, but rather a subconscious wink is definitely true.  They made it clear they were investigating our jointly-filed I-751, not her mother, but they did ask a couple questions about the mother's activities and when she arrived.  I know something will be done to get rid of MIL, I just don't know what or when.

 

Since my wife does not seem to be gathering evidence right now, I have to assume her attorney is waiting, probably for a divorce decree, to file the waiver I-751.  At that point, USCIS will have another case open for me to provide additional evidence, as necessary.  FDNS didn't interview my wife on this application, obviously they didn't need to, but hopefully they will for the next one.

 

I know you guys are saying that multiple I-751's can be filed, and obviously I don't refute your experience.  But I wonder if the policy change on NTAs, if it affects I751s, changes that.  I know she will be able to re-file with a divorce waiver, but I'm not sure she'll be able to continue to file.  What I read about removal proceedings, the IJ "can" pause proceedings for pending applications at USCIS.  The denial letter we received says nothing about any appeal or review other than by IJ during removal proceedings.  It seems that if USCIS denies a followup waiver I751, that review would be considered by the IJ, and then it would seem reasonable that the IJ is not going to pause for a repeat of what was just denied and reviewed and upheld.  New territory.  I think we're all going to find out what happens with the policy changes together.

[mindthegap 2,611]

  On 11/13/2019 at 8:20 PM, HappyAndIKnowIt said:

Since my wife does not seem to be gathering evidence right now, I have to assume her attorney is waiting, probably for a divorce decree, to file the waiver I-751.  At that point, USCIS will have another case open for me to provide additional evidence, as necessary.  FDNS didn't interview my wife on this application, obviously they didn't need to, but hopefully they will for the next one.

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Nope. You will have no involvement in the waiver filing as it does not include you. 

 

  On 11/13/2019 at 8:20 PM, HappyAndIKnowIt said:

I know you guys are saying that multiple I-751's can be filed, and obviously I don't refute your experience.  But I wonder if the policy change on NTAs, if it affects I751s, changes that. 

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Nope

 

  On 11/13/2019 at 8:20 PM, HappyAndIKnowIt said:

What I read about removal proceedings, the IJ "can" pause proceedings for pending applications at USCIS.  

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Not can. MUST.

 

  On 11/13/2019 at 8:20 PM, HappyAndIKnowIt said:

The denial letter we received says nothing about any appeal or review other than by IJ during removal proceedings.  

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It won't. 

 

  On 11/13/2019 at 8:20 PM, HappyAndIKnowIt said:

It seems that if USCIS denies a followup waiver I751, that review would be considered by the IJ, and then it would seem reasonable that the IJ is not going to pause for a repeat of what was just denied and reviewed and upheld.  

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No. It doesn't work that way. They will stay (pause) it again. I will dig out the relevant legalese when I am home for you. 

Edited November 14, 2019 by mindthegap