Can USC withdraw joint ROC ? (merged)

[HappyAndIKnowIt 24]

Update:  Yesterday, I was visited by two immigration officers from the Office of Fraud Detection and National Security.  Although the fraud case was opened regarding one particular filing, they asked questions about both MIL and the nature of my marriage to my soon to be ex-wife.

 

The reason I am posting is the following:  At one point, they asked me what I wanted to do about the jointly filed i-751.  My experience with this website has been that it doesn't much matter whether I withdraw it or not, my future ex-wife will have to go the divorce waiver route, since she has filed for divorce.  My impression from the USCIS agents was that it did matter, and they suggested I discuss with an attorney the ramifications because of the potential impact on the surrounding issues involved, e.g. divorce, criminal case against wife, custody, prevention of kidnapping, etc.

 

So... my trusted attorney-alternative forum members, what the heck are they talking about ?  What are the consequences to withdrawing it ?

[TBoneTX 45,301]

You might want to contact the FDNS officers to inquire more in detail.  They won't be able to give you legal advice, but they can tell you what they've seen happen.  This information will be helpful in guiding your attorney, who -- although he might be very good -- would be flying more blindly without it.

 

The FDNS interview sounds fascinating, and whatever you can say about them and their operations that would be of general use or insight to folks here will be highly valuable.

[HappyAndIKnowIt 24]

6 hours ago, TBoneTX said:

You might want to contact the FDNS officers to inquire more in detail.  They won't be able to give you legal advice, but they can tell you what they've seen happen.  This information will be helpful in guiding your attorney, who -- although he might be very good -- would be flying more blindly without it.

 

The FDNS interview sounds fascinating, and whatever you can say about them and their operations that would be of general use or insight to folks here will be highly valuable.

I will provide more detail to help the community here, but I need to delay that for a bit as it would be potentially helpful to the opposing sides in my various cases.

 

After thinking about it, and putting together bits and pieces of things they said, I am thinking that if I withdraw the I-751, my wife would be out of status until she filed with a waiver.  Correct me if I'm wrong, but if she is out of status, she would not legally be able to work.  My son's health insurance and mine are provided through her employer.

 

Is it true that she would be unable to work until she re-files, if I withdraw ?  Is there an allowed time window provided by USCIS after someone withdraws for them to re-file with a waiver before they become out of status or before they lose their permission to work ?

[geowrian 22,337]

She remains an LPR unless an immigration judge rules otherwise. So she is allowed to work still. Only if her I-751 is denied and then a judge removes her status would she lose her ability to legally work or her status.

Edited October 30, 2019 by geowrian

[HappyAndIKnowIt 24]

1 hour ago, geowrian said:

She remains an LPR unless an immigration judge rules otherwise. So she is allowed to work still. Only if her I-751 is denied and then a judge removes her status would she lose her ability to legally work or her status.

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 !!

[geowrian 22,337]

39 minutes ago, 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 !!

Correct - she will be allowed to work and be entitled to I-551 (green card) stamps until a judge says otherwise.

[HappyAndIKnowIt 24]

Update:

 

Wife received denial of I-751 today.  The letter notes the I-751 does not meet the requirements for a jointly filed petition, with her divorce filing and my withdrawal from the joint application.  It goes on to say "you may request a review of this determination in removal proceedings."  The letter also cites that "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.

 

I assume an NTA is not far behind ? 

 

It doesn't appear that she can re-file with a divorce waiver, can she ?  It seems it would not be timely filed ?  Frankly, I don't understand why her immigration attorney would not have amended the filing to include a divorce waiver.  I thought I read or heard about that possibility somewhere.  From my reading of the document, she can only fight in immigration court ?  I guess that would serve the same purpose as filing with a divorce waiver, now that I think about it.

 

The document doesn't specifically mention any allegation of fraud, other than that line about "good faith" mentioned above.

 

So, that's an update and the process of my experience.  No interview with my wife.  The FDNS agents interviewed me.  No RFE.  Nothing other than the opportunity to fight during removal proceedings in immigration court.

 

... and MIL is STILL HERE.  It probably didn't help my wife that she was also here when the FDNS officers showed up.  As far as I know (looking at the website), her two applications for extension of her stay on tourist visa are still pending.

 

[geowrian 22,337]

1 hour ago, HappyAndIKnowIt said:

Wife received denial of I-751 today.  The letter notes the I-751 does not meet the requirements for a jointly filed petition, with her divorce filing and my withdrawal from the joint application.  It goes on to say "you may request a review of this determination in removal proceedings."  The letter also cites that "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.

 

I assume an NTA is not far behind ? 

Yes, "not far" in immigration terms. That could be weeks to months or longer nowadays.

 

1 hour ago, HappyAndIKnowIt said:

It doesn't appear that she can re-file with a divorce waiver, can she ?  It seems it would not be timely filed ?  Frankly, I don't understand why her immigration attorney would not have amended the filing to include a divorce waiver.  I thought I read or heard about that possibility somewhere.  From my reading of the document, she can only fight in immigration court ?  I guess that would serve the same purpose as filing with a divorce waiver, now that I think about it.

She can refile just fine. Yes, it would be considered untimely/late filed, but she can do so with a letter explaining why it was filed late (her previous I-751 was denied is an acceptable reason).

If she refiles, anything with a court decision would wait until USCIS adjudicates the new I-751. It can avoid the NTA altogether.

[HappyAndIKnowIt 24]

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 ?

[payxibka 10,045]

If you pulled your support on the i485,  then the applicant has no basis to have the i765 approved 

[USS_Voyager 1,972]

6 minutes ago, payxibka said:

If you pulled your support on the i485,  then the applicant has no basis to have the i765 approved 

I think they're talking about I-751, not I-765

[HappyAndIKnowIt 24]

2 minutes ago, USS_Voyager said:

I think they're talking about I-751, not I-765

Yes.  Definitely I-751.  But it seems reasonable that demonstrating good faith would not be enough using a jointly filed petition when the joint filer withdrew.  It's just that the language on the first page references that "good faith" and circumventing immigration laws language and I don't know why.  A signal to future processing of the incoming divorce waiver petition, maybe ?  To have in the case file ?

[payxibka 10,045]

3 minutes ago, USS_Voyager said:

I think they're talking about I-751, not I-765

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. 

[payxibka 10,045]

2 minutes ago, HappyAndIKnowIt said:

Yes.  Definitely I-751.  But it seems reasonable that demonstrating good faith would not be enough using a jointly filed petition when the joint filer withdrew.  It's just that the language on the first page references that "good faith" and circumventing immigration laws language and I don't know why.  A signal to future processing of the incoming divorce waiver petition, maybe ?  To have in the case file ?

....

Edited November 12, 2019 by payxibka

[Boiler 45,520]

Needs to file with a divorce waiver.