Can I still work if I751 gets denied? (merged)

[geowrian 22,337]

Lots of correct answers so far, and also some incomplete information all around. First, the "simple" things...

1) If you go to the ROC interview alone (without a good reason like the spouse being deployed), it will be denied.

2) Item #1 does not apply if you switch to a divorce waiver, which can be done at the interview.

3) They will then send an RFE for the divorce decree. If you are unable to provide one by the deadline, they will deny the I-751.

4) You can then refile fine. It's another fee and another long wait, but it's treated like a brand new filing.

 

As for you question about being able to work if the I-751 is denied, the short answer is "yes".

The longer answer is also yes, but with a lot more technicalities around the circumstances...

Failure to file an I-751, or a denied I-751 technically terminates your LPR status. At the same time, you still have rights to contest the decision with an immigration judge, or to refile. In the meantime, you are entitled to evidence of of LPR status. So you are effectively still an LPR, although USCIS treats it as status being terminated. In practical terms, nothing changes...you can still work, get an I-551 ("green card") stamp, travel abroad and return with said stamp, etc.

An immigration judge cannot confirm the decision and terminate status while an I-751 is still pending...so refiling ASAP is important to get the ball in motion again.

 

1 hour ago, walter99 said:

I know it's not the subject, but if you are in a good marriage and your wife/husband dies after you have the permanent GC or after you get the conditional one, what rule does apply, the 3 years or the 5 years for N-400 ?

You would have to file under the 5 year rule (barring a special case for military). This applies even if your spouse passes away after filing under the 3 year rule but before being naturalized.

 

https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2

Quote

2. Loss of Marital Union due to Death, Divorce, or Expatriation

Death of U.S. Citizen Spouse

An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen dies any time prior to the applicant taking the Oath of Allegiance. ^[22] However, if the applicant is the surviving spouse of a U.S. citizen who died during a period of honorable service in an active-duty status in the U.S. armed forces, the applicant may be eligible for naturalization based on his or her marriage under a special provision. ^[23] 

 

[Dashinka 24,653]

3 hours ago, walter99 said:

I know it's not the subject, but if you are in a good marriage and your wife/husband dies after you have the permanent GC or after you get the conditional one, what rule does apply, the 3 years or the 5 years for N-400 ?

I agree with @geowrian as usual .  However, there are a few outliers.  I heard of one case where the USC spouse passed away between the interview and the oath ceremony and the LPR was still able to take the oath.

 

As to the OP, as others have said, if divorce is in the cards, it is best to get that started as the divorce timelines and immigration timelines rarely mesh.

 

Good Luck!

[geowrian 22,337]

5 minutes ago, Bill & Katya said:

I agree with @geowrian as usual .  However, there are a few outliers.  I heard of one case where the USC spouse passed away between the interview and the oath ceremony and the LPR was still able to take the oath.

Yup, there are very limited exceptions (detailed in the link to the USCIS policy manual and subsequent links there) In general, it is not permitted. If somebody were to obtain naturalization without that exception, it could be revoked due to mistake.

[walter99 40]

18 hours ago, geowrian said:

Yup, there are very limited exceptions (detailed in the link to the USCIS policy manual and subsequent links there) In general, it is not permitted. If somebody were to obtain naturalization without that exception, it could be revoked due to mistake.

It was a curiosity...it s not my case.

There should be exceptions. 

Thank you for your answers!

[mindthegap 2,590]

On 12/22/2019 at 3:15 AM, geowrian said:

Failure to file an I-751, or a denied I-751 technically terminates your LPR status. At the same time, you still have rights to contest the decision with an immigration judge, or to refile. In the meantime, you are entitled to evidence of of LPR status. So you are effectively still an LPR, although USCIS treats it as status being terminated. In practical terms, nothing changes...you can still work, get an I-551 ("green card") stamp, travel abroad and return with said stamp, etc.

An immigration judge cannot confirm the decision and terminate status while an I-751 is still pending...so refiling ASAP is important to get the ball in motion again.

Legally you remain an LPR even after a denial....the USCIS denial/termination letter is legally inaccurate as proven by case law, and other documents in the public domain. LPR status remains until a final determination of termination of status by a judge, and not before.

I, for example, am stamped back in with the annotation LPR or ARC on my entry stamp, the same as any other LPR is. No change at all, and definitely not paroled in. 

 

(data point: my I-551 stamps are all now annotated with 'TC-1' which marks it as  'spouse of a US citizen denied or re-opened' so CBP definitely know my status, and I always have to have a quick visit to secondary)

[geowrian 22,337]

21 hours ago, mindthegap said:

Legally you remain an LPR even after a denial....the USCIS denial/termination letter is legally inaccurate as proven by case law, and other documents in the public domain. LPR status remains until a final determination of termination of status by a judge, and not before.

I, for example, am stamped back in with the annotation LPR or ARC on my entry stamp, the same as any other LPR is. No change at all, and definitely not paroled in. 

 

(data point: my I-551 stamps are all now annotated with 'TC-1' which marks it as  'spouse of a US citizen denied or re-opened' so CBP definitely know my status, and I always have to have a quick visit to secondary)

I'm trying to keep a neutral viewpoint here. USCIS claims status is terminated. The INA - directly as written - backs this. In practice - based upon court decision - says status remain intact. But I personally am not ready to accept that USCIS is directly defying the courts - they have one viewpoint of the facts (including court decision) and the judiciary has another. The specifics get into very, very muddle case law IMO, and I doubt either of us is qualified to argue that one. 😆 So the "simple" answer for me is that one says one thing and the other says another, but at the end of the day it doesn't really matter as both sides agree that you are entitled to the stamp and retain work & travel benefits in the meantime.

Edited December 24, 2019 by geowrian

[MarkDallasTX 0]

hi and thank you for answering my post. I'm really confused because i hear different answers so i wanted to ask you this question. if you can answer, thank you in advance.

 

i just want to know this: i am separated from my wife. my i751 is pending and i will get an interview soon. if i go alone, i was told that i would get denied. 

Will i have to stop working? my green card and extension letter expired already. i was told that my status will be terminated when i751 gets denied. i know that i can go to judge and fix it but i am afraid between the denial and judge, i will lose my job. is this true?

why people say i won't be authorized to work if i751 gets denied but other people say only a judge can terminate the status. even lawyers say different things. thank you again. 

[MarkDallasTX 0]

hi and thank you in advance for help. i am separated but didn't file for divorce yet. marriage is real, im not afraid to prove but i want to know what are my options

 

my spouse says he can go to interview(in Dallas, TX) with me but if we go together and say that we will get divorce, will i get denied? I don't want to lie( we are separated and planning for divorce) but i am not sure if i should go to interview alone or with my spouse. 

 

a lawyer told me if i go alone, i will be denied. another one said if i can prove marriage was real, i may be approved. i am really confused and exhausted. 

 

please let me know if you have answers. thank you

 

Mark

[geowrian 22,337]

19 minutes ago, MarkDallasTX said:

i just want to know this: i am separated from my wife. my i751 is pending and i will get an interview soon. if i go alone, i was told that i would get denied. 

As noted a few times in this thread, if you go alone and do not switch to a divorce waiver, it will be denied. You can request the switch to a divorce waiver at the interview. If you don't have the final divorce decree at that time, they will send an RFE for it.

Failure to respond to the RFE with the requested divorce decree and within time will result in a denial.

If denied, you can refile.

 

19 minutes ago, MarkDallasTX said:

Will i have to stop working? my green card and extension letter expired already. i was told that my status will be terminated when i751 gets denied. i know that i can go to judge and fix it but i am afraid between the denial and judge, i will lose my job. is this true?

No. You can work just fine unless/until an immigration judge formally removes status.

You can complete an I-9 with either a green card (an I-551 stamp is fine, and can be obtained via an appointment) or a valid driver's license + unrestricted Social Security card. You can get the unrestricted Social Security card - if you don't have one already - with a valid green card (including the I-551 stamp again).

An employer is not supposed to revalidate work authorization if they used a green card to do so on their most recent I-9 for that employer.

 

19 minutes ago, MarkDallasTX said:

why people say i won't be authorized to work if i751 gets denied but other people say only a judge can terminate the status. even lawyers say different things. thank you again. 

I don't see any posts here saying that you can't work.

The technicalities of actual loss of status here is a complex legal question. But for all practical intents and purposes, you are treated just like any other green card holder unless an immigration judge revokes status.

[Boiler 45,764]

Well seems you will need to refile with a divorce waiver, then you will be interviewed by your self. Currently you are processing on the basis of a valid marriage which you do not have.

[Going through 5,671]

To clarify the above---you're not refiling (in other words, there's no additional fee or another petition to fill out), but requesting during your interview to proceed with a divorce waiver.  The 2nd lawyer is correct in that you will have to prove you entered the marriage with bonafide intent and lived in marital union until the marriage broke down.

 

The ROC cannot be approved without the final divorce decree which you will be RFE'd for after.  The catch, is that the RFE will only give you about 80 days or so to submit the final divorce decree, so you'll want to proceed with filing for divorce sooner rather than later.

Edited December 25, 2019 by Going through

[geowrian 22,337]

Existing thread:

 

[Going through 5,671]

Same answers here as in the existing thread, I see.  Not sure why another one was started.

[Nitas_man 3,100]

1 hour ago, MarkDallasTX said:

hi and thank you in advance for help. i am separated but didn't file for divorce yet. marriage is real, im not afraid to prove but i want to know what are my options

 

my spouse says he can go to interview(in Dallas, TX) with me but if we go together and say that we will get divorce, will i get denied? I don't want to lie( we are separated and planning for divorce) but i am not sure if i should go to interview alone or with my spouse. 

 

a lawyer told me if i go alone, i will be denied. another one said if i can prove marriage was real, i may be approved. i am really confused and exhausted. 

 

please let me know if you have answers. thank you

 

Mark

You’re in Texas?  You need to close out the divorce proceedings, work on getting a divorce decree, and interview by yourself.  
The case will switch to divorce waiver and you still need to provide proof that you entered the marriage in good faith.  Good luck.

[Ontarkie 14,323]

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