Please help - i751 is denied and i got screwed by lawyers and USCIS

[geowrian 22,337]

54 minutes ago, ColoradoGirl1985 said:

i think you are correct in many things.. i called uscis and talked to tier 2 officer. he said that my i751 is denied but i didn't get notice yet. online tool is still saying fingerprints were taken.

he said uscis unlikely open the case again and my only options are either refile i751 or go to immigration court. he didn't say which is better.

Thanks for the updates.

They cannot provide legal advice (neither do I!). Generally filing the I-751 makes more sense, unless you hire an experienced immigration attorney and they suggest otherwise. I don't know your full set of circumstances, but if the reason for denial was due to not showing up for an interview, refiling (and likely getting another interview) makes the most sense.

I concur about USCIS being unlikely to reopen the case...that's just the way it goes really. You generally have to show that they made a mistake. The main reason I mentioned talking to a Tier 2 is I have seen a handful of cases (AOS cases I believe, not ROC) where they were able to reopen the case after missing an interview. Not the norm, but I have seen people report it happening.

 

54 minutes ago, ColoradoGirl1985 said:

officer said until i show up at court, i am legal and i can get a stamp on my passport.

Yes, you can get an I-551 stamp and that will function exactly like the plastic card. Once you refile and have the stamp (the extension letter only extends the original validity period of the card, not 18 months from the date of filing), you can travel and such just like before. You just may go through secondary inspection upon return...not an issue, just usually a little extra time at POE.

 

54 minutes ago, ColoradoGirl1985 said:

i am just worried i will miss more mails(i have no problem with post office but scared of uscis making same mistake again)

 

how can i make sure i dont miss mail from immigration court?

Make sure your address is on file, name is on the mailbox, etc. You can also sign up for USPS Informed Delivery to get images of mail arriving on the current day. It doesn't stop USCIS from mistaking to mail something, but it can possibly catch if they do mail it and it gets lost between loading up the truck and delivery to your mailbox.

 

[mindthegap 2,590]

7 hours ago, geowrian said:

Tagging @mindthegap as the de-facto guru on denied I-751s.

Thanks. Not posting on here much right now, partially due to fairly obvious life stuff, and partially due to the over-reaction & patronising actions of a certain moderator on here - my query of which has gone completely unanswered. 

 

 

3 hours ago, ColoradoGirl1985 said:

i called uscis and talked to tier 2 officer. he said that my i751 is denied but i didn't get notice yet. 

he said uscis unlikely open the case again and my only options are either refile i751 or go to immigration court. he didn't say which is better.

 

They can't give legal advice. They can barely give facts,  which is what he has given you, although not complete.

 

You options are:

You can write letters and try and get it reversed pointing out their error (difficult to get someones attention, uncertain timeline)

You can file an I-290B (cost is similar to an I-751, uncertain timeline, and they may well reject as not applicable given it is only supposed to be used when they have made procedural errors or an incorrect application of law)

You can wait and go to immigration court (could be years away)

You can file a fresh I-751 (quick, and easy)

 

3 hours ago, ColoradoGirl1985 said:

online tool is still saying fingerprints were taken.

If/when you refile, you will have to do fingerprints again. For most purposes ignore the old receipt...you will get new receipt numbers for a new filing.

 

3 hours ago, ColoradoGirl1985 said:

officer said until i show up at court, i am legal and i can get a stamp on my passport. 

 

Correct. You remain a LPR until a final order of removal by an immigration judge, and are entitled to proof of status in the form of a stamp (s), and retain the same rights/responsibilities as prior to denial.

Once you refile, go to an infopass appointment with the receipt and get a stamp.

 

3 hours ago, ColoradoGirl1985 said:

how can i make sure i dont miss mail from immigration court?

You aren't the first to not receive mail that USCIS seemingly never sent in the first place, and you won't be the last. It has certainly happened to me.

 

File an AR-11. https://www.uscis.gov/ar-11

Update your USCIS online account and email/SMS alerts for activity.

Call to confirm the change of address. 

Sign up for USCIS informed delivery.

 

That is all you can do.

 

3 hours ago, ColoradoGirl1985 said:

lawyer is asking for $3000 for refiling i751. i can't afford it. i don't want to make mistake but i don't know if i can do this on my own. i have no problem with proving my marriage with my husband. i just want to know what is the best process.

 

You can fill in the form, send with a cover letter, and specify that evidence from the previous filing is still current and relevant to the new filing. You can always add more evidence at a later date if you have any.

It isn't hard to fill in...and the accompanying instructions are pretty easy to follow. Certainly not $3000 worth of a lawyers billable hours! Crazy.

 

 

Either way, decide quickly. If you file it quickly enough, you should avoid it getting sent on to immigration court proceedings and it will remain within USCIS.

 

 

Edited April 13, 2020 by mindthegap

[ColoradoGirl1985 1]

@mindthegap thank you for detailed answer.

 

if it goes to court, can i still refile a new i751? i don't know if i am late. all of this missing appointment etc happened months ago but i received detail letter 2 weeks ago.

 

my second question is, if it goes to court, can i travel abroad and come back? am i stuck in the us for years?

[ColoradoGirl1985 1]

6 hours ago, geowrian said:

Thanks for the updates.

thank you again. i am thinking about refiling a brand new i751 with divorce waiver. i don't know if it is too late to do. can i do it even if they already put me in court?

[geowrian 22,337]

3 hours ago, mindthegap said:

Sign up for USCIS informed delivery.

USPS*

 

Also, thanks for posting with the helpful info!

[geowrian 22,337]

5 minutes ago, ColoradoGirl1985 said:

if it goes to court, can i still refile a new i751? i don't know if i am late. all of this missing appointment etc happened months ago but i received detail letter 2 weeks ago.

 

my second question is, if it goes to court, can i travel abroad and come back? am i stuck in the us for years?

mindthegap may or may not elaborate (As they stated, they're not on as often anymore), but I'll do my best to answer these....

 

You can file an I-751 up until the immigration judge (IJ) makes a final decision. That said, if one does get a Notice To Appear (NTA) for immigration court, do show up.

 

Yes you can travel with a valid I-551 stamp.

[ColoradoGirl1985 1]

5 minutes ago, geowrian said:

mindthegap may or may not elaborate (As they stated, they're not on as often anymore), but I'll do my best to answer these....

 

You can file an I-751 up until the immigration judge (IJ) makes a final decision. That said, if one does get a Notice To Appear (NTA) for immigration court, do show up.

 

Yes you can travel with a valid I-551 stamp.

okay so until the court date, i can file a new i751 correct? so if they already sent me to court, i do not have to wait until i show up at court and i can just refile i751 and have uscis approve it before court date(i am only asking because it may take years) 

 

am i understanding correctly?

[geowrian 22,337]

19 minutes ago, ColoradoGirl1985 said:

okay so until the court date, i can file a new i751 correct? so if they already sent me to court, i do not have to wait until i show up at court and i can just refile i751 and have uscis approve it before court date(i am only asking because it may take years) 

 

am i understanding correctly?

You can file the I-751 at any point until the IJ makes a ruling to revoke status. If filed, USICS will adjudicate it and the IJ will hold off on making a decision.

If filed before the NTA is issued (so no court date yet), I do not believe they will issue an NTA. Somebody correct me if I'm wrong here, but that's my understanding of the process for a denied I-751.

If an NTA is issued, you can still file the I-751, but be sure to show up for court...you don't want them to make a ruling while absent.

[mindthegap 2,590]

12 hours ago, ColoradoGirl1985 said:

 i do not have to wait until i show up at court and i can just refile i751 and have uscis approve it before court date(i am only asking because it may take years) 

Correct.

If it was to get to a court date before adjudication, the judge, upon seeing there is a pending I-751, would stay (pause) proceedings until adjudication of that I-751, and compel USCIS to do so. 

 

12 hours ago, geowrian said:

If filed before the NTA is issued (so no court date yet), I do not believe they will issue an NTA. Somebody correct me if I'm wrong here, but that's my understanding of the process for a denied I-751.

Thanks to my FOIA you can see some of their internal forms and options.... the no show was for a missed interview that they never sent an appointment out for...sound familiar?

 

 

 

 

 

I can only speak for myself, but you can see which box they checked for me when they chose to deny...I refiled within just a couple of days so perhaps that is why 2.5yrs later I have no NTA and nothing showing on the automated court line. YMMV.

 

 

With hindsight, I really should have filed an I-290B, as they absolutely did not follow their own procedures regarding adjudication and malicious allegations, but you live and learn...all goes in the folder of USCIS errors over this continuing 5yr+ saga.

 

 

 

 

13 hours ago, ColoradoGirl1985 said:

if it goes to court, can i still refile a new i751? i don't know if i am late. all of this missing appointment etc happened months ago but i received detail letter 2 weeks ago.

You can file a (or multiple) I-751s at any time until a final order of removal by an immigration judge. They are the ONLY ones who can terminate your LPR status.

 

13 hours ago, ColoradoGirl1985 said:

my second question is, if it goes to court, can i travel abroad and come back? am i stuck in the us for years?

Yes You remain a LPR, with the rights and responsbilities, including work, and travel. You are entitled to a stamp genco opinion 96-12 (plus subsequent case law) clarifies this (my bolding).

 

 

"96-12 Status of a conditional permanent resident after denial of I-751 during pendency of review by EOIR
August 6, 1996 

Status of a Conditional Permanent
resident after denial of I-751 during
pendency of review by EOIR

Office of the
General Counsel

I. QUESTIONS

The Benefits Division requests a legal opinion concerning the following questions:
1) What is the status of a conditional permanent resident after his I-751 has been denied by the director and his case is under review by the EOIR? Is the alien entitled to an I-551 stamp, adapted to show that his case is pending? Is the alien entitled to any other benefits associated with legal permanent resident status?

2) If an Order to Show Cause has not been issued, what is the alien's status and what documentation is the alien entitled to possess?
II. SUMMARY CONCLUSION

The director should issue the Order to Show Cause at the time he or she provides written notice to the alien of the decision to deny the Form I-751.

Strictly speaking, a conditional permanent resident whose Petition to Remove Conditions on Residence (Form I-751) has been denied by the director is no longer a lawful permanent resident, as of the date of the director's notice of termination. However, because the alien has a right under statute and regulation to request review of such determination in deportation proceedings, the conditional permanent resident whose status has been terminated should be issued a temporary I-551 during the pendency of such review. INS should not approve any Petition for Alien Relative (Form I-130) filed by the alien on behalf of another alien during the pendency of such proceedings.

III. ANALYSIS

Section 216 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1186a, provides that an alien spouse who is granted permanent resident status by means of marriage to a United States citizen which took place less than two years earlier shall be granted such status on a conditional basis. Unless otherwise specified by the statute or regulations, an alien granted permanent resident status pursuant to section 216 enjoys the same rights, privileges, responsibilities, and duties as other legal permanent residents. 8 C.F.R. § 216.1

The conditional basis of residence is removed via the approval of a Petition to Remove the Conditions on Residence (Form I-751) filed by the alien and spouse within 90 days before the second anniversary of the date on which the alien obtained lawful admission for permanent residence. The director of the regional service center has been delegated sole authority to adjudicate the Form I-751. 8 C.F.R. § 216.4(c). Where the director finds derogatory information pertaining to the validity of the marriage, he or she must offer the alien the opportunity to rebut such information. Id. If the alien is unable to overcome such derogatory information, the director ''may deny the joint petition, terminate the alien's permanent residence and issue an order to show cause to initiate deportation proceedings.'' Id. (emphasis added). Moreover, if the director proceeds to deny the Form I-751, he or she must provide written notice specifying the basis for the denial to the alien ''and shall issue an order to show cause why the alien should not be deported from the United States.'' 8 C.F.R. § 216.4(d)(2) (emphasis added). This regulatory language clearly provides that once the director denies the joint petition and terminates the alien's permanent residence, an order to show cause must follow.

The regulations further specify that the alien's lawful permanent residence status is terminated as of the date of the director's written decision. 8 C.F.R. § 216.4(d)(2). As of the date of denial, the alien is ''instructed to surrender any Alien Registration Receipt Card previously issued by the Service.'' Id. Accordingly, an alien whose Form I-751 has been denied has no status as a conditional permanent resident and is not entitled to an Alien Registration Receipt Card. Therefore, in light of the termination date of an alien's lawful permanent residence, and the gap that ensues if an order to show cause is not issued, failure to timely issue the order to show cause leaves INS vulnerable should an alien file an action in mandamus to compel performance of that requirement.

Concomitantly, an alien whose Petition to Remove Conditions on Residence has been denied by the director may seek review of the decision in deportation proceedings. INA § 216(c)(3)(D), 8 U.S.C. § 1186a(c)(3)(D), 8 C.F.R. § 216.4(d)(2). In fact, the statute specifically conditions termination of permanent resident status upon review in deportation proceedings. 1 Therefore, the terminated conditional lawful permanent resident should be issued a temporary Form I-551, during the pendency of the deportation proceedings. Cf. Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991)(''To revoke an LPR's green card pending completion of the deportation process would severely undermine the integrity of the process itself and impose significant hardship on the alien involved''). To that end, the INS' policy of placing an I-551 stamp on an alien's I-94 arrival card or passport is considered appropriate temporary evidence of legal permanent resident status during the duration of the deportation proceedings. Memorandum from James J. Hogan, INS Executive Associate Commissioner (Nov. 11, 1992), reported and reproduced in 69 Interpreter Releases 1560 (Dec. 14, 1992). Further, the temporary I-551 may be used to travel, to establish employment eligibility, or to establish lawful permanent resident status for purposes of obtaining school financial aid and other benefits."

 

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13 hours ago, ColoradoGirl1985 said:

thank you again. i am thinking about refiling a brand new i751 with divorce waiver. i don't know if it is too late to do. can i do it even if they already put me in court?

As above, you can file at any time prior to a final order of removal by an immigration judge, at which point you are no longer a LPR and this option is not available to you.

 

I am not a lawyer, but you should consider filing a fresh I-751 at this time, especially given the current covid-19 circumstances dictate that it isn't possible to get an infopass appointment to speak to a supervisor and try to get this reversed, and it just isn't possible to do so on the mis-information line. Speak to multiple attorneys if you feel prudent to do so....(not all attorneys are created equal).

If you do decide to refile, I would suggest doing so quickly.

 

13 hours ago, geowrian said:

USPS*

 

🙈

 

 

Edited 16 hours ago by mindthegap

[ColoradoGirl1985 1]

1 hour ago, mindthegap said:

As above, you can file at any time prior to a final order of removal by an immigration judge, at which point you are no longer a LPR and this option is not available to you.

 

 

14 hours ago, geowrian said:

You can file the I-751 at any point until the IJ makes a ruling to revoke status. If filed, USICS will adjudicate it and the IJ will hold off on making a decision.

If filed before the NTA is issued (so no court date yet), I do not believe they will issue an NTA. Somebody correct me if I'm wrong here, but that's my understanding of the process for a denied I-751.

If an NTA is issued, you can still file the I-751, but be sure to show up for court...you don't want them to make a ruling while absent.

thank you so much for answers because uscis messed up mails now i'm worried if they sent me noa for court and that got lost too. all of this missing appointment thing happened months ago but i got denial only 2 weeks ago. how can i make sure they didn't schedule me with court yet? or is there a way i can see if i missed a court appointment too? i don't know if this is possible but because of what happened i wanted to check

[mindthegap 2,590]

1 minute ago, ColoradoGirl1985 said:

 how can i make sure they didn't schedule me with court yet? or is there a way i can see if i missed a court appointment too? i don't know if this is possible but because of what happened i wanted to check

1-800-898-7180 (toll-free) - have your A# handy.

It is automated/touch tone.

https://www.justice.gov/eoir/customer-service-initiatives

 

[ColoradoGirl1985 1]

2 hours ago, mindthegap said:

1-800-898-7180 (toll-free) - have your A# handy.

It is automated/touch tone.

i called and it said it cannot find any info so i assume i am not in court proceedings yet.

 

@mindthegap you were very helpful to answer thank you. 

[ColoradoGirl1985 1]

@mindthegap @geowrian

 

hi, thank you for answering all questions. you were very helpful for me.

i think i decided what to do, if i write here can you please review my plan/knowledge and let me know if it sounds good? 

i know you are not lawyer but this forum is my only help to figure out in short time? i just want to check with your knowledge before i send my application.

 

i will refile i751 with waiver on my own. my divorce is not final and i will get a letter from my husband. i don't know how long divorce will take. i didn't receive official denial letter for i751 yet.

 

1 - if i refile i751, uscis will accept it but give me rfe for divorce waiver right? what if i cannot get my divorce final within 90days? will they give me more time? 

2 - if i refile i751 and they also send me to court, what happens? i know i will have to show up at court but will judge make a decision there or wait until uscis makes a decision again?

3 - as long as i know my marriage was real and provide enough evidence including my husbands letter, is there any way/reason i should be worried to be put in deportation?

4 - is it possible uscis to approve i751 with waiver without interview?

5 - is it true that my new i751 will take over 1.5 years to be completed?

6 - i will be eligible to apply for naturalization again next year. because my i751 and n400 is denied, have i lost my eligibility? or is it difficult for me to be naturalized now? (denial letter says my status is terminated)

 

thank you very much.

[mindthegap 2,590]

1 hour ago, ColoradoGirl1985 said:

 

1 - if i refile i751, uscis will accept it but give me rfe for divorce waiver right? what if i cannot get my divorce final within 90days? will they give me more time? 

Yes.

Didn't realise you weren't fully divorced yet. Makes things awkward... standard RFE reponse time is 90 days and you MUST respond. If you don't respond they will deny you (again!)

1 hour ago, ColoradoGirl1985 said:

2 - if i refile i751 and they also send me to court, what happens? i know i will have to show up at court but will judge make a decision there or wait until uscis makes a decision again?

As I posted above, if in court the judge discovers there is a pending I-751, court proceedings are stayed (haulted/paused) until USCIS has adjudicated it.

 

1 hour ago, ColoradoGirl1985 said:

3 - as long as i know my marriage was real and provide enough evidence including my husbands letter, is there any way/reason i should be worried to be put in deportation?

Divorce is not a reason for I-751 denial.

If it does go to court, the onus switches to USCIS to demonstrate it was not a bona-fide marriage, as opposed to the I-751 process where the onus is on you to demonstrate with evidence that it was.

 

1 hour ago, ColoradoGirl1985 said:

4 - is it possible uscis to approve i751 with waiver without interview?

Possible, yes. Likely, no.

 

1 hour ago, ColoradoGirl1985 said:

5 - is it true that my new i751 will take over 1.5 years to be completed?

Yes. You go to the back of the line. 

Add in this covid-19 delays/closures which will further add to the backlog...who knows how long.

 

1 hour ago, ColoradoGirl1985 said:

6 - i will be eligible to apply for naturalization again next year. because my i751 and n400 is denied, have i lost my eligibility? or is it difficult for me to be naturalized now? (denial letter says my status is terminated)

 

No you have not lost your eligibility. Your status has not been terminated - the USCIS letter is legally wrong.

 

However, be cautious. if you apply for your N-400 again under the five year rule, as per USCIS policy, it will be combined with the new I-751 for adjudication together and you will then be in the same position as me....that is to say, with a still outstanding I-751 that cannot be adjudicated by itself, and an N-400 that they have stalled on (I had an interview scheduled over a year ago, turned up, waited, and they cancelled it on the day). Somewhat in limbo still.

 

[ColoradoGirl1985 1]

@mindthegap thank you for respond. i hope your situation will get better soon too.

 

so all i have to do is really apply for a new i751 and submit divorce paper after they send me RFE. and if i can't send it on time, i will need to reapply again because they will deny it? so annoying.

 

it is so confusing that uscis says my status is terminated and one lawyer says yes its true, other lawyer says no. (second lawyer says what you say)