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

[mindthegap 2,590]

1 hour ago, ColoradoGirl1985 said:

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)

Not all lawyers are created equal.

 

I can only speak from my experience, but as you can imagine I rabbit holed a fair amount on this stuff when I received my denial...pulling out all sorts of oft overlooked and hidden documents and stuff.

 

1 hour ago, ColoradoGirl1985 said:

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.

Well.... that would be silly and a waste of money and stress.

So, unless you are certain you will have the final divorce decree within, say 100 days or so of filing (allowing time for them to actually issue the RFE)....then perhaps wait until you have the divorce decree in hand and then submit it.

 

I know, I know, you are thinking, what? 

 

However, filing with a divorce waiver is permitted at any time between becoming a permanent resident and a final order of removal by an immigration judge...it is stated in law, USCIS procedure, and it even says so in the instructions for the avoidance of doubt:

 

 

So, now knowing your full situation, what I would suggest is...prepare an I-751 and don't send it yet.

 

In the meantime, while you are awaiting the divorce to become final, write, email, call, try and make an emergency infopass, or whatever you can to pester the hell out of them to try to get it reversed on the basis of you not receiving the interview appointment. This can, does, and has happened to people, it is just getting their attention that is the issue as USCIS aren't really the easiest to contact, let alone the correct person.

If it doesn't work and you get no joy, THEN file a new I-751, as you are legally permitted to. 

 

Yes, by doing this you may have a concurrent & scary NTA issued in the meantime, but you are not breaking any regulations by filing when you have the divorce in hand.

 

Hope that helps.

 

[ColoradoGirl1985 1]

@mindthegap thanks again. i trust your experience but i found a lawyer from local church in colorado and he says we need to refile i751 asap. 

he says it is very unlikely that uscis admits they made a mistake. he is sure uscis can show a record on their side to prove appointment was scheduled so he doesn't want to waste time. i'm tired and upset already and want to follow his advise. uscis rep confirmed that my i751 is denied but i don't have a denial letter yet.

 

so i will prepare and send a new i751 while my divorce is pending. my understanding from what you say is:

 

1 - if they rfe for divorce decree and i cannot send it on time, they will deny it without giving me more time. correct? and then i will have to refile. what a pain.

2 - when i'm eligible for 5 year naturalization, i can file another n400 and i can still be naturalized correct? 

3 - lawyer is saying that if we file fast enough i751, uscis may not put me in court. that's what he says. i don't know what it means.

 

thanks again.

[Liam2021 583]

39 minutes ago, ColoradoGirl1985 said:

@mindthegap thanks again. i trust your experience but i found a lawyer from local church in colorado and he says we need to refile i751 asap. 

he says it is very unlikely that uscis admits they made a mistake. he is sure uscis can show a record on their side to prove appointment was scheduled so he doesn't want to waste time. i'm tired and upset already and want to follow his advise. uscis rep confirmed that my i751 is denied but i don't have a denial letter yet.

 

so i will prepare and send a new i751 while my divorce is pending. my understanding from what you say is:

 

1 - if they rfe for divorce decree and i cannot send it on time, they will deny it without giving me more time. correct? and then i will have to refile. what a pain.

2 - when i'm eligible for 5 year naturalization, i can file another n400 and i can still be naturalized correct? 

3 - lawyer is saying that if we file fast enough i751, uscis may not put me in court. that's what he says. i don't know what it means.

 

thanks again.

2. Yes, you can file for N400 under 5 year rule. However, USCIS will not approve your N400 until your I-751 resolve( approved).

Good luck.

[mindthegap 2,590]

1 hour ago, ColoradoGirl1985 said:

1 - if they rfe for divorce decree and i cannot send it on time, they will deny it without giving me more time. correct? and then i will have to refile. what a pain.

2 - when i'm eligible for 5 year naturalization, i can file another n400 and i can still be naturalized correct? 

3 - lawyer is saying that if we file fast enough i751, uscis may not put me in court. that's what he says. i don't know what it means.

 

thanks again.

1- yes. Not a lot of people know (I mean why would they?) that multiple I-751s can be filed, so you could refile again if that was to happen. 

 

2- yes, but remember that your n-400 cannot be approved until the I-751 is also approved, which may happen at the same time, may speed it up, or may delay the whole thing - pot luck at this point.

 

3 - yes, exactly as I said in one of my previous replies to you - this was certainly the case for me in that I refilled quickly enough that it didn’t get sent to court.

However, if the refile ultimately gets denied because your divorce isn’t final in time to respond to the RFE, you will be back in exactly the same situation having wasted $680 and having to spend the same again to re, re-file again. 
 

 

oh, and if you do refile, don’t forget you have to pay the biometric fee again, AND attend your biometrics appointment. 

[NikLR 13,227]

On 4/13/2020 at 1:36 PM, ColoradoGirl1985 said:

@geowrian 

 

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.

 

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

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?

 

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.

 

 

Did you speak to a tier 2 or the first person to answer? 

[ColoradoGirl1985 1]

thank you for all the answer, lawyer says we need to refile asap but after hearing from you i'm thinking what if divorce doesnt finish within 90days. 

 

does uscis send rfe and give 90days soon after i file i751?

[ColoradoGirl1985 1]

does uscis put me in court right after they deny i751? i mean if my i751 is denied on jan 1st 2020, is it possible that they don't put me in court in next couple months?

 

i'm only asking because how much i have to refile i751. i have to get all the paper etc, i don't want to rush and make a mistake.

 

thanks again

[Sam_Son_83 17]

1 hour ago, ColoradoGirl1985 said:

does uscis put me in court right after they deny i751? i mean if my i751 is denied on jan 1st 2020, is it possible that they don't put me in court in next couple months?

 

i'm only asking because how much i have to refile i751. i have to get all the paper etc, i don't want to rush and make a mistake.

 

thanks again

From denial to court would almost certainly take longer than a couple of months.

I wasn't denied, but was in a pretty bad situation anticipating denial. According to one of the best immigration attorneys in the state it would have taken several months, but more likely between 1-2 years for me to appear in court.

[Ontarkie 14,234]

18 hours ago, ColoradoGirl1985 said:

thank you for all the answer, lawyer says we need to refile asap but after hearing from you i'm thinking what if divorce doesnt finish within 90days. 

 

does uscis send rfe and give 90days soon after i file i751?

It will be most likely be months before they send you an RFE for the divorce. Once you get the RFE that is when the 90 days starts

[ColoradoGirl1985 1]

@geowrian and @mindthegap and other friends

if you can give your input on this i would appreciate

 

i'm still waiting for official denial letter.(its been over 3 weeks) 

i checked immigration court system with my A number and it seems like i am not in removal proceedings yet.

somebody said uscis will put me in removal proceedings and court because i751 is denied which make sense.

 

After i file I751 with waiver and with a stamp on my passport, if they put me in removal proceedings, can i travel to my home country(russia)?

they say i should not travel if i am in removal proceedings. but i'm worried if something urgent happens, am i stuck in us until my i751 gets approved?

they said even after i file a new i751, uscis can still put me in removal proceedings. please let me know if you have any input thank you.

[mindthegap 2,590]

42 minutes ago, ColoradoGirl1985 said:

 

After i file I751 with waiver and with a stamp on my passport, if they put me in removal proceedings, can i travel to my home country(russia)?

they say i should not travel if i am in removal proceedings. but i'm worried if something urgent happens, am i stuck in us until my i751 gets approved?

 

Please don't skim-read my previous replies - amongst other things I already posted Genco 96-12 in its entirety which answered your question.

"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."

 

 

 

Once you refile, you will get your receipt/extension letter (which isn't an extension letter as your card has expired), then you go get a stamp.

That stamp will be annotated 'TC-1' which is a code that shows any immigration official that you are/were a spouse of a US citizen with a refiled/reopened case.

 

When you re-enter the US, you will have to go to secondary for them to verify your status. This shouldn't take long - every single time for me it it has been just a couple of minutes. 

Your entry stamp will be normal, and will have LPR (lawful permanent resident) or ARC (alien registration card) written as normal (ie, you have been admitted as normal and correctly as a permanent resident, and not paroled in, which is something very different).

 

 

 

Edited April 20, 2020 by mindthegap

[ColoradoGirl1985 1]

1 hour ago, mindthegap said:

 

Please don't skim-read my previous replies - amongst other things I already posted Genco 96-12 in its entirety which answered your question.

"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."

 

 

 

Once you refile, you will get your receipt/extension letter (which isn't an extension letter as your card has expired), then you go get a stamp.

That stamp will be annotated 'TC-1' which is a code that shows any immigration official that you are/were a spouse of a US citizen with a refiled/reopened case.

 

When you re-enter the US, you will have to go to secondary for them to verify your status. This shouldn't take long - every single time for me it it has been just a couple of minutes. 

Your entry stamp will be normal, and will have LPR (lawful permanent resident) or ARC (alien registration card) written as normal (ie, you have been admitted as normal and correctly as a permanent resident, and not paroled in, which is something very different).

 

 

 

thanks again and i totally understand what you mean. in paper it says it is perfectly okay to travel with a stamp.

but i'm only asking after speaking with an attorney. (and sorry that i keep asking here because i can't afford it anymore and i want to double check everything attorney says)

 

he is saying that i should not travel if uscis puts me into removal proceedings which means deportation. if i am supposed to show up at court, he says even if i have a new i751 pending, he says i should not travel.

he says if i travel outside of us after i get NOA for immigration court, it means i self deport myself. 

 

i am just confused why he is very concerned when law says(like you say) that i can travel with the stamp and i751 receipt.

 

again i'm just confused with different things i hear. i totally believe and understand what you say. i know you cannot say don't listen to lawyer etc but i hope you understand that i'm concerned with every little risk now. so i'm trying to understand what the risk is here so i can make a smart decision.

 

he is not saying i will be denied when i return, but i get really nervous even if there is low risk so i hope you understand where i am coming from. 

 

i hope it makes sense.

 

thanks again.

[mindthegap 2,590]

 

In that case, refile quickly before it gets sent on to commence court proceedings.

 

 

Attorneys give their opinion and interpretation of the law. Doesn't mean they are correct.

 

Your attorney is also missing out several other key things:

1)  If you have an NTA for a hearing, it is not a final order of removal, just as being arrested/charged for something does not make you guilty of it, an NTA for an immigration court hearing does not mean you have lost your status and have an automatic order of deportation.

2) An immigration judge is the only person who can issue a final order of removal/terminate someones status,. As much as the USCIS district directors letter would have you believe they have this power (and I am sure they would love to), they cannot.

3) You cannot be given a final order of removal and thus have your status as a LPR terminated without having that hearing.

4)If you were to miss the hearing while overseas and it be held in abstentia, and a final order of removal/termination made in your absence, then yes, you would have issues.

 

 

If you had a final order and left of your own accord, that is self deportation. Leaving the country without having your status terminated is not self-deportation.

You remain a LPR. You have rights and protections under the law and are entitled to due process.

This does not change.

 

 

I can only speak from my own experiences, but I refiled within a couple of days, and 2.5years later no NTA & no court proceedings showing on the automated line, and I have left and re-entered multiple times since with the procedure as outlined above. I would under no circumstances have left if there was any possibility of not being allowed to re-enter.

 

 

 

Now forgive me, I am trying not to dwell/stress over my own ongoing situation, but thinking about & replying to this is bringing it to the forefront of my mind, so I'm not sure I can contribute further at this time.

 

 

[Villanelle 4,122]

@mindthegap Your contributions are greatly appreciated! Please do what you need to do to take care of yourself though. I'll keep an eye on this thread and try to answer any additional questions that come up- Im not as knowledgeable as you are with this (I dont know if anyone is  lol) but I am confident I can answer routine questions.  And then you can chip in if I miss something.

 

@ColoradoGirl1985 often attnys are overly cautious. They dont want to tell someone its OK to travel and then the person leaves the US and then the case is ruled against them for whatever reason while they are overseas and they are then screwed and blame the attny.  But do not travel unless you need to. And if you do travel make sure to check beforehand that everything is pending the way it should and have someone able to check your mail in person in addition to using informed delivery from USPS. 

 

Now you may get a NTA or you may not. Mindthegap has been dealing with this a long time. 2.5 years and no NTA. However there is another user that reported (happyandknowit username) that their (ex)wife got a NTA due to 751 issues and pointed to newer policies dictating they send NTAs. From my observations NTAs are still a hit or miss type scenario. Some people will get them, some wont. Theres no way to know if you will get one or not. Hopefully you don't. Just keep checking the 800 number periodically in addition to monitoring your mail and if you get one then explore what needs to be done at that point. Do not stress about things that havent happened yet.

 

But going back to your original post you can either attempt to appeal the denial based on the fact that you are not divorced and not getting the interview letter. If the appeal is granted YES you can still be approved on the joint 751 as long as you do not have the final divorce decree and your husband attends the interview in support of the joint filing. Just to be extra clear - you can not have a divorce decree issued until after the 751 is approved. So if you go to a rescheduled interview- cant have a final decree- and then if not approved same day after the interview you can not get a final decree issued until they make a decision. If you do they can not approve your joint and if they do approve it and it ends up your divorce decree is dated prior to a joint approval you will have problems. Hope that makes sense. 

 

Your other option is to refile - you could technically refile as joint or divorce waiver, however its pointless to do joint because you will most likely have a final divorce decree before any joint petition is approved. So file as divorced. Your package will be accepted. You will get a NOA and be able to work and travel with it. When someone gets around to actually looking at your package they will see you didnt send the divorce decree and RFE you for it. I wouldnt expect that RFE for a few months from when you file. And then once you get the RFE it will give you the standard 87 days. You most likely will have your decree to send but if you dont you simply reply to the RFE saying you dont have it yet. They will then schedule you for an interview. You should definitely have it by then but if not you tell them you dont have it yet at the interview and it goes to court where you can then present it. 

 

[Narry4u 6]

Filing second time, What needs to be changed in I-751 package?

Can you just send the old one?