I-751 denied, reapplication and unlawful presence

[Alexmat1 9]

Hello,

I applied for I 751 as my marriage was terminated. The divorce took years so couldnt submit the divorce decree when USCIS did RFE for divorce decree. My I 751 was denied. Because of many reasons including financial and health issues I couldnt reapply I751. I waited for the NTA but that never came. I am just getting the papers ready to file I 751. 

Here are my queries:

 

1) I thought once I reapply, the I 751 receipt notice that extends the resident status for a year while USCIS processes will give me authorization to work in the US. However I read somewhere this is not the case. The notice mentions “This extension and authorization for employment and travel does not apply to you if your conditional resident status has been terminated.”

So in my case does it mean I CANNOT work or TRAVEL or get I-551 stamp while my second I 751 is pending for approval (which can take more than a year)

 

2) Unlawful presence - Since my first I 751 was terminated, I assume I am in unlawful status. Does my reapplication of I-751 cure that or its only cured when it is approved (which means I will be unlawful for more years) ? 

 

3) Can I use I -601 form for a waiver of unlawful presence ? I have a child in US who is US citizen.

 

4) Because of financial issues related to long divorce, I would be filing for Bankruptcy soon. Does this affect my re entry (when I travel anytime). Right now I am also recipient of Medi Cal and Food stamps.

 

Thanks in advance.

[geowrian 22,337]

1) With a valid I-551 stamp, you can still work and travel. Note that the extension letter only extends the validity period of the original green card...it does not extend it 18 months from the date of receipt of the letter. So if it's expired (I'm assuming it is by now), you need an I-551 stamp by contacting USCIS to setup an appointment.

 

2) Without getting too technical, you remain a conditional resident until an immigration judge rules otherwise.

It's a little more complicated than that, but the above is a simplified summary of where you're at. You are not accruing unlawful presence and are not in the US illegally at this time.

 

3) Not needed, since you are an LPR still.

 

4) Public charge is not an ROC issue. That's more of an issue for your I-864 sponsor(s), so long as you completed the applications honestly.

[Alexmat1 9]

1) So USCIS will let me get a I-551 stamp (even though my conditional green card has been denied by the previous denial of I 751) ? 

 

2) Thats great relief. So technically I am still LAWFUL and NOT accruing unlawful presence. Some sources mentioned that I start accruing unlawful status from the day my previous I - 751 was denied.

 

4) Thanks for the clarification of public charge. How about Bankruptcy Issue ? 

I forgot to ask another query in the original post:

 

5) I am in the US for more than 5 years. So can I file for citizenship (N-400) after I file I-751. Since N-400 has a faster processing time, would that also fasten up the I-751 processing if both might be decided together ? 

[Just Paul 4,595]

8 minutes ago, Alexmat1 said:

1) So USCIS will let me get a I-551 stamp (even though my conditional green card has been denied by the previous denial of I 751) ? 

You need to file a viable I-751 first to get a stamp

 

10 minutes ago, Alexmat1 said:

4) Thanks for the clarification of public charge. How about Bankruptcy Issue ? 

BK isn't an issue in ROC since the is no public charge issue.

 

9 minutes ago, Alexmat1 said:

5) I am in the US for more than 5 years. So can I file for citizenship (N-400) after I file I-751. Since N-400 has a faster processing time, would that also fasten up the I-751 processing if both might be decided together ? 

Yes - they can be adjudicated together.  But the I-751 has to technically be approved first.

[geowrian 22,337]

12 minutes ago, Alexmat1 said:

1) So USCIS will let me get a I-551 stamp (even though my conditional green card has been denied by the previous denial of I 751) ? 

 

2) Thats great relief. So technically I am still LAWFUL and NOT accruing unlawful presence. Some sources mentioned that I start accruing unlawful status from the day my previous I - 751 was denied.

 

4) Thanks for the clarification of public charge. How about Bankruptcy Issue ? 

I forgot to ask another query in the original post:

 

5) I am in the US for more than 5 years. So can I file for citizenship (N-400) after I file I-751. Since N-400 has a faster processing time, would that also fasten up the I-751 processing if both might be decided together ? 

1) Yes.  You are still entitled to evidence of LPR status until an IJ formally removes status. This is supported by BIA rulings.

Edit: After filing the I-751, of course

 

2) You'll be fine here. 👍

 

4) Also not a public charge issue. Bankruptcy and immigration are separate items for your circumstances.

 

5) If you qualify under the 5 year rule, sure you can apply. I'm not suggesting it would speed up the I-751 or not...experience from some other members who had a denied I-751 implies it does not. They would just sit on a final decision on the N-400 until the I-751 is adjudicated.

 

As a reminder, make sure you check that their is no NTA issued throughout the process. If one is issued, do NOT miss the court date. Show up. You do not want an IJ to rule in absentia.

Edited May 2, 2020 by geowrian