USCIS messed up my life and they don't admit their mistake. What is my option?

[SpanishBoyNYC 2]

50 minutes ago, geowrian said:

USCIS makes this claim. However, until an IJ makes a ruling, they are still entitled to evidence of LPR status (the ADIT stamp). This has been determined in court rulings.

 

This timeline has me a bit confused. So 6 months after you moved you got the denial letter, but the denial letter said the interview was over a year ago? Then the move wasn't a factor.

Or did I miss something?

 

1) No. You are still entitled to the benefits of an LPR.

Technically, your status is in question depending on who you ask. But you are not working illegally.

At the same time, you wouldn't qualify for an I-9 for a new job until you get an ADIT stamp (unless you already have an unrestricted Social Security card + a driver's license or state ID).

 

2) This is addressed in you other thread. Summary: You can leave (and return) once you file the I-751 and get an ADIT stamp.

There is no guarantee of re-entry, but others have done this fine.

 

3) See #2

 

4) See #2 + your other thread.

 

Tagging @mindthegap as they have been going through the same type of second-filing issue, and has traveled internationally since then fine.

They are not as active on the site recently, or so I'm told, but if they are still around and have the time to provide info, it's worth trying.

thank you very much for answer. i will appriciate if you can help with the follow up questions.

 

my gc expired almost 2 years ago so extension letter won't help.

 

1 - do you think i should just refile i751 without fighting with ucsis more?

2 - i know nobody can really be 100percent sure but is the risk of not being allowed back to us high? i mean, if i refile i751 and get the stamp, is the risk more than10%? how can i lower the risk?

3 - i had a stamp on passport before uscis denied and terminated my status, is my stamp still good? is ADIT stamp same or a different one?

[SpanishBoyNYC 2]

1 hour ago, geowrian said:

1) What is the timeline here?

If your original card expired 18+ months ago, then the extension letter will be useless. Send the I-751, wait for them to acknowledge receipt of it, then call USCIS and request an appointment to get an ADIT stamp. That will act as a green card for 1 year.

If under 18 months, the extension letter will extend your original green card's validity by 18 months. So if you will travel and return before that 18 months passes, you're fine with the card + letter. Otherwise you need an ADIT stamp still.

 

2) Nothing guarantees entry for a non-citizen (and extremely limited other circumstances).

But if an LPR was abroad, so long as they can get to POE, they should be able to look them up and admit them. The issue is often getting to POE...airlines typically will not provide passage without a valid travel document.

And one would need to be sure that their I-751 was properly.

 

3) That would be the path of least risk, which is likely why they have suggested it. There is always a risk of not being re-admitted as a non-citizen. It is much harder to have somebody removed than it is to deny them entry.

In practice, people in your situation (having to refile an I-751) have successfully travelled abroad and returned without issue with a valid ADIT stamp. It typically involves going through secondary inspection, but not really have issues.

 

Main thing is to refile the I-751 first. Then get an ADIT stamp, if needed, first.

my gc expired almost 2 years ago so extension letter won't help.

 

i know nobody can say this for sure but after sending new i751 and getting the stamp, is the risk more than 10%? how can i lower the risk?

i had a stamp before uscis denied and terminated my status. is that stamp still good or do i need a new one?

 

thanks a lot for answering

[Pinkrlion 2,724]

3 hours ago, SpanishBoyNYC said:

thank you for the respond. please answer my follow up questions:

1 - are you saying that if i contact the link you shared, i can explain the situation to somebody and get it fixed? i'm confused because somebody said my only option is to refile i751 again. resubmitting is expensive and i already spent money for appeal which was denied.

2 - i can understand that if i travel today i might have problem with coming back. but my question is: after i refile i751 and while that i751 is in progress, can i not travel? am i stuck in the us?

My experience with ombudsman, is that they take a while after you complete the paperwork.  If you are willing to take the risk and not refile, that is up to you.  

[retheem 568]

Dude, do not leave the US until you have sorted your things and you have your green card, whatever you have to do. Sad that your parents are sick. But you've got to understand the immigration law does not account for your feelings or your personal circumstances. Don't get things twisted. The other choice you have is to leave and not be able to come back unless you get a new person to petition for you. Better tell you this before you do a costly mistake

[Elllena 116]

So you and your wife were married for 6 years, yet you got a conditional GC? You get a conditional green card if the marriage is under 2 years, so you and your wife were married less than 2 years when you got your first green card. It's now 4 years later and you still don't have a permanent GC? Did you file the I-751 years after your  conditional GC was already expired? Am I missing something here because your timeline makes no sense to me. 

[SpanishBoyNYC 2]

thank you for answers. if i stay in us until i751 gets approved, do i have a problem with legal working?

does uscis inform the employer about this or should i stop working?

 

again i'm asking because if i cannot travel, then did i also lose my work right?

[SpanishBoyNYC 2]

20 minutes ago, ElenaAnthony said:

So you and your wife were married for 6 years, yet you got a conditional GC? You get a conditional green card if the marriage is under 2 years, so you and your wife were married less than 2 years when you got your first green card. It's now 4 years later and you still don't have a permanent GC? Did you file the I-751 years after your  conditional GC was already expired? Am I missing something here because your timeline makes no sense to me. 

i applied everything on time. my first green card application and i751 both took almost 2 years for no reason. i had to contact them to move it forward. 

and all of this denial stuff happened 6 months ago but uscis updated me just now. 

[Elllena 116]

Did you use lawyers for your initial GC application as well? For how long were you married when you recived your conditional GC?

[mindthegap 2,590]

9 hours ago, geowrian said:

Tagging @mindthegap as they have been going through the same type of second-filing issue, and has traveled internationally since then fine.

They are not as active on the site recently, or so I'm told, but if they are still around and have the time to provide info, it's worth trying.

 

🙏

Thanks, still here.

As possibly the only other person on this board going through this, I am in a position to offer accurate advice based on real life experience...unlike the largely incorrect  answers based on speculation, not fact, elsewhere on the thread.

 

11 hours ago, SpanishBoyNYC said:

1 - denial letter says they terminated my status. Have I been working illegally? 

2 - My lawyer says i cannot leave US until i751 gets approved. is it true? My parents are in Spain and they are sick with coronavirus. I have to visit them but i don't know if i will be allowed to enter us if i leave.

3 - How can I travel internationally and come back in this case? my lawyer says he won't recommend traveling for 18 months. i got the stamp on passport almost 1 year ago before they terminated my status. is it also terminated? i'm so confused why lawyer says i shouldn't travel yet i read that stamp is a proof for green card. i don't know if i am out of status now.

4 - is there a form or document that will guarantee my return like advance parol? 

 

I will appreciate it if anyone can help thank you again.

 

1 - no

2 - Your lawyer is incorrect. Remember that not all lawyers are created equal.

The denial letter sent out by USCIS is legally incorrect. The ONLY person who has the authority to terminate someones LPR status is an immigration judge. USCIS cannot, the director cannot, and some pro-forma letter cannot.

It is a scary letter no doubt about it, but it has no legal basis. All USCIS can do is refer you to immigration court for removal proceedings, at the conclusion of which an immigration judge can formally terminate your status (at which point you cease to be a LPR). 

As a LPR you have the absolute RIGHT to a hearing with an immigration judge.

You can also file multiple I-751s at any time prior to a final determination of removal (at which point you are no longer a LPR). Filing a waiver I-751 outside of the 90 day period required for joint filings is explicitly permitted and is even stated in the instructions:

 

3 - file a brand new I-751. Get the receipt/extension letter, go to get a stamp, and you can leave and re-enter.

The old stamp is not to be used - the new one will be hand annotated with the new refile receipt number, and also 'TC-1' indicating it is a refile/reopen.

You are not out of status and remain a LPR (genco opinion 96-12 - pasted inits entirety below) and you remain a LPR with all the rights and responsibilities of that.

You will have to have a brief visit to secondary every time you come back in the country, while they quickly verify your status (has never taken more than a couple of minutes for me)

4 - the stamp.

 

Some reading for you:

https://www.dhs.gov/sites/default/files/publications/cisomb-conditional-residence-recommendation-final-02282013_1.pdf

and below (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."

 

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

 

 

11 hours ago, Allaboutwaiting said:

As the I-751 was denied, your lawful status was terminated, so you won't be able to reenter the country if you decide to travel. 

Nope

 

11 hours ago, Pinkrlion said:

Once your 2 year green card expired and you were denied I-751, you are now out of status. 

Nope

 

11 hours ago, Pinkrlion said:

If you leave the country, you will need to start the immigration process all over again

Nope

 

11 hours ago, Pinkrlion said:

The stamp in your passport is based on your previous green card

Correct - the new one will be annotated with the new receipt number.

 

11 hours ago, SpanishBoyNYC said:

i am asking, after i submit a new i751(which i have a right to do and i'm working on it), can i travel after they accept new i751?

Once you have the receipt and go and get a stamp, yes.

 

11 hours ago, SpanishBoyNYC said:

am i out of status until uscis approves second i751? 

No.

 

11 hours ago, Allaboutwaiting said:

 No, you cannot travel until the I-751 is approved.

Incorrect.

 

10 hours ago, Allaboutwaiting said:

You are no longer a legal permanent resident, so you cannot get a stamp. 

Incorrect on both counts.

 

9 hours ago, Allaboutwaiting said:

Do they stamp the passport having the denial in the system with no new I-751 being filed? 

Yes.

Genco opinon 6-12

 

8 hours ago, SpanishBoyNYC said:

1 - do you think i should just refile i751 without fighting with ucsis more?

 

Yes. The I-290B you filed was largely pointless, as that is asking to reopen based on procedural errors or incorrect application of the law by USCIS, neither of which they did. 

In their opinion it is not their fault or the laws fault you did not receive the notice - I also had a 'missed' interview where they didn't send a notice, but they will claim it isn't their fault as it was sent (even if it was not).

 

 

8 hours ago, SpanishBoyNYC said:

2 - i know nobody can really be 100percent sure but is the risk of not being allowed back to us high? i mean, if i refile i751 and get the stamp, is the risk more than10%? how can i lower the risk?

You remain a LPR.

You will be stamped in as normal as LPR or ARC. 

 

8 hours ago, SpanishBoyNYC said:

 

3 - i had a stamp on passport before uscis denied and terminated my status, is my stamp still good? is ADIT stamp same or a different one?

You need a new one - it will have the new receipt number written on it, plus 'TC-1' annotation (indicating it is a denial/refile case).

 

2 hours ago, retheem said:

Dude, do not leave the US until you have sorted your things and you have your green card, whatever you have to do.

The other choice you have is to leave and not be able to come back unless you get a new person to petition for you. Better tell you this before you do a costly mistake

Great sentiment, but incorrect. 

 

51 minutes ago, SpanishBoyNYC said:

thank you for answers. if i stay in us until i751 gets approved, do i have a problem with legal working?

No.

 

51 minutes ago, SpanishBoyNYC said:

does uscis inform the employer about this or should i stop working

 

No & no.

 

51 minutes ago, SpanishBoyNYC said:

again i'm asking because if i cannot travel, then did i also lose my work right?

 

No

 

Edited June 25, 2020 by mindthegap

[geowrian 22,337]

9 hours ago, SpanishBoyNYC said:

thank you very much for answer. i will appriciate if you can help with the follow up questions.

 

my gc expired almost 2 years ago so extension letter won't help.

 

1 - do you think i should just refile i751 without fighting with ucsis more?

2 - i know nobody can really be 100percent sure but is the risk of not being allowed back to us high? i mean, if i refile i751 and get the stamp, is the risk more than10%? how can i lower the risk?

3 - i had a stamp on passport before uscis denied and terminated my status, is my stamp still good? is ADIT stamp same or a different one?

So yes, a new stamp will be needed (after re-filing the I-751).

 

1) Refiling is the best path IMHO.

2) Once you refile and get the stamp, you entry into the US would be the same as any other green card holder. So unless you are comitting crimes abroad, trying to smuggle stuff into the US, etc., I would not expect an issue upon return...just having to go through secondary inspection.

3) Get the new stamp.

 

Beyond that, heed mindthegap's advice above.

Edited June 25, 2020 by geowrian

[Allaboutwaiting 2,503]

1 hour ago, mindthegap said:

Yes. The I-290B you filed was largely pointless, as that is asking to reopen based on procedural errors or incorrect application of the law by USCIS, neither of which they did. 

In their opinion it is not their fault or the laws fault you did not receive the notice - I also had a 'missed' interview where they didn't send a notice, but they will claim it isn't their fault as it was sent (even 

If the motion to reopen was useless, then asking for the Ombudsman's Office assistance would be futile to? 

 

And regarding the I-551, at the stage the OP is at -with no NTA issued nor a new I-751 filed-, he wouldn't get a stamp, would he?

[Dashinka 24,654]

2 hours ago, SpanishBoyNYC said:

i applied everything on time. my first green card application and i751 both took almost 2 years for no reason. i had to contact them to move it forward. 

and all of this denial stuff happened 6 months ago but uscis updated me just now. 

To bad your initial GC did not take more than two years from your date of marriage.  You could have avoided all the ROC mess.

 

As others have said, I would file a new I751.  The only thing that is not clear to me is when you file a second I751, and you get a new extension letter (presumably good for 18 months), I don’t think you would also need a new stamp.

 

Good Luck!

 

Btw, you may also want to consider filing the N400 when your window opens up, by your timeline, you should be getting close to the 5 year rule filing date.

 

 

[geowrian 22,337]

3 minutes ago, Dashinka said:

 The only thing that is not clear to me is when you file a second I751, and you get a new extension letter (presumably good for 18 months), I don’t think you would also need a new stamp.

It's 18 months from the end of the original green card, not from the date filed or issued. So it would be useless, hence why the stamp is needed.

[millefleur 5,047]

**Similar threads merged. Please do not start multiple threads with similar or related questions**

 

VJ Moderation

[mindthegap 2,590]

1 hour ago, Allaboutwaiting said:

If the motion to reopen was useless, then asking for the Ombudsman's Office assistance would be futile to? 

 YMMV, but the Ombudsman has been entirely useless for me on the three occasions I have contacted them.

Strictly speaking USCIS hasn't done anything wrong - an interview was scheduled, as far as they are concerned the OP did a no show, a denial letter was issued, so procedure was followed correctly. Regardless of the fact that USCIS often 'sends' notifications and letters that weren't actually sent, you can't prove a negative in that it was never received, and arguing with them is largely futile. Not to say that such circumstances have been overturned, but it is an uphill battle.

However, filing with the ombudsman is free, albeit slow - at minimum a 90 day wait -  so nothing to lose contacting them. You could indeed file with the ombudsman, an I-290B motion to reopen AND a new I-751 all concurrently.

 

I also had an interview notice that was never mailed -  the phantom appointment letter and the sheet for it was in my FOIA response, and  marked as a no-show:

 

Thankfully by sheer fluke I had an infopass scheduled within that (unknown to me at the time) 30 day hold period, and when I was told I had missed an interview I was able to tell them in no uncertain terms that I hadn't received it, another was scheduled and with no adverse consequences for that.

 

 

The OP states that have proof/receipt of address change, so a FOIA request may show where the 'missed' interview letter was sent - this may give a good case for reversal if pursued.

 It won't be the first time USCIS address changes have not taken, and it won't be the last. Actually, I file my now monthly 'out of processing time' thing for mine, and last month it very randomly got sent to one of my old addresses that I have USPS forwarding set up for....so address strangeness can and does happen.

 

1 hour ago, Allaboutwaiting said:

And regarding the I-551, at the stage the OP is at -with no NTA issued nor a new I-751 filed-, he wouldn't get a stamp, would he?

 

The OP will be refiling....but even if they weren't, a stamp is not conditional or dependent on refiling. It is expressly permitted as proof of status, as quoted/bolded above:

 

"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. "

 

and

 

"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."

 

 

 

1 hour ago, Dashinka said:

As others have said, I would file a new I751.  The only thing that is not clear to me is when you file a second I751, and you get a new extension letter (presumably good for 18 months), I don’t think you would also need a new stamp.

The receipt serves as an 18 month extension from the date of expiry on a 2 year card. For a  now long expired card, this is now useless and cannot extend it, as the letter is useless by itself....so for proof of status/travel etc a stamp must be obtained. 

There is actually no requirement in law to obtain a stamp -  remember that the stamp is proof of status and is not the status itself - but it is somewhat prudent to do so, especially in the current climate.

Edited June 25, 2020 by mindthegap