Question re NTA and re-filling a i-130&i-485

[Dashinka 24,488]

1 hour ago, BeenSoLong said:

Yes, the point is that I won’t be able to ROC via my previous marriage, I will not win that battle, if so chances will be slim.

 

by filing a new i130, once I get the receipt notice I can ask the judge to dismiss my cases (that’s what my attorney is attempting to do ) once I’m clean in the court system, I can just start this sponsorship all over again. 
 

i believe this will be the only way I will obtain a 10 years GC in the long run, as I already exhausted all ways via my previous marriage. 

Would you need to relinquish your first GC first via the I407 before your future spouse files for you?  Is it better to file a new clean I751 with a divorce waiver?

Edited June 17, 2022 by Dashinka

[BeenSoLong 7]

21 minutes ago, Dashinka said:

Would you need to relinquish your first GC first via the I407 before your future spouse files for you?  Is it better to file a new clean I751 with a divorce waiver?

Yes, I believe this is the route, file a i407 and so I can get a new sponsor from my new wife.

 

i already filed a joint and a waiver from my previous marriage, both were denied. I am not sure if I can file a new i751 after being married to my new spouse? If that’s possible this would be best so I don’t have to start this all over again. 

[Dashinka 24,488]

5 minutes ago, BeenSoLong said:

Yes, I believe this is the route, file a i407 and so I can get a new sponsor from my new wife.

 

i already filed a joint and a waiver from my previous marriage, both were denied. I am not sure if I can file a new i751 after being married to my new spouse? If that’s possible this would be best so I don’t have to start this all over again. 

So with the filing of the I407, this would make you ineligible to work legally until you get a new EAD I believe (question for your lawyer), but you may be able to get an expedited EAD.  I would hit up @mindthegap as even if not completely the same, their I751 was one for the books. 

[Demise 1,281]

2 hours ago, BeenSoLong said:

Yes, the point is that I won’t be able to ROC via my previous marriage, I will not win that battle, if so chances will be slim.

 

by filing a new i130, once I get the receipt notice I can ask the judge to dismiss my cases (that’s what my attorney is attempting to do ) once I’m clean in the court system, I can just start this sponsorship all over again. 
 

i believe this will be the only way I will obtain a 10 years GC in the long run, as I already exhausted all ways via my previous marriage. 

https://www.asianjournal.com/immigration/immigration-columnists/readjustment-of-status/

Give this a read. This outlines how re-adjusting while already an LPR looks like. So I was a bit off, you'd file I-130 with USCIS and then I-485 with the court. Only the court can approve a re-adjustment.

 

You would NOT need to file I-407.

Edited June 17, 2022 by Demise

[Rocio0010 5,579]

13 minutes ago, Dashinka said:

So with the filing of the I407, this would make you ineligible to work legally until you get a new EAD I believe (question for your lawyer), but you may be able to get an expedited EAD.  I would hit up @mindthegap as even if not completely the same, their I751 was one for the books. 

I also tagged him.  He's the guru of messy I-751s. In the meantime, OP, you could check his posts.

[mindthegap 2,590]

40 minutes ago, Rocio0010 said:

I also tagged him.  He's the guru of messy I-751s. In the meantime, OP, you could check his posts.

I like that nickname....  didn't see this last night, and I was actually at USCIS getting stamp number 12(?)). Hateful place and process and the process of getting a damn appointment - even on a short notice emergency basis - is currently more ridiculous than ever. 

 

 

 

Anyway, to the OP, you are in luck. Previously, you would have had to see out the NTA with a hearing with an immigration judge, wait for a final order of removal - at which point your permanent resident status would be formally terminated at which point you would cease to be a LPR - and only then could you file for a new I-130 on the basis of your new marriage. 

A recent (2019 - and covid years don't count as naff all else has been done since) clarification has changed this.

One can now file for a new marriage upon receipt of a denial, without having to wait for the NTA, the subsequent hearing and a final order of removal which formally terminates the permanent resident status. 

You do not have to file an I-407 to do this, just merely having a denial is sufficient. The NTA will co-exist while that is going on and will be dealt with at some point - even if you have to go to court, as soon as they see a new i-130/485/i-751 (obviously not in your case) is pending or approved it'll be stayed or chucked out. 

 

Section G here clarifies it:

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

 

Of course have little doubt they will give extra scrutiny because of the prior history, but it's the current policy, and a big and welcomed change.

 

Also see here:

https://www.uscis.gov/news/alerts/uscis-issues-guidance-on-adjustment-of-status-by-aliens-whose-conditional-permanent-residence-has
 

And Matter of Stockwell, which is what caused this clarification:

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20191121-CPRs-Stockwell.pdf

 

https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3150.pdf

 

 

 

 

Edited June 17, 2022 by mindthegap

[Rocio0010 5,579]

3 minutes ago, mindthegap said:

and I was actually at USCIS getting stamp number 12(?))

Oh, I thought you were drinking English tea and eating proper chocolate (not Hersheys!) that would have been way more exciting. Anyhow, how was the visit to the office?

 

5 minutes ago, mindthegap said:

Anyway, to the OP, you are in luck. Previously, you would have had to see out the NTA with a hearing with an immigration judge, wait for a final order of removal - at which point your permanent resident status would be formally terminated.. would cease to be a LPR - and only then could you file for a new I-130 on the basis of your new marriage. 

A recent (2019 - and covid years don't count as naff all else has been done since) clarification has changed this.

One can now file for a new marriage upon receipt of a denial, without having to wait for the NTA, the subsequent hearing and a final order of removal which formally terminates the permanent resident status. 

You do not have to file an I-407 to do this, just merely having a denial is sufficient. The NTA will co-exist while that is going on and will be dealt with at some point - even if you have to go to court, as soon as they see a new i-130/485/i-751 (obviously not in your case) is pending or approved it'll be stayed or chucked out. 

I knew you were the one to ask!

[mindthegap 2,590]

1 minute ago, Rocio0010 said:

Oh, I thought you were drinking English tea and eating proper chocolate (not Hersheys!) that would have been way more exciting. Anyhow, how was the visit to the office?

I actually was served by a knowledgeable, polite, efficient - and funny - USCIS officer. Stamp issued in three minutes. 

I'm in shock. I might buy a lottery ticket. 

 

...unfortunately the majority of rest of the staff and security were the usual standard. The less said about the appointment process the better. 

[Family 3,988]

2 hours ago, BeenSoLong said:

by filing a new i130, once I get the receipt notice I can ask the judge to dismiss my cases (that’s what my attorney is attempting to do ) once I’m clean in the court system, I can just start this sponsorship all over again. 

There no reason to delay either your marriage or filing the I-130. It is in your best interest to move this process as quickly as possible, as you already missed the window of opportunity to file the I-130/I-485 directly w USCIS and avoid the court. That window was open once I-751 was denied and before they lodged NTA w the court. 

https://www.uscis.gov/news/alerts/uscis-issues-guidance-on-adjustment-of-status-by-aliens-whose-conditional-permanent-residence-has

You can :

1. Marry asap so you can file I-130. ( you can still hold the October marriage ceremony/ celebration ) 

2. File I-130 with Request for Bonafide Marriage Exemption ( simple format statement that gets notarized) and include good evidence of relationship/ bonafides …after all these years and interviews, you know what they are looking for.

3. With the I-130 receipts in hand , reach out to OPLA / ICE and ask them to join in motion to terminate/ dismiss, since you qualify to readjust based on Matter of Stockwell .

4. Once you the I-130 receipt, you need to prepare I-485 and “ fee it in “ at the same time as the motion is filed. Everyone balks at the challenges of feeing in w court, but it can be done and some are  simply not familiar with it 

4. Doing this now / asap may expedite your I-130 processing/ decision and you could have an approved I-130 on hand by Jan 2023 at which point the Judge will most likely offer to dismiss proceedings and you go on your merry way to await I-485 w USCIS. 

I am sorry your attorney missed the window of simplify filing the new I-130/I-485 , since Matter of Stockwell has been in place since November, 2019, but maybe you were not ready to remarry/ readjust…

 

But now that you are, above steps will help avoid any more delays 

 

 

 

[BeenSoLong 7]

18 minutes ago, mindthegap said:

I like that nickname....  didn't see this last night, and I was actually at USCIS getting stamp number 12(?)). Hateful place and process and the process of getting a damn appointment - even on a short notice emergency basis - is currently more ridiculous than ever. 

 

 

 

Anyway, to the OP, you are in luck. Previously, you would have had to see out the NTA with a hearing with an immigration judge, wait for a final order of removal - at which point your permanent resident status would be formally terminated at which point you would cease to be a LPR - and only then could you file for a new I-130 on the basis of your new marriage. 

A recent (2019 - and covid years don't count as naff all else has been done since) clarification has changed this.

One can now file for a new marriage upon receipt of a denial, without having to wait for the NTA, the subsequent hearing and a final order of removal which formally terminates the permanent resident status. 

You do not have to file an I-407 to do this, just merely having a denial is sufficient. The NTA will co-exist while that is going on and will be dealt with at some point - even if you have to go to court, as soon as they see a new i-130/485/i-751 (obviously not in your case) is pending or approved it'll be stayed or chucked out. 

 

Section G here clarifies it:

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

 

Of course have little doubt they will give extra scrutiny because of the prior history, but it's the current policy, and a big and welcomed change.

 

Also see here:

https://www.uscis.gov/news/alerts/uscis-issues-guidance-on-adjustment-of-status-by-aliens-whose-conditional-permanent-residence-has
 

And Matter of Stockwell, which is what caused this clarification:

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20191121-CPRs-Stockwell.pdf

 

https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3150.pdf

 

 

 

 

I really appreciate your input, your knowledgeable comments was the only reason I decided to post my case here.

 

Can you somewhat guide me in simple English on how should I move forward with my case?

 

I am expecting to obtain my marriage certification with my new spouse next week, however we are planing to have our wedding this October.

 

 

 

[BeenSoLong 7]

13 minutes ago, Family said:

There no reason to delay either your marriage or filing the I-130. It is in your best interest to move this process as quickly as possible, as you already missed the window of opportunity to file the I-130/I-485 directly w USCIS and avoid the court. That window was open once I-751 was denied and before they lodged NTA w the court. 

https://www.uscis.gov/news/alerts/uscis-issues-guidance-on-adjustment-of-status-by-aliens-whose-conditional-permanent-residence-has

You can :

1. Marry asap so you can file I-130. ( you can still hold the October marriage ceremony/ celebration ) 

2. File I-130 with Request for Bonafide Marriage Exemption ( simple format statement that gets notarized) and include good evidence of relationship/ bonafides …after all these years and interviews, you know what they are looking for.

3. With the I-130 receipts in hand , reach out to OPLA / ICE and ask them to join in motion to terminate/ dismiss, since you qualify to readjust based on Matter of Stockwell .

4. Once you the I-130 receipt, you need to prepare I-485 and “ fee it in “ at the same time as the motion is filed. Everyone balks at the challenges of feeing in w court, but it can be done and some are  simply not familiar with it 

4. Doing this now / asap may expedite your I-130 processing/ decision and you could have an approved I-130 on hand by Jan 2023 at which point the Judge will most likely offer to dismiss proceedings and you go on your merry way to await I-485 w USCIS. 

I am sorry your attorney missed the window of simplify filing the new I-130/I-485 , since Matter of Stockwell has been in place since November, 2019, but maybe you were not ready to remarry/ readjust…

 

But now that you are, above steps will help avoid any more delays 

 

 

 

Thanks for your input, 

 

there was no way for me to avoid the NTA, I received this shortly after I went to the joint I-751 interview alone. I explained my situation in the hope for the officer just denie my case. At the same time I couldn’t submit a I-751 waiver since I didn’t have a finalized divorce decree. There was always few steps behind and lengthy wait for everything.

 

per my attorney, just by showing a i-130 receipt notice I will most likely get my nta dismissed.

[Family 3,988]

Additionally, you should affirmatively request for expedited processing  of your  I-130 petition based on the fact that you are in removal proceedings . Do this at the time you file it by writing a Request to Expedite and attach following memo.  https://www.ice.gov/doclib/foia/prosecutorial-discretion/handling-removal-proceedings.pdf
 

[African Zealot 1,455]

42 minutes ago, BeenSoLong said:

I am expecting to obtain my marriage certification with my new spouse next week, however we are planing to have our wedding this October.

Please clarify. Do you mean a court marriage next week and then a wedding in October? If that’s the case the wedding has no immigration implications.

[Family 3,988]

3 minutes ago, BeenSoLong said:

per my attorney, just by showing a i-130 receipt notice I will most likely get my nta dismissed

The NTA will be dismissed, but ICE or the court could re calendar just to await I-130 approval , brrr I don’t wish any more what if’s for you, no matter how small the chance…and you have a chance to get your I-130 approval expedited. 
 

Make sure your I-130 evidence includes the kitchen sink , including sworn / notarized affidavits from family/friends / neighbors and community ( church..)…and of course Bonafide Marriage Exemption Request. 
 

Feeing in the I-485 w the court ( at the same time as the motion to terminate/dismiss) is of course done with just the I-130 receipts..is a way to have all your ducks in a row preemptively and avoid yet another I-485 “ processing delay” .

 

If you cannot manage to get your attorney to fee in the I-485 ( w court), I would even do an I-485  ( plus I-765 and by now you should qualify for I-864 W ). …filing w USCIS the moment you get I-130 receipt, on the off chance that they accept the filing . At most they can reject it claiming jurisdiction is w EOIR but if it gets accepted you are still ahead of the wait. 
 

Definitely, get your PEBES Social Security Earnings Report and do I-864 W if you have 10 years of work credits so you can come in fully vested in the system.

 

 

[BeenSoLong 7]

12 minutes ago, African Zealot said:

Please clarify. Do you mean a court marriage next week and then a wedding in October? If that’s the case the wedding has no immigration implications.

Correct, just stating my wedding date, if I need to submit any documents along with my i130 form. Example wedding pictures I will not have them till oct