Missed I-751 Deadline NEED HELP!

[Chica Yeyé 41]

I myself would risk the $545. At the same time make a infopass appointment and see what they say.

I would go for the Infopass before forking 545. But that's just me

[rebeccajo 14]

USCIS does not have a n obligation to remind you of your obligation to file, so the fault is on you. Now, I have heard of people filing late; yet I am not sure what would be the case here, since yoiur husband status has been terminated. Has he been placed in removal procedures? what exactly does the letter say?

Actually, the Service does have an obligation to remind conditional residents of the date by which they must timely file. Both at the time the conditional status is granted and prior to the expiry of the conditional status. It's in the 1986 Immigration Marriage Fraud Act. But the statute spells out no penalty for failure to give the notice......

http://law.justia.com/us/cfr/title08/8-1.0.1.2.20.html

8 CFR 216.2

( a ) When alien acquires status of conditional permanent resident. At the time an alien acquires conditional permanent residence through admission to the United States with an immigrant visa or adjustment of status under section 245 of the Act, the Service shall notify the alien of the conditional basis of the alien's status, of the requirement that the alien apply for removal of the conditions within the ninety days immediately preceding the second anniversary of the alien's having been granted such status, and that failure to apply for removal of the conditions will result in automatic termination of the alien's lawful status in the United States.

" ( b ) When alien is required to apply for removal of the conditional basis of lawful permanent resident status. Approximately 90 days before the second anniversary of the date on which the alien obtained conditional permanent residence, the Service should notify the alien a second time of the requirement that the alien and the petitioning spouse or alien entrepreneur must file a petition to remove the conditional basis of the alien's lawful permanent residence. Such notification shall be mailed to the alien's last known address.

( c ) Effect of failure to provide notification. Failure of the Service to provide notification as required by either paragraph (a) or ( b ) of this section does not relieve the alien and the petitioning spouse, or alien entrepreneur of the requirement to file a petition to remove conditions within the 90 days immediately preceding the second anniversary of the date on which the alien obtained permanent residence."

And anecdotally - we were informed verbally by our AO at my husband's conditional residency interview to remember the date and signed a form that we had been so advised. We also received a written notification from the Service about 30 days before the expiry of his conditional card.

To the OP - I would suggest you hire competent counsel to represent you through this maze. I would also suggest that you ask that attorney to assist you in pursuing (through the malpractice insurance of the first attorney) his or her fee.

Edited November 17, 2009 by rebeccajo

[Dakine 26]

Additional info

http://www.uscis.gov/USCIS/New%20Structure...I-751100909.pdf

[Otto 83]

Additional info

http://www.uscis.gov/USCIS/New%20Structure...I-751100909.pdf

Well thats a 'king of the thread' memo.... (posted to the Gallery for future reference.)

[Patrick808 0]

I vote for filing your I-751 with the explanation that your lawyer failed you.

If you can document your lawyers advice to wait for a notice in the mail, I'd hope that would be considered out of your control.

We never recieved anything in the mail from the USCIS regarding filing the I-751 from conditional status to permanent. My husband's green card expired 5/23/09, and we received a letter from the USCIS yesterday terminating his status. I contacted our lawyer and they said that we cannot file a delinquent I-751 at this point, and that our only option is to refile for a permanent green card. This as you know is a lengthy and expensive process. Is there anything else that we can do?? Please help asap!

Thank you.

[rebeccajo 14]

Additional info

http://www.uscis.gov/USCIS/New%20Structure...I-751100909.pdf

Well thats a 'king of the thread' memo.... (posted to the Gallery for future reference.)

Hot off the USCIS presses too.

[Dakine 26]

I myself would risk the $545. At the same time make a infopass appointment and see what they say.

I would go for the Infopass before forking 545. But that's just me

Yeah I would also if you can get an appointment RIGHT away . If not I'd pay the dough and hope for the best.

$545 is nothing compared what they will pay for a lawyer and whatever down the line if they go into removal proceedings.

They "may" get a 1 year extension letter as others have done filing late. What happens after that is beyond me and most everyone else here on VJ.

[Kathryn41 3,205]

Actually, status is now terminated. It is beyond the grace period to file the I-751 and the OP really doesn't have a valid reason for missing the filing date - USCIS doesn't accept "we were expecting a form and didn't know we had to file now". Yes, the lawyer gave you poor advice. The good news is that the I-751 wasn't 'denied', so based on the information posted earlier in this thread, the OP can still re-apply for another green card as the spouse of a US citizen. It would be the same as someone who is filing for an AOS late and from out of status. There is no point to apply for the I-751 now - it would just be denied, and then - also according to information posted earlier in this thread the OP would not be eligible to file for AOS and would have to start the whole immigration process all over again from outside of the country.

Definitely do see a competent immigration lawyer but I believe that your best plan of attack is to bite the bullet and apply for the AOS all over again, also submitting an I-130 petition. Once the AOS is filed the OPs status becomes legal again while waiting for a decision. Apply for an EAD as well, but it is probably not useful to apply for an I-131 - just don't leave the US until you get a decision on the AOS. The good news about this is that if the AOS is accepted and approved it will be for a 10 year card - no need to remove conditions.

[Terca 6]

http://www.visajourney.com/gallery/albums/...Oct-2009%29.pdf

you may find this a good read. A memo about cases like yours and how they handle them

Edited November 17, 2009 by Terca

[SunDrop 59]

Definitely do see a competent immigration lawyer but I believe that your best plan of attack is to bite the bullet and apply for the AOS all over again, also submitting an I-130 petition. Once the AOS is filed the OPs status becomes legal again while waiting for a decision. Apply for an EAD as well, but it is probably not useful to apply for an I-131 - just don't leave the US until you get a decision on the AOS. The good news about this is that if the AOS is accepted and approved it will be for a 10 year card - no need to remove conditions.

This is an interesting approach. Just so I'm clear that I've understood clearly what the perspective is: The OP's spouse is now illegally present in the US, as his CGC expired and there was no ROC within the required timeframe. By applying for AOS, he is effectively benefitting from the visa overstay disregard that any IR would be entitled to. So effectively, he's in the same boat as someone who entered the US on the VWP, got married and then stayed in the country for 6 months beyond their I-94 expiration date before filing AOS? But because he's been married to the OP for more than 2 years, if his AOS is approved, he would automatically be granted a 10 yr GC and still be eligible to apply for citizenship after 3 years of marriage or would he then be best advised to wait longer to naturalise considering his 'illegal presence' for these 6 months approx?

[rebeccajo 14]

Definitely do see a competent immigration lawyer but I believe that your best plan of attack is to bite the bullet and apply for the AOS all over again, also submitting an I-130 petition. Once the AOS is filed the OPs status becomes legal again while waiting for a decision. Apply for an EAD as well, but it is probably not useful to apply for an I-131 - just don't leave the US until you get a decision on the AOS. The good news about this is that if the AOS is accepted and approved it will be for a 10 year card - no need to remove conditions.

This is an interesting approach. Just so I'm clear that I've understood clearly what the perspective is: The OP's spouse is now illegally present in the US, as his CGC expired and there was no ROC within the required timeframe. By applying for AOS, he is effectively benefitting from the visa overstay disregard that any IR would be entitled to. So effectively, he's in the same boat as someone who entered the US on the VWP, got married and then stayed in the country for 6 months beyond their I-94 expiration date before filing AOS? But because he's been married to the OP for more than 2 years, if his AOS is approved, he would automatically be granted a 10 yr GC and still be eligible to apply for citizenship after 3 years of marriage or would he then be best advised to wait longer to naturalise considering his 'illegal presence' for these 6 months approx?

I've poked around and I am pretty sure filing a brand new I485 isn't the answer. The OP isn't just 'out of status' - their status has been terminated by the Service and they are about to be scheduled for a hearing which (if it goes south) places them in removal proceedings.

[TracyTN 237]

I don't see how an I 751 filed now does any good. If the OP had not received a letter informing them that their status had been terminated, then I could see the logic in filing late, explaining why, and throwing yourself at their mercy.

The fact that no petition was filed and the status was just terminated tells me (even in reading that memo) that there is nothing for them to adjudicate as no petition was on record (when the status was terminated).

Regardless, us speculating does no good - the OP needs an immediate consultation with an experienced family immigration attorney. I am very curious to hear what that attorney suggests.

[caybee 21]

From the new USCIS memo dated October 9, 2009, referenced above:

4 Process Changes

B. I-751 petition filed by a CPR currently in removal proceedings

USCIS has original jurisdiction over all pending I-751 petitions. An IJ cannot review an I-751 petition pertaining to a CPR in proceedings unless USCIS has first adjudicated the petition on its merits. If a CPR is in proceedings and USCIS has not yet adjudicated an I-751 filed by that CPR, USCIS must first adjudicate that petition. An I-751 petition should not be held in abeyance or denied by a service center solely because the CPR is in pending removal proceedings. If the IJ has administratively closed the proceedings to await a decision by USCIS on the I-751 petition, the ISO will expedite adjudication and route the file through appropriate channels to the ICE Office of Chief Counsel having jurisdiction over the proceedings.

So if the OP is in removal proceedings, it looks like the I-751 can still be adjudicated (though they would still have to give an acceptable reason for filing so late).

The paragraph above the quoted one does state that once a final administrative order for removal has been issued by an IJ, an I-751 will be denied.

Edited November 17, 2009 by caybee

[TracyTN 237]

From the new USCIS memo dated October 9, 2009, referenced above:

4 Process Changes

B. I-751 petition filed by a CPR currently in removal proceedings

USCIS has original jurisdiction over all pending I-751 petitions. An IJ cannot review an I-751 petition pertaining to a CPR in proceedings unless USCIS has first adjudicated the petition on its merits. If a CPR is in proceedings and USCIS has not yet adjudicated an I-751 filed by that CPR, USCIS must first adjudicate that petition. An I-751 petition should not be held in abeyance or denied by a service center solely because the CPR is in pending removal proceedings. If the IJ has administratively closed the proceedings to await a decision by USCIS on the I-751 petition, the ISO will expedite adjudication and route the file through appropriate channels to the ICE Office of Chief Counsel having jurisdiction over the proceedings.

The OP's status has been terminated, but they are not yet in removal proceedings, and even if they were, it looks like the I-751 could still be adjudicated (though they would still have to give an acceptable reason for filing so late).

The paragraph above the quoted one does state that once a final administrative order for removal has been issued by an IJ, an I-751 will be denied.

I guess what made me question that was the reason they'd have to give. 'Our attorney told us wrong' is unlikely to be a reason that would fly. I don't suppose it could hurt, though, but I'd still be hard pressed to spend $545 on something I wasn't sure would work. Particularly if I'd still likely have to fork out more $ for an attorney. But maybe desperate times call for desperate measures. I don't suppose it could hurt them any to have a pending I 751, though, even with a weak 'reason' for the late filing.

[Gaby&Talbert 1]

Read through all the ROC threads and you will probably find where people have filed late and gotten approved.

I would file the I-751 ASAP and plead stupidity and anything else you can think of but just file it. If you can waist money on a lawyer then it is worth the $545 to file.