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#1 Angel

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Posted 12 August 2011 - 02:48 PM

Hello guys. I just want to ask help in behalf of our close family friend. He came here using K1 visa. 2006, his wife and him got married in Vegas. His wife is from California. After the wedding, he stayed here in Vegas because his wife is not ready to tell her kids that she got married. His wife went back in CA. They applied for adjustment of status using the CA address. It got approved. He had conditional green card and got a job. The problem arises when they had to apply for a 10 year green card. April 2011, his wife did not send his the letter of Request for evidence notice and yesterday my friend received from his wife the INS letter dated July 06, 2011. The letter stated:


Notice of Decision

On January 24, 2011, the conditional permanent resident (CPR) jointly filed Form 1-751, petition to remove conditions on residence. On April 11, 2011. USCIS issued a request for evidence providing the CPR 42 days in which to respond. That time period had elapsed and, as of this date, there is no record of a response to that request.
If a petitioner fails to respond to a USCIS request for evidence or notice of intent to deny within the allotted period, the petition is considered abandoned. 8.C.F.R. 103.2 (B) (13) (i) states:

………. If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the application or petition may be summarily denied as abandoned, denied based on the record, or denied for both reasons….
Therefore, it is ordered that the petition is denied due to abandonment, and the CPR’s conditional residence status is terminated concurrently. This decision may not be appealed. However, the CPR may file a motion to reopen in accordance with 8 C.F.R. 103.5. See form M-188. Furthermore, the CPR may request a review of this decision before an immigration Judge pursuant to 8 C.F.R. 216.4(d)(2). Please note that a Notice to Appear before an Immigration Judge will be issued and a copy forwarded to the CPR.
The CPR is hereby directed to immediately surrender his/her Alien Registration Card to a local U.S. Citizenship and Immigration Services Office.


Motion to Reopen based on an Abandonment Denial


A denial for abandonment cannot be appealed. However, the applicant or petitioner may file a motion to reopen in accordance with 8.C.F.R. 103.5(a)(2). The motion must be filed within thirty days of this decision and be submitted with the filing fee of $630.00. The motion must demonstrate that the USCIS decision was in error and must include evidence showing.:

(1) The requested evidence was not material to the issue of eligibility.

(2) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

(3) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised USCIS, in writing, of a change or address or change of representation subsequent to filing and before USCIS request was sent, and the request did not go to the new address.

The motion to reopen must address at least one of the three preceding issues. If the applicant or petitioner files a motion to reopen that does not show that the decision was in error because of at least one of the three preceding issues, the motion will be dismissed. Submission of the previously requested evidence at this time will not overcome the abandonment decision.
However, if the applicant or petitioner claims that he or she submitted the requested evidence to this office timely, he or she must submit evidence of mailing, such as a return receipt, and include an additional set of the previously requested evidence in addition to the motion.
The applicant or petitioner may instead file a new application or petition with fee. 8.C.F.R. 103.2 (B) (15) states that the priority or processing date of an abandoned application or petition may not be applied to a new application or petition.


Please help my friend, guys…Thank you very much!

Mikee

#2 rbacon

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Posted 12 August 2011 - 04:25 PM

Angel,

His only option is to request a "Reopen" and provide a plausible reason why he did not receive the "Request for Evidence," and also to provide the requested evidence.

Can you clarify the following:

1. Did his wife actually receive the "Request for Evidence?"
2. Is his wife living at a different address than him?
3. Do you have any idea what type of evidence was requested?

--Ray B

Hello guys. I just want to ask help in behalf of our close family friend. He came here using K1 visa. 2006, his wife and him got married in Vegas. His wife is from California. After the wedding, he stayed here in Vegas because his wife is not ready to tell her kids that she got married. His wife went back in CA. They applied for adjustment of status using the CA address. It got approved. He had conditional green card and got a job. The problem arises when they had to apply for a 10 year green card. April 2011, his wife did not send his the letter of Request for evidence notice and yesterday my friend received from his wife the INS letter dated July 06, 2011. The letter stated:


Notice of Decision

On January 24, 2011, the conditional permanent resident (CPR) jointly filed Form 1-751, petition to remove conditions on residence. On April 11, 2011. USCIS issued a request for evidence providing the CPR 42 days in which to respond. That time period had elapsed and, as of this date, there is no record of a response to that request.
If a petitioner fails to respond to a USCIS request for evidence or notice of intent to deny within the allotted period, the petition is considered abandoned. 8.C.F.R. 103.2 (B) (13) (i) states:

………. If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the application or petition may be summarily denied as abandoned, denied based on the record, or denied for both reasons….
Therefore, it is ordered that the petition is denied due to abandonment, and the CPR’s conditional residence status is terminated concurrently. This decision may not be appealed. However, the CPR may file a motion to reopen in accordance with 8 C.F.R. 103.5. See form M-188. Furthermore, the CPR may request a review of this decision before an immigration Judge pursuant to 8 C.F.R. 216.4(d)(2). Please note that a Notice to Appear before an Immigration Judge will be issued and a copy forwarded to the CPR.
The CPR is hereby directed to immediately surrender his/her Alien Registration Card to a local U.S. Citizenship and Immigration Services Office.


Motion to Reopen based on an Abandonment Denial


A denial for abandonment cannot be appealed. However, the applicant or petitioner may file a motion to reopen in accordance with 8.C.F.R. 103.5(a)(2). The motion must be filed within thirty days of this decision and be submitted with the filing fee of $630.00. The motion must demonstrate that the USCIS decision was in error and must include evidence showing.:

(1) The requested evidence was not material to the issue of eligibility.

(2) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or

(3) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised USCIS, in writing, of a change or address or change of representation subsequent to filing and before USCIS request was sent, and the request did not go to the new address.

The motion to reopen must address at least one of the three preceding issues. If the applicant or petitioner files a motion to reopen that does not show that the decision was in error because of at least one of the three preceding issues, the motion will be dismissed. Submission of the previously requested evidence at this time will not overcome the abandonment decision.
However, if the applicant or petitioner claims that he or she submitted the requested evidence to this office timely, he or she must submit evidence of mailing, such as a return receipt, and include an additional set of the previously requested evidence in addition to the motion.
The applicant or petitioner may instead file a new application or petition with fee. 8.C.F.R. 103.2 (B) (15) states that the priority or processing date of an abandoned application or petition may not be applied to a new application or petition.


Please help my friend, guys…Thank you very much!

Mikee



#3 Angel

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Posted 12 August 2011 - 05:02 PM

Thank you very much, Ray...


1. Did his wife actually receive the "Request for Evidence?"

Yes she did, April 2011 but she did not send it to him, he's here in Vegas, the wife is in CA. That letter of his green card termination was just sent 2 days ago by his wife but she received it a month ago. I think she does not want to pursue the petition because she waited for a month to send the letter of termination of his green and it says there that he only have 30 days to prove his case so I think it's already expired.

2. Is his wife living at a different address than him?

Yes, she is CA and he's in Vegas.

3. Do you have any idea what type of evidence was requested?

We don't know as the wife won't tell him...Does he needs a lawyer, Ray?

Thank you so much!

#4 rbacon

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Posted 12 August 2011 - 05:31 PM

Angel,

It's not a lawyer he needs, but a marriage counselor. If their marriage was already on the rocks, and he was living 800 miles away from his wife, he should have expected a problem with his I-751 procedure.

If he doesn't know what USCIS requested in their RFE, he can't very well respond with a "Reopen" procedure. The $600+ for the procedure would be wasted and the only thing an attorney can do, given the deficit of information and sour relations with his wife, is to take his money and hold his hand.

If your friend was somebody who asked me to assist him, I would tell him the same thing. He has swept himself into a corner and his has no viable option for appeal, reopen or resubmittal of the I-751.

On the other hand, if he can get his loving wife to give him the RFE documentation, along with an affdavit explaining that she never received the RFE correspondence, and she is prepared to go to any hearings with him, a "reopen" procedure might have a chance of success.

--Ray B



Thank you very much, Ray...


1. Did his wife actually receive the "Request for Evidence?"

Yes she did, April 2011 but she did not send it to him, he's here in Vegas, the wife is in CA. That letter of his green card termination was just sent 2 days ago by his wife but she received it a month ago. I think she does not want to pursue the petition because she waited for a month to send the letter of termination of his green and it says there that he only have 30 days to prove his case so I think it's already expired.

2. Is his wife living at a different address than him?

Yes, she is CA and he's in Vegas.

3. Do you have any idea what type of evidence was requested?

We don't know as the wife won't tell him...Does he needs a lawyer, Ray?

Thank you so much!



#5 Angel

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Posted 12 August 2011 - 05:39 PM

Thanks Ray. I would tell him that. If his wife will refused to cooperate. Is there anyway he can do self petition?

#6 rbacon

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Posted 12 August 2011 - 06:23 PM

Angel,

He can self-petition only if his wife has died within the last two years (and she was a U.S. citizen) or he has evidence of being "abused or battered."

By submitting the I-751, presumably with his wife's signature, he was taking a chance that it might have been approved without any problems during the processing. If his loving wife had given him the RFE correspondence in a timely manner, he might even have been able to provide the evidence requested and possibly had the 10-year card issued without an interview.

I'll extend the advice to him, through you, that I give to gals who complain that their husbands are not cooperating with an I-751 filing or Adjustment of Status filing:

MAKE THINGS RIGHT, FIX A NICE DINNER, FOLLOWED BY DESSERT, AND GET THIS TAKEN CARE OF.

Since it is probably too late for your friend to follow this advice (maybe he doesn't cook or know how to "make things right"), he can try to obtain his wife's cooperation for going with him to any immigration hearings (reopen, deportation, etc.) and providing support for his argument that the failure to respond to the RFE was because teh correspondence had not reached him.

--Ray B


Thanks Ray. I would tell him that. If his wife will refused to cooperate. Is there anyway he can do self petition?



#7 Angel

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Posted 12 August 2011 - 06:44 PM

Thank you very much for your help, Ray. God will bless you more, you are such a good person......
I will tell him about the things you said...

#8 MrkGrismer

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Posted 15 August 2011 - 01:50 PM

I am sorry to say this but this really sounds to me like a 'sham marriage.'

After the wedding, he stayed here in Vegas because his wife is not ready to tell her kids that she got married. His wife went back in CA. They applied for adjustment of status using the CA address. It got approved. He had conditional green card and got a job.


It doesn't sound to me like they were ever 'really married'.

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#9 rbacon

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Posted 15 August 2011 - 03:39 PM

Guys,

With the information provided thus far by Angel, there is little doubt about the legitimacy of the relationship.

Having said that, however, I try to avoid making direct accusations or judgments, as this will often break off communication with posters who need straight "unemotional" information and advice.

But since we're on the subject....there is obviously a real story somewhere behind the posts from Angel. There is a guy in Las Vegas who will shortly become TNT, and a wife in California who has made it plain that she is not prepared to assist him in retaining his marginally-legal immigrant status.

If the 'wife' didn't want to help him retain his Green Card status, it was her right (and even legal obligation) to cease supporting his I-751 procedure. The guy in Vegas, however, took a gamble and has lost, since he lacked the leverage and strength of relationship to get past the USCIS 2-year review.

--Ray B

I am sorry to say this but this really sounds to me like a 'sham marriage.'



It doesn't sound to me like they were ever 'really married'.



#10 Paul Orr

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Posted 15 August 2011 - 03:47 PM

I am sorry to say this but this really sounds to me like a 'sham marriage.'



It doesn't sound to me like they were ever 'really married'.


X2 Mark, and if that IS the truth then I really don't feel too sorry about the situation.
There are those of us who have sincerely sought to bring our spouses over here and have run into snags that are heartbreaking because two people are being kept apart. Those who use the system to illegally import another person or get imported themselves get no sympathy from me. Go home.

If that is NOT the truth then I wish him well in his efforts but I don't see this as a loving relationship from my computer chair.

Paul

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#11 MrkGrismer

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Posted 15 August 2011 - 06:52 PM

Guys,

With the information provided thus far by Angel, there is little doubt about the legitimacy of the relationship.

Having said that, however, I try to avoid making direct accusations or judgments, as this will often break off communication with posters who need straight "unemotional" information and advice.

But since we're on the subject....there is obviously a real story somewhere behind the posts from Angel. There is a guy in Las Vegas who will shortly become TNT, and a wife in California who has made it plain that she is not prepared to assist him in retaining his marginally-legal immigrant status.

If the 'wife' didn't want to help him retain his Green Card status, it was her right (and even legal obligation) to cease supporting his I-751 procedure. The guy in Vegas, however, took a gamble and has lost, since he lacked the leverage and strength of relationship to get past the USCIS 2-year review.


I usually try not to make any direct accusations or judgments either, but what I am saying here is that this has 'sham marriage' written all over it and I don't really see how he can overcome the 'assumption' of a 'sham marriage' inherent in the Immigration Marriage Fraud Amendments of 1986. Specifically, "evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S."

The fact that he filed for removal of conditions using an address that he does not live at, nor has ever lived at, is an indication (in my book, and likely that of USCIS) of what his intention was. It would take some pretty convincing evidence to sway the scales the other direction, IMO.

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#12 rbacon

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Posted 15 August 2011 - 07:14 PM

Mark,

We're pretty much in agreement on your points below.

But to play "Devil's Advocate," there are some very good reasons why a spouse might be working in another state than at his primary address.

Also, if the wife signed the jointly-filed I-751, she has now reversed her support for fixing his status, or she has had "pangs of conscience" and doesn't want to continue burying herself in fraudulent submittals to USCIS.



I usually try not to make any direct accusations or judgments either, but what I am saying here is that this has 'sham marriage' written all over it and I don't really see how he can overcome the 'assumption' of a 'sham marriage' inherent in the Immigration Marriage Fraud Amendments of 1986. Specifically, "evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S."

The fact that he filed for removal of conditions using an address that he does not live at, nor has ever lived at, is an indication (in my book, and likely that of USCIS) of what his intention was. It would take some pretty convincing evidence to sway the scales the other direction, IMO.



#13 MrkGrismer

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Posted 15 August 2011 - 07:25 PM

Mark,

We're pretty much in agreement on your points below.

But to play "Devil's Advocate," there are some very good reasons why a spouse might be working in another state than at his primary address.

Also, if the wife signed the jointly-filed I-751, she has now reversed her support for fixing his status, or she has had "pangs of conscience" and doesn't want to continue burying herself in fraudulent submittals to USCIS.


I'm usually the one playing "Devil's Advocate" but while there are many very good reasons, especially in today's economy, for a spouse to be working in another state I don't see a very good reason for that spouse to not file using that address if that is the case. He was not in charge of his removal of conditions but instead let his wife 'take care of it' and is now paying the price for that :(

Again, such would seem to indicate to me that he is attempting to hide the fact that he does not live with her, and never has.

USCIS is likely to have access to his work address, and I am sure that would have raised questions.

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Medical Exams – A caller explained that the civil surgeon who completed the medical exam used the wrong form and then wanted to charge an indigent refugee to reprocess the paperwork on the correct form. What recourse does an applicant have if this occurs?

USCIS Response: Customers should notify the Director of their local office when they have a complaint about a civil surgeon.


#14 James in Austin Tx

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Posted 15 August 2011 - 08:37 PM

Loving Wife - I had to crack up at that one ; )
She stands the remote chance of being looked at as committing fraud if someone wonders about this as I do lol


Angel,

It's not a lawyer he needs, but a marriage counselor. If their marriage was already on the rocks, and he was living 800 miles away from his wife, he should have expected a problem with his I-751 procedure.

If he doesn't know what USCIS requested in their RFE, he can't very well respond with a "Reopen" procedure. The $600+ for the procedure would be wasted and the only thing an attorney can do, given the deficit of information and sour relations with his wife, is to take his money and hold his hand.

If your friend was somebody who asked me to assist him, I would tell him the same thing. He has swept himself into a corner and his has no viable option for appeal, reopen or resubmittal of the I-751.

On the other hand, if he can get his loving wife to give him the RFE documentation, along with an affdavit explaining that she never received the RFE correspondence, and she is prepared to go to any hearings with him, a "reopen" procedure might have a chance of success.

--Ray B


Edited by James in Austin Tx, 15 August 2011 - 08:37 PM.


#15 rbacon

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Posted 15 August 2011 - 09:36 PM

James,

Do I detect some cynicism from your corner?

--Ray B

Loving Wife - I had to crack up at that one ; )
She stands the remote chance of being looked at as committing fraud if someone wonders about this as I do lol



#16 Angel

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Posted 16 August 2011 - 05:06 AM

I hope you guys are all good and well:)...Anyway, thank you for the inputs, I will surely relay it to my friend. Next week, he will hire a lawyer for his papers is so complicated. I do hope that everything will be all right for them both. They were high school sweethearts back home but separated for a long long time 'till they saw each other again 6 years ago. His single and she's divorced with 3 kids. She started filing his papers. He came here k1 visa but they have to live separately because of the kids. Now his wife does not want to help him with the complications of his papers...Anyway, Thanks a lot guys...

#17 Fritz

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Posted 16 August 2011 - 06:27 AM

I hope you guys are all good and well:)...Anyway, thank you for the inputs, I will surely relay it to my friend. Next week, he will hire a lawyer for his papers is so complicated. I do hope that everything will be all right for them both. They were high school sweethearts back home but separated for a long long time 'till they saw each other again 6 years ago. His single and she's divorced with 3 kids. She started filing his papers. He came here k1 visa but they have to live separately because of the kids. Now his wife does not want to help him with the complications of his papers...Anyway, Thanks a lot guys...

Hostile stepchildren have smashed many a marriage. It may well be that in the beginning there was no sham. Then she had to choose who to abandon ... children or new husband. Husband lost :(

Her decision to leave her husband and return to the children who wanted no part of him was a bad sign. Her apparent attempt to get him deported is likely the non-confrontational means to inform him that she values her relationship with the kids more than her marriage and that he should leave quietly.

The adventure continues
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know it when you see it and
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... and keep it!!!

#18 Paul Orr

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Posted 16 August 2011 - 06:51 AM

I don't see any "loving" indications in these posts. She didn't want to even tell the children she married and wouldn't let him move to CA with her? Now....years down the road it looks the same. Do they even see each other regularly? I doubt it. If he lived in PI and her in the USA then how were they High School sweethearts? None of this makes any sense. I call shenanigans.

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#19 zzzlpr

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Posted 16 August 2011 - 12:53 PM

I don't see any "loving" indications in these posts. She didn't want to even tell the children she married and wouldn't let him move to CA with her? Now....years down the road it looks the same. Do they even see each other regularly? I doubt it. If he lived in PI and her in the USA then how were they High School sweethearts? None of this makes any sense. I call shenanigans.


My calculated guess is that she is a pinay that became a USC.
Then bumped on him while visiting Phils and the old flame came about until the kids got involved and it died.
She either didn't have the guts to tell him that it is over or he is not telling Angel the whole story.

Peace,

Carlos.
"A man does not know how alive he can be until a sweet Pinay steals his heart."
my point of view


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#20 rbacon

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Posted 16 August 2011 - 02:36 PM

Angel,

The only use an attorney can be at this point is to show up with your friend at any immigration-related hearings, but the outcome will probably be the same.

There is nothing particularly "complicated" about his situation. He has not kept USCIS informed of his physical location. His petitioner has reneged on keeping him informed of his immigration requirements (RFE). He has a flat out denial of his 10-year card.

The only hope he has of remaining in the U.S. (legally) is to "reopen" the case with a claim that the RFE never reached his address of record, which we now know to be false.

--Ray B

I hope you guys are all good and well:)...Anyway, thank you for the inputs, I will surely relay it to my friend. Next week, he will hire a lawyer for his papers is so complicated. I do hope that everything will be all right for them both. They were high school sweethearts back home but separated for a long long time 'till they saw each other again 6 years ago. His single and she's divorced with 3 kids. She started filing his papers. He came here k1 visa but they have to live separately because of the kids. Now his wife does not want to help him with the complications of his papers...Anyway, Thanks a lot guys...






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