K Visa K1~ Married in 60 days~ Filed AOS in +/-18 mos~ Left/Returned the US~ Now: NOID+NOD

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WeGotIssues

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Below is our dilemma. Please advise if you know of a solution:

1. My girlfriend (Russian) visited US via Work & Travel program in 2005, 2006.

2. We met here in the US during her 2006 summer trip.

3. My girlfriend departed the US in 9/2006 before expiration of her visa .

4. I visited Russia 4 times until she received K1 visa in 10/2007.

5. Now my fiancée, she returned to the US in 10/2007 with K1.

6. We married in 12/2007. (less than 60 days)

7. Note: I-94 expiration date written as Jan 26, 2008.

8. We could not find any instructions or regulations as to what the deadline is to file for an Adjustment of Status subsequent to entry with a K1 visa and fulfilling the required marriage within 90 days... or what the relevancy was of the seemingly arbitrary date on the I-94.

The USCIS website, documentation and even their telephone representatives as it turns out were not only ambiguous but completely wrong regarding the entire situation.

I personally called them to inquire as to a filing deadline and was told on 4 separate occasions that there IS NO DEADLINE, and that we can file for AOS whenever we wanted without penalty, "even ten years later." Moreover, I was told that the official status of such a person remains as "K1 status" until an AOS application is filed, and that there is no risk of being perceived as ever being out-of-status.

9. We had no immediate need for my wife to receive the Advance Parole or Work Authorization for the foreseeable future, so, based on the facts and assurances provided by USCIS, we decided to file for her AOS at a later time.

10. In 9/2009, my wife had become eager to visit her family in Russia because her grandmother is very old and has serious medical problems, plus she needed to have her newly replaced Russian passport altered in Russia. We also wanted to travel to Central America, so we finally filed the AOS.

11. On a side note, I wrote a letter to USCIS accompanying the AOS application (which included the I-485, I-131, I-765, G325A, I-693) notifying the USCIS that we intended to travel outside the US as soon as my wife's Advance Parole document arrived, and we would appreciate if they could attempt to avoid any unnecessary delays in processing that form.

12. In preparation for our travel plans, and to make absolutely certain that there would be no surprises or potential allegations of my wife being "Out of Status" or unlawfully present, we scheduled a face-to-face appointment with a USCIS representative at the Callowhill Street facility in Philadelphia on the same day that her biometrics were collected.

13. We informed the agent at Callowhill Street that:
  1. My wife entered the US in 10/2007 with a K1 visa.
  2. We married within the required 90 days.
  3. We did not file an AOS until 9/2009.
14. Once again, as we had previously done on the phone, we specifically asked the agent:
  1. What is the deadline for filing the AOS after a K1 visa holder enters the US and marries as required?
  2. What is the official status of such a person after the marriage takes place? (Since the USCIS states this is the point at which the K1 is no longer a "non-immigrant")
  3. Is there any risk of being perceived by the USCIS as being "out of status" or "unlawfully present" by not filing the AOS by a specific date or deadline?
  4. Given the circumstances, is it safe for my wife to travel with the Advance Parole document?
15. The responses we were given by the USCIS agent were:
  1. There is no deadline.
  2. K1
  3. No
  4. Doesn't see any problems with it.
16. We booked our flights to Costa Rica in November. Due to various circumstances, it was determined that the Migración officials in CR would be unlikely to allow her out of the airport without an actual US Green Card, so we aborted that trip entirely.

17. We booked our flights to Russia for a 30-day trip between Dec 2009-Jan 2010, and proceeded with our travel. This is the moment after which all of our troubles began.

18. Two weeks after returning from Russia, my wife's appointment for the Green Card interview came up at Callowhill Street in early 2/2010.

19. At that interview, the agent wrongfully accused my wife of having been unlawfully present in excess of one year and advised that she would be subject to the 10-year bar from admission because she had departed the US and re-entered. I did not have an opportunity to choke him, which I now regret.

20. A short time later, we received the NOID. It references "Section 245(a) of the Act" as well as "Section 212(a)(9)(B) of the Immigration and Nationality Act," and claims that she was only authorized to remain in the US until the expiration of her I-94.

It also stated that we may be eligible to file a waiver (Form I-601) as per Section 212(a)(9)(v) of the Act. More importantly, it instructed, "If you do not feel that the aforementioned charges apply, you should not file a waiver application. Instead, you may provide a response to this office outlining the reasons you are not inadmissible under Section 212(a)(9)(B)."

21. Very dismayed at how this all played out, we went to Washington and met with our congressman and explained the situation to him. He understood the problem, and could see how the absence of clear statutes, regulations or guidelines caused us to fall into a legal landmine. He wrote a letter to the USCIS requesting fair consideration in light of the situation.

22. While in the congressman's office, we all discussed our available options that were explained to them by their regional USCIS liaison/director, specifically:
  1. File a waiver in response to the NOID first, or
  2. File a written response to the NOID first, then if this gets denied we would still have the opportunity to file a waiver. Also, with both of these options there would remain a final option to re-open, re-consider or appeal the case if it was ultimately denied.
23. I wrote an 8-page response letter to the USCIS outlining all of what you just read above, in addition to identifying various statutory and other published evidence to support the facts that: (1) Based on the wording of the NOID, we had essentially been consistently misinformed by the USCIS representatives, the USCIS website, immigration officials at the port of entry and consular officials in the American Embassy, and by all of the available forms, instructions and guidelines published by the USCIS, and of course, (2) that my wife had never been out of status according to the law. My response letter was filed in a timely manner.

24. On May 12, 2010, we received the Notice of Denial from the same Director of the Philadelphia Field Office whose name was signed on the NOID, Evangelia Klapakis. (oddly, an immigrant from Greece) In the NOD she quoted the same two statutes she wrote in the NOID and again failed to offer any statutory evidence to support her opinions. Her NOD letter is particularly disturbing and rather unprofessional for a number of reasons:
  1. She blamed me for the whole situation by deliberately mis-quoting statements from my response letter to her NOID and taking them completely out of context.
  2. She accused me of blaming the USCIS, the CFR and the Act for failing to provide answers to my questions.
  3. More than once she labels me as being confused regarding the K1 non-immigrant status and process.
  4. She tries to insinuate in her NOD that we lost our only ability to apply for a waiver by stating, "You were granted 33 days to make a request for a waiver...you failed to apply for a waiver to overcome your inadmissibility."
  5. She included these unsubstantiated opinions: "the following is accurate and reflected in the legal sources of the Act, and Title 8 CFR: your legal status as a K1 alien fiancé expires after the 90 days, married or not; the only way to protect your legal status is to apply for Adjustment of Status; and the only way to maintain continuous lawful status is to file an Application to Register Permanent Residence or Adjustment of Status within the 90 day period." (Nothing in either code corroborates these opinions)
  6. As a seemingly intentional act of retaliation, (or discrimination) she omitted a proper conclusion to her letter which must inform the applicant of his or her appeal rights and whether the decision is without prejudice to other benefits the applicant is seeking-- as required by the USCIS Adjudicator's Field Manual, Chapter 10.7 titled, "Preparing Denial Orders," Section (b)(5).
  7. She failed to include a copy of Form M-188, "Appeals and Motions," as required by the USCIS Adjudicator's Field Manual, Chapter 10.7 titled, "Preparing Denial Orders," also found in Section (b)(5).
  8. She failed to include a copy of the appropriate forms EOIR-29 (Appeals to the Board of Immigration Appeals), and I-292B (Appeals to the Office of Administrative Appeals). This is also required by the same section of the Adjudicator's Field Manual.
  9. She failed to even sign the Notice of Denial as required by Section (c) of the Adjudicator's Field Manual, which states, "The original signed copy is delivered to the petitioner, applicant or attorney of record."
  10. The letter was sent Certified, despite there being no requirement for doing so.


So, in light of all this chaos and in the absence of ANY reliable information from the USCIS or within the Notice of Denial, I need some help understanding what our true options are (before all my hair turns white and my wife becomes an urgent candidate for anti-depressants.)
  1. Can we still file a waiver after receiving a NOD?
  2. Would a waiver (or any other response) need to be filed within 30 days from the date of the decision, or, from the date of Certified mail service?
  3. Is there any point to filing a Motion to Reopen, Motion to Reconsider, or an Appeal? Must any of these accompany a waiver if a Notice of Denial has been issued?
  4. Is there really any statutes anywhere in the universe regarding the status of a K1 who marries within the 90 days, or a deadline to file for an AOS?
  5. If a waiver is truly no longer an option, does it make more sense to start all over with a new AOS application accompanied by a waiver?
  6. Would it be better to go before an Immigration Judge to deal with this? (though I know nothing about how to do this)


Any help or thoughts you might have about this would be greatly appreciated.... (Thank you)
 
so did your problem get resolved?

Hi,
I am not sure if you are still looking for advise about this issue.
I am from Russia too, married to US citizen.
I wanted to share that I just got out of the same situation. What a nightmare! I feel for you and your wife. We did not know either that we had to file AOS right away and because it was so expensive to pay for all the forms we decided to wait and do it later. We ended up paying more money. We had to hire an attorney to sort out all this mess but it was totally worth it. No local attorney wanted to take our case at first. Later we found out that it was because of my husband's ex wife (she was an immigrant from Greece too) who visited all of the local attorneys for a FREE first consultation a few years back and they refused to take our case because of conflict of interest. But it is another story. We ended up going to NYC and were recommended a very good attorney. He is not cheap but we are so glad that we hired him. He helped us to get out of all this immigration mess. He takes all kinds of cases even the most complicated ones. He helped us to file a waiver and it was successful. We had to prove extreme hardship but it was no problem since we have a common child born here, in US.
Actually he got them to issue me a permanent green card instead of a conditional one that they give you for 2 years. So now I can apply for citizenship in 3 years instead of waiting 5! I would highly recommend him if you have not resolved your problem yet, and I am guessing no because immigration is a long and painful process.
His name is John Nicelli. his office is in NYC.
Good luck and post later how it worked out for you.
Svetlana
 
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