EJ3

Greetings BE,


It has been a long time since I've posted and I am seeking advice for a family member.


My apologies if the following text is missing key details; I'll try and describe the situation to the best of my knowledge at this time.


USC husband and his foreign wife successfully applied for a K1 visa, they married and both now reside in the US where she is in possession of a two year green card.
In September 2015 they filed the appropriate paperwork to remove conditions and a month later her fingerprints and photograph were taken.


At the end of August this year they received a notice which said the application was being denied because they failed to respond to a request for evidence which was sent in April this year. The letter states that '...the CPR may file a motion to reopen. Please note that a Notice to Appear before an Immigration Judge will be issued and a copy forwarded to the CPR.'
At this time the USC called USCIS and explained that they did not receive the request for evidence. The officer told them he would review their case and wait for the Notice To Appear to arrive.


In late October they received the Notice to Appear which states that the foreign spouse is now in removal proceedings and summoned her to appear before an immigration judge (a date and time is yet to be set).


A week after receiving the notice they had an initial consultation with a local immigration attorney who said they would need to file a motion to reopen.


In the opinion of those on BE, do you believe this is the correct action to take? After looking at their notices I believe that they should have filed a motion to reopen in August after they received the initial Notice of Decision.
Is it too late to file one now that she is already in removal proceedings?


The couple do understand that they didn't respond to the request for evidence, they are not trying to dispute this but they want to ensure they proceed correctly.


Additionally, the Notice of Decision sent in August reads 'The conditional resident is hereby directed to immediately mail their Permanent Resident Card to USCIS at the address listed at the top of this notice'.
She has not mailed her green card. Should she still follow this instruction?


Thank you as always for any information or advice you can provide.

Pulaski

In practice there is a LOT of latitude granted for the spouse of a USC when it comes to obtaining a visa to live in the US (except where the foreign spouse has a serious criminal record or a drug habit), so I believe the situation is far from lost.

The correct line of attack should be whatever their attorney has recommended, which probably is the filing of a motion to reopen.

Noorah101

I agree with Pulaski. In the end, I'm sure it will all be corrected and the conditional PR will be granted a 10-year green card.

They should follow the advice of their attorney.

Rene

ian-mstm

These two statements completely contradict each other. Did they get the notice or not? Which scenario is true?

Ian

Pulaski

With respect, they are not contradictory - the notice was not received, and therefore they did not respond to it.

ian-mstm

Perhaps... but it's curious that he wrote they are "not trying to dispute this"... as though there was conscious thought behind not responding.

Ian

EJ3

In my post I was trying to highlight two points. Firstly, the request for evidence was not received. Secondly, the applicants are past the point of exploring why it was not received. They have accepted the fact that they didn't receive, and consequently failed to respond to the request.

ian-mstm

My understanding is that she remains a PR having correctly filed the I-751 to remove conditions on her status. That is the sole requirement to maintain her status.

While filing an MTR is likely a good step at this point in time, if their current immigration attorney does not have experience dealing specifically with removal proceedings, they should find someone else. This is not rookie territory.

Ian

EJ3

Ian, Rene and Pulaski- thank you very much for your prompt responses.


Should the above question be directed to their immigration lawyer also?

Noorah101

Yes, they should ask their attorney any questions they might have.

Rene

Pulaski

Noorah is correct, but I wouldn't do anything without guidance from a lawyer, including not mailing back the green card, which could be construed as giving up the card/fight voluntarily.

ian-mstm

I agree with the others... but, regardless, she should not return her green card without specific instructions from her attorney - and even then, only under protest. Also, in case they haven't yet thought of it, she must not leave the US under any circumstances whatsoever. The moment she leaves the US, her options for maintaining her status drop to virtually zero!

Ian

EJ3

Thank you for that valuable information, Ian.