Lets say an alien thru marriage is asked to leave the country, because spouse has withdrawn all petitions. Alien goes B4 IJ, and IJ either remands the decision to leave or alien is given time to appeal decision. While alien is still in the country, since USC spouse was originally alien's sponsor, but I864 has been withdrawn along with all the other petitions, does alien need to find new sponsor?

SWISS I hope this covers all the scenarios spoke of and if Sammy will be so kind to give his expert opinion to answer these convoluted ques.



Swiss.. Clarify.. you mean to say alien is asked to leave country due to divorce/ and /or withdrawal of I751 petitions. Alien then applies on I751 waiver due to divorce. Alien is not sucessful in waiver attempt/ and denied by USCIS relating to nature of withdrawal petitions.(or for whatever reason waiver would be denied) no other factors involved..ie no re-marriage etc.

Alien then goes before IJ, which is their right for IJ's decision on the waiver. IJ approves petition. ok

1. Does Ij approve waiver conditional to alien getting new sponser because of withdrawn petitions?

2. Does Ij approve waiver and leave orignial sponser on the hook even though petitions were approved by UScis to be withdrawn due to fraud?

3. Can Ij approve waiver and deviate from Uscis policy and approve alien without a sponser?

Now the above scenarios are only pertaining to situations where the I751 has been allowed to be withdrawn by the USCis for reason of fraud/forced signatures in joint petition filing.

did I miss anything or did this cover

Alien thru marriage goes to IJ means alien is in deportation proceedings. IJ either ask alien to leave the country ( Voluntary departure) or forced him to leave on Gove ticket.( voluntary departure denied) where the I864 comes in between?
Aline can appeal the decision within 90 days. I don't think there are any relation to I864 here .
You need sponsor if you have petition filed, once petition is withdrawn, ther is no need to get second sponsor beacuse ther is no petition.
Other words I864 is a supporting document which is necessary for alien to prove his financial support. its a supporting document to petition. once petition is withdrawn, supporting doc has no meaning.

Mohan:
Thanks for your reply, but what I and 4now were asking is if the alien goes B4 IJ and the IJ remands decision to deport, but in the meantime, spouse for alien has now withdrawn all petitions, does that mean the I864 is now void?

If what I think you mean in your post...if alien does get a positive decision from IJ, meaning that alien need NOT leave, he must then find another co-petitioner...not the original spouse, but someone else or some other visa type, and if sponsor is needed, then new petitioner or some one else must file an I864.

Is that right?

correct. its a form of relief, alien must find some other way to adjust or change his status , and follow the guidelines of that perticular visa.
For example if someone married to LPR/USC filed petition and AOS and if petition is withdrawn, alien must find someone else to sponsor him and another I-864 will be filed on his behalf. I-864 will be the same guidelines , for example if he married and sopnsor income does not meet the poverty level, then his income can be added as I864a with sponser income( household memeber of the family) and so forth.

Mohan, that is not the action being questioned here. Those situations are a given. The specifics wer laid out clearly in the scenarios listed all only involving 751 waiver situation. and this has not been addressed.

origional thread doesnot say a thing about I751.
the answer is based on what was asked with limited information.

Thanks Mohan.. yes I agree with you. which is why I answered Swiss post and clarified what I know Swiss was really asking so that we are not back and forth here adding details and wasting time. I believe if you read my post after her thread, it represents what she is really asking. and if you have a take on this, then Im all ears.

if thats the case then answer is entirely different.
I,m still gussing . if she or anyone else want to know the correct answer in particular case, then give me the direct point when the remmoval condition was filed? when NTA was issued if any ?
Is the divorce is processed or still on the way.
One thing is sure " the time period tfor relief is 60 days to leave, allocated with the question in mind of divorce finallisation. read this cut paste"

April 10, 2003
MEMORANDUM FOR REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
DISTRICT DIRECTORS
FROM: William R. Yates /s/ Janis Sposato
Acting Associate Director, Operations
Bureau of Citizenship and Immigration Services
SUBJECT: Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage
Background
The Immigration Marriage Fraud Amendments of 1986 (IMFA), Pub. L. 99-639 (November 10, 1986), were enacted to combat fraud perpetrated by aliens who marry only to obtain immigration benefits. The IMFA amended the Immigration and Nationality Act (Act) by adding a new section 216, which imposes an initial 2-year period of conditional residency on a person who acquired permanent resident status based on a recent marriage. Section 216 also provides a comprehensive procedure by which a conditional resident may have these conditions removed following approval of a petition filed jointly with the citizen or lawful permanent resident spouse, or after approval of a waiver of the joint petitioning requirement (both filed on Form I-751, Petition to Remove Conditions on Residence). Section 216 further mandates termination of the conditional resident’s status if he or she fails to comply with the requirements for removal of the conditions at the end of the 2-year period. Finally, section 216 allows an alien whose status has been terminated to ask the immigration judge to review this decision during deportation proceedings.
In recent months, several questions have been raised regarding whether a conditional resident can file a waiver of the joint petitioning requirement on Form I-751 after commencement of divorce or annulment proceedings but prior to final termination of the marriage. This memorandum clarifies the Immigration and Naturalization Service’s (Service) position on this issue.

Memorandum for Regional Directors, et al. Page 2 Subject: Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage Filing a Form I-751 prior to final termination of the marriage
According to section 216(c)(4)(B) of the Act, a waiver of the joint filing requirement may be granted if the alien spouse can establish that “the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1)”. The statute clearly requires that the marriage already be terminated and, thus, the mere commencement of divorce proceedings is not sufficient. Further, in Matter of Anderson, 20 I&N Dec. 888 (BIA 1994), it was determined that an alien spouse:
[W]as ineligible to apply for a waiver under section 216(c)(4)(B) [of the Act] because she remained married to her husband . . . if the respondent had become statutorily eligible to apply for the section 216(c)(4)(B) waiver by virtue of changed circumstances, i.e., through the termination of her marriage . . . she could have sought a continuance from the immigration judge to pursue her alternative application with the Service.
In addition, the instructions to the Form I-751 clearly state that:
[Y]ou may apply for a waiver of th[e] joint filing requirement on this form if . . . you entered into the marriage in good faith, but the marriage was later terminated due to divorce or annulment . . . If you are filing to waive the joint filing requirement because your marriage has been terminated, also submit a copy of the divorce decree or other document terminating or annulling the marriage with your petition.
As such, an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the “good faith” exception. If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12).


it will be more clear in Genco published openion.
let me know if you need any more help.

Mohan.. ur not answering the question.. doesnt matter timeframe or NOa received.
It has been stated. alien has divorce decree ..otherwise wouldnt be able to file waiver. alien has been denied by USCIS and placed into removal.. otherwise wouldnt be in front of IJ for decision. 751 Petition wase previusly withdrawn by USC.. couldnt do that if USCIS hadnt allowed. which meant it had to be for fraud/forced signature. Question is.. what will Ij do about sponsership if IJ overides USCIS and approves alien's 751 waiver. Is it clear now. If you understand and have accurate info regarding this please do share. if you do not know, its ok.. no problem. interesting scenario though isnt it? now im off for a bite to eat . ill leave you to ponder. have a good nite

IJ will not approve the waiver Because Of marriage Fraud amendement sec 216. if Ij try to Go for approval Service has to agree and service will not agree. Its the Immigration Law.

IJ can only be approve the waiver if the Alien can prove that the marriage termination is not his fault OR battered spouse and in that case Alien don't need another I-864.

ok the 751 petition has been withdrawn by USC as USCIS has approved the withdrawal. Alien has filed waiver for bona fide marriage & for extra insurance has filed as mental abuse/ cruelty waiver.. both of which USCIS has rejected, citing that this is fraud... marriage for intent for GC.

Alien then goes in front of IJ with waivers defense being that fraud thing is misunderstanding & circumstantial it was bona fide marriage things are not as they look blah blah yada yada. IJ decides it the truth from alien and just appears to be bad timing of events. Grants residency to alien.

Now are you saying IJ can leave sponser on the hook b/c he approved waiver even though petitions were officially allowed to be withdrawn? and/or r u saying IJ has power to reinstate withdrawn sponser petition thereby overruling the Service?

Also are you saying that IJ cannot overrule the Service in ruling of fraud? if this is the case why would alien be allowed his day in court in front of the IJ. just for grins or what????

IJ have power to for both.petition was officially withdrawn by USC and approved by service. in that case waiver for alien to let him stay here because its not his fault, thats all.
once petition is withdrawn IJ cannot reinstate that but sometimes IJ reinstate the sponsor support till either sponsor gets other means.
No I,m not saying that IJ cannot overrule the service ruling. Many Times IJ overrules the INS ruling and many occassions INS Trial attorney appeal the IJ ruling too. its all depends of individual case and situation.

Dear Swissnut & 4now:

To the best of my understanding and recollection, the questions that you raised here, were already addressed/answered PARTIALY previously. However, I will repeat those parts of those answers over here again with the answers to other unanswered questions, since those have direct connection to each other for better understanding of these issues.

As I said previously- Any petition/application can be withdrawn by its petitioner at any time and without even giving any reason whatsoever, but it must be before its adjudication. After its adjudication, it could only be revoked, and not withdrawn. Revocation of an approved petition/application is very hard or I would say-almost impossible, unless INS finds proven mispresentations or untruthful statements made by either parties on those approved petition/application at first place in order to gain or to help in gaining immigration benefits.

Furthermore, INS doesn't approve nor deny petitioner's request for withdrawing any petition/application, instead it's petitioner's fundamental right to withdraw any petition/application at any time before its adjudication, and without giving any reason too, because petitioner is the one, who filed those petition/application and not the govt. So long petitioner withdraws it before its adjudication, INS or anyone can not do anything or has no authority to do anything whatsoever, like whether to approve or deny the request of its withdrawal, which is being made by petitioner.

Keep in mind, I-864 is not a petition or application, instead it is an affidavit for financial support. So, obviously it can not be withdrawn or revoked anyway. But, if a beneficiary [alien-spouse] files I-751 based upon any waiver provision instead of jointly filed I-751, OR if ever petitioner [USC-spouse] withdraws I-130 or Jointly filed 1-751 [before its adjudication], then I-864 is automatically considered voided right then, and there is no need to send any special request to void that up. Once alien-spouse would file I-751 under any waiver provision, or once I-130 or I-751 is withdrawn by USC-spouse, then USC-spouse would be out of the hook immediately for forever for any kind of obligations or liabilities that come with filing I-864. Nobody can ever reinstate those obligations/liabilities to USC-spouse. In another words- nobody can ever reinstate those petition/application once USC-spouse has already withdrawn those petion/application before its adjudication, not even Immigration judge. There is no such law that authorizes IJ to reinstate those withdrawn petition/application once those were already withdrawn by petitioner. That's the different things that IJ may approve residency to alien-spouse under another category of Immigration laws, but it could never be under the petition or application that was initially filed by USC-spouse. USC-spouse would NEVER be responsible for anything once a petition/application is already withdrawn.

As I said previously also that Immigration Judge doesn't approve and can not approve any waiver, application or petition. Instead, this is the job of INS, and not the job of IJ. IJ's job is-to decide only-Why an alien should not be deported from the United States. And if alien believes that s/he should not be deported, then s/he needs to prove his/her eligibility or claims for to be here to IJ. If IJ gets convinced, alien would get residency right on the spot. However, IJ may allow time to an alien to continue his/her deportation proceedings so that meantime alien can terminate his/her marriage union with USC-spouse to be eligible for filing I-751 under waiver provision. But, alien still needs to file waiver or any other benefits with INS and not with IJ.

Let me tell you how it works- If an alien won't leave the United States within the time alloted to him/her after the denial of any petition/application or revocation or termination of his/her status, or if ever INS finds somebody here illegally, then INS would have to detain such alien and then alien would be placed under removal proceedings in front of Immigration judge. And then alien needs to prove to IJ that why s/he should not be deported from the United States. So, the aliens just don't end up in front of IJ because of only marriage based cases, instead they end up there just because of only one reason alone- their illegal status in this country. Aliens cannot ask IJ to adjudicate their waiver, family-based or employment-based cases. Adjudication is the job of the INS. IJs don't allow or advise an alien to find another sponsor so that alien could stay in this country. Alien should have found another sponser before s/he is placed on removal proceedings. Any attempt to find another sponsor, I meant-marrying with another USC, is automatically be considered to prevent deportation, and then it would be whole different ball-game. Aliens get in front of judge because INS has found them illegal in this country one way or another, and not because they could not find another sponsor or can find another sponser if IJs allow them. IJs are just a higher authority over INS, and they are the part of INS too. Once IJ denies a case, then alien may file appeal to BIA and then forth on. So, it's not like that IJs need to give time to somebody to appeal their decisions, instead an alien has a right to appeal the decision if s/he believes that decision is made without the basis in facts and laws. Laws provide them the right to appeal automatically.

As far as any fruad is concerned for any immigration benefits, then INS would investigate the fruad, and if any party is found to be involved, then they will be prosecuted by INS and other law enforcement agencies. And if any charged-party believes that there is misunderstanding or there is only circumstancial evidence or anything like that, then they would have their opportunity in front of criminal courts and not in front of immigration courts. Once we are talking about fraud, then criminal courts would take over, instead of Immigration courts. So, proving otherwise to immigration judge won't do any good. Once the charges of frauds are dismissmed or if those charges won't get proven, then alien can argue those misunderstanding, circumstancial evidences or etc... to IJ after being on removal proceedings.

When we are talking about LAWS, I feel I need to share some information about LAWS that I was told while I was studying laws regardless of whether I agree with them or not, because I still wonder how many of these are true. So, here it is-

[1] In Bahrain, a male doctor may legally examine a woman's g-e-n-i-t-a-l-s, but is prohibited from looking directly at them during the examination. He may only see their reflection in a mirror.

[2] In Lebanon, men are legally allowed to have s-e-x with animals, but the animals must be female. Having s-e-x-u-a-l relations with a male animal is punishable by death. [Yeah right as if THAT makes sense]

[3] Muslims are banned from looking at the g-e-n-i-t-a-l-s of a corpse. This also applies to undertakers. The s-e-x organs of the deceased must be covered with a brick or piece of wood at all times. [A brick???]

[4] The penalty for m-a-s-t-u-r-b-a-t-i-o-n in Indonesia is decapitation. [Wonder which head?]

[5] There are men in Guam whose full-time job is to travel the countryside and deflower young virgins, who pay them for the privilege of having s-e-x for the first time... Reason: Under Guam law, it is expressly forbidden for virgins to marry. [Let's just think for a minute-Is there any job anywhere else in the world that even comes close to this?]

[6] In Hong Kong, a betrayed wife is legally allowed to kill her adultereous husband, but may only do so with her bare hands. The husband's lover, on the other hand, may be killed in any manner desired. [Ah! Justice!]

[7] Topless Salewomen are legal in Liverpool, England-but only in Tropical fish stores. [But of course!]

[8] In Cali, Colombia, a woman may only have s-e-x with her husband, and the first time this happens, her mother must be in the room to witness the act. [Makes one shudder at the thought]

[9] In Santa Cruz, Bolivia, it is illegal for a man to have s-e-x with a woman and her daughter at the same time. [I presume this was a big enough problem that they had to pass this law?]

[10] In Maryland, it is illegal to sell condoms from vending machines, with one exception: prophylactics may be dispensed from a vending machine only "in places where alcoholic beverages are sold for consumption on the premises." [Is this a great county or what?...But not as great as Guam!]

Mohan,, somehow or another I believe you will at somepoint have an aspiring career in politics.

I think “What we got here is a Failure to Communicate” I think I must have had a brain freeze & not comprehended what you meant
when you said :
“IJ will not approve the waiver Because Of marriage Fraud amendement sec 216. if Ij try to Go for approval Service has to agree and service will not agree. Its the Immigration Law.”

then you say:
“No, I,m not saying that IJ cannot overrule the service ruling. Many Times IJ overrules the INS ruling and many occassions INS Trial attorney appeal the IJ ruling too. its all depends of individual case and situation.”

do u see what im saying

In anyway none the less. your conclusion appears to be as follows:


IJ can temporarily reinstate sponsership from USC where 751 petition was allowed to be
withdrawn by the Service. And also where IJ has overruled the service on 751 denial and given the alien a conditional residency approval contingent to getting a new sponser.

is that correct?

isn't that the same I said in brief statement?
I know that Court don't have jurisdiction on Waivers Or visa petitions Byt IJ grant the approval of stay OR adjustment by looking the approvable waiver already filed. its as same as this example; approvable I-130 filed before the deportation hearing and not approved but IJ locate the I-130 if approvable then set next hearing date because I-130 is approvable, once Approved then IJ adjust the status.
its all dependency from one to another but Matter of jurisdiction over the application.

I have seen some cases of H1B converted to marriage where Waiver filed for marriage termination. judge ordered the temp support when appeal was waived and alien want to go back.
Another case a child was involved with alien mother.( not talking a different ball game of hardship, just I-751)

Wow, Sammy..I guess I was writing or sleeping when u posted.

Thank you Sammy for concise and detailed information. As I am aware of the procedures on unadjudicated petitons etc./waivers. I dont recall any discussion on who sponsership responsibility would lay on in a case where IJ overuled BCIS and granted residency to alien.

None the less you have expertly answered that question as ususual! Sponsership has been put to bed.

Further, You have certainly rested issues relative to 751 fraud and the IJ clarifying that they will be heard in criminal court system..

It is a shame you are not in the Law game anymore, It is such a loss to the profession.

But as I said in another post. Letterman is still looking for "top 10 writers" OMG 2 funny. my favorite is 9 lol

Thanks again for taking the time.

Swiss: #6 is for you.

4now:

thakns for clarifying...
BTW why am I only #6?