To OP:

Listen to all the contradicting advises on this board and then follow them all through, simultaneously.
Do not consult an immigration attorney if you have any legal questions!
Nor should you rely on your own judgement when deciding how to live your own life!

Good luck,
Sabuntium

The OP Met The Family.

Overly friendly???? Overly Respectful???? Bend Over Backwards For The OP????

quote:

Originally posted by davdah:
You saw the letter? Present at adjudication? I didn't think so. We can't guess at what was written or for that matter what else there is. A ranting letter claiming fraud would be ignored unless there was something compelling with it.

His second letter was probably ignored due to what ever it was he sent with the first as proof of the purported fraud. Even that is a bit of an assumption. The view should not be limited to GC fraud. It could very well be procedural errors disclosed in the first letter rendering her visa or some other element invalid. Or, maybe she has a criminal background that was hidden. Or, maybe she is already married to someone in her home country. Too many possibilities until the contents of the letter are known.

Davdah,
This is what the OP said, "She was put in the immigration/removal procedures because the angry X wrote a nasty letter that made her look bad and accusing her of marrying him to come to the country. The ex later went back and sent in a letter explaining the situation logically and he explained his faults in the marriage and that they were in fact married and that he wrote the letter out of rage. However, the damage was already done at that point in time."

Post was made today at 3:51am CST. It is the second post of the OP in the thread and second paragraph. I never said I saw the letter. But why would someone who is a fraudster with graduate degree in biochemistry, she could easily go through the H or O visa route to stay in this country. what probably happened is she had bad luck in the marriage, came on a K1 visa, the USC had two sides, and she could not handle the stress of the marriage and culture shock. End up in divorce iwth his nasty letter sent first and then a second more reasonable letter sent second. Believe it or not, this type of stuff happens on a fairly regular basis even if immigration is not part of the equation. And then you said she probably had another husband. Davdah, she already got her conditional green card and had to submit evidence that either she was not married to anyone or just to her first husband. You are really blowing smoke and farce as usual.

It is quite normal for government agencies to ignore certain facts. this is especially true with immigration and tax. So even that is a more likely scenario than what you said.

I read the post too. It said nothing specific concerning content of either letter. USCIS would ignore a letter written in rage. You know that as well as I do. There was more, a lot more.

The OP isn't saying what it was since it would probably incriminate his fiancee. Point is this. In a I-751 self petition all she needs to prove is she entered the marriage in good faith. Thats it. Not a high evidence bar. To have a case denied and to say it was based on a letter written in rage. Sorry, I don't buy it. If that were true then most conditional card holders would end up sent back if they divorced within the time period.

What I meant concerning other possibilites is there are any number of things that could have caused it. Blatent fraud isn't the only one.

By the way,why was your fiancee's waiver to remove conditions denied ? Cause if it was denied because of a lack of evidence,then there is nothing much to worry about,if she intends to re marry and remove conditions under the second marriage. It does not mean that because the waiver was denied,is that it is because of suspected fraud..If USCIS denied her the benefit that she was seeking because of suspected fraud,then the burden is on them to prove that fraud was indeed committed,which is a difficult process to prove...

quote:

In regards to the refusal of the form, I can tell you that it cited lack of shared accounts and lack of children and a very short period of being married as the cause. They did not have children. They were married for a total of 10 months and only 4 after getting the green card. She got divorced because it was not love and he didn't treat her well and like a wife. They did live together, they did share insurance. They did not share bank accounts because he was a bad husband and said that they could have joint bank accounts whenever she actually made as much money as him. The fact that he was a bad husband does not mean that she did not get married in good faith

Hello

Welcome to ILW.

First and foremost.. try to disregard most of what has been written here in regards to your situation. According to you, there was not a mention of fraud in the denial letter from uscis in regards to the waiver. Your fiance was denied based on lack of joint financial evidence and for short length of marriage. This denial is fairly standard for this type of short marriage. This is what the conditional period is all about. 751 waiver is not easy to get approved for short marriage like this and little evidence proving otherwise. Of course it doesnt help that a marriage fraud letter was written and then recanted, but the case was not denied on fraud according to what you wrote. Uscis will not deny case for fraud unless they have proof , and they do not want to go to court on something that has the burdon of proof placed on uscis. (Poster above is correct in his post) This is why the service used uscis standards to deny petition. Immi Judge has the power to review and concur with the service or to overrule decision.

Your two lawyer consultations laid it out correctly 4u. Both are 100% correct.

This case is not that complicated at all.

Of course marrying her and filing a petition for relative will help her,(i-130)and it will probably keep her from having to leave the country under voluntary departure. You are already engaged, get married now. Have your big celebration later when you had planned it, or have it now.

Her status has been terminated effective from the date of the denial. She will go into removal proceedings(eventually). ... The court case may not even come up for up to 3 yrs from now. make sure you keep her address current with uscis so that a date is not missed.

file your paperwork so that if the time comes, there will be an approved i-130 for the IJ to see. long story short.. she will adjust status and it should not be any problem (based on the story you told here).

Just make sure that your marriage with her has outstanding good evidences to document marriage. (u know what they are looking 4now) Also be prepared for hardcore interviews and seperation interviews to make sure that your marriage is real, based on allegations from the first marriage. Just little irritating factors that will go away eventually and you will be set.

congratulations and have a great life together.

OK 4now, How do you deal with part 3, question 9 on Form I-485? do you answer yes or no? keep in mind, he stated his fiancee was placed into removal proceedings.

I agree it is not a complicated; situation however, the previous marriage will still have to be explained either with the I-485 or with the denial of the I-751. And in her permanent file, that nasty letter of the ex will still be there. Thus, there is substantial risk of the I-485 to be denied based on what the ex said. Burden of proof is much lower in civil proceedings than criminal proceedings. It really is a catch 22 situation for him.

quote:

Originally posted by Hudson:
OK 4now, How do you deal with part 3, question 9 on Form I-485? do you answer yes or no? keep in mind, he stated his fiancee was placed into removal proceedings.

I agree it is not a complicated; situation however, the previous marriage will still have to be explained either with the I-485 or with the denial of the I-751. And in her permanent file, that nasty letter of the ex will still be there. Thus, there is substantial risk of the I-485 to be denied based on what the ex said. Burden of proof is much lower in civil proceedings than criminal proceedings. It really is a catch 22 situation for him.

she would answer yes because she was previously placed in removal proceedings.
the alien was placed into removal proceedings when she was being divorced and the conditions were not removed. Her husband could not withdraw the case becuase the petitions were already approved. This is why she was temporarily in proceedings until the divorce became final to be able to apply for the 751 waiver. no biggie.


the I -485 will not be denied solely on what the usc wrote . there must be bonafide evidence to support the allegations in order for uscis to proceed using fraud. Remember that the usc recanted the first letter, and that the denial was based on uscis standards of lack of evidence and length of marriage. It has little to nothing to do with fraud. This is standard type of denial on short term marriages of this type with little to no evidences.

the only slam dunks are 2nd marriages as back up plan.

Keep in mind guys that he said the denial and removal proceedings had something to do with the X's letter.

"She was put in the immigration/removal procedures because the angry X wrote a nasty letter that made her look bad and accusing her of marrying him to come to the country. "


There had to be more than 'I think she used me for a GC' for it to have any impact. At the moment there are too many unanswered questions to make an educated guess concerning the next step. He should get those questions answered first and foremost for his own peace of mind.

quote:

Originally posted by davdah:
Keep in mind guys that he said the denial and removal proceedings had something to do with the X's letter.

"She was put in the immigration/removal procedures because the angry X wrote a nasty letter that made her look bad and accusing her of marrying him to come to the country. "


There had to be more than 'I think she used me for a GC' for it to have any impact. At the moment there are too many unanswered questions to make an educated guess concerning the next step. He should get those questions answered first and foremost for his own peace of mind.

The Most important Part Always Left Out!!!

quote:

Originally posted by 4now:
she would answer yes because she was previously placed in removal proceedings.
the alien was placed into removal proceedings when she was being divorced and the conditions were not removed. Her husband could not withdraw the case becuase the petitions were already approved. This is why she was temporarily in proceedings until the divorce became final to be able to apply for the 751 waiver. no biggie.


the I -485 will not be denied solely on what the usc wrote . there must be bonafide evidence to support the allegations in order for uscis to proceed using fraud. Remember that the usc recanted the first letter, and that the denial was based on uscis standards of lack of evidence and length of marriage. It has little to nothing to do with fraud. This is standard type of denial on short term marriages of this type with little to no evidences.

the only slam dunks are 2nd marriages as back up plan.

As I said, as well as you, this is not a complicated case. However, checking yes on question nine and hiping it will go away is neither wise nor prudent. With the reationary policy of USCIS and with the husband's ex letter, the first one (as stated in the OP's second post), it will have to be explained.

Yes, in a perfect world, USCIS would make a rationale decision; however, USCIS, in the past five years, have not done exactly what you have prescribed. If there is a doubt in the immigration adjudication's officer's mind, then there is a good chance the adjustment of status would be denied. Being married to a USC would have the I-130 approved.

Also keep in mind, the lawyer did provide some warnings on the initial consultation (again, based on the OP's post). We are not talking about a visa overstay or a name misspelled on a prior USCIS form, but the suspicion by USCIS the lack of a bona fide marriage. And if one marriage was not bona fide, in USCIS mind, so may be the second. This is why he has two choices, but the prior marriage having to be explained. Personally, I do think USCIS messed up on the I-751 denial and not looking at all the facts, just the first letter by the ex.

quote:

Originally posted by Hudson:

quote:

Originally posted by 4now:
she would answer yes because she was previously placed in removal proceedings.
the alien was placed into removal proceedings when she was being divorced and the conditions were not removed. Her husband could not withdraw the case becuase the petitions were already approved. This is why she was temporarily in proceedings until the divorce became final to be able to apply for the 751 waiver. no biggie.


the I -485 will not be denied solely on what the usc wrote . there must be bonafide evidence to support the allegations in order for uscis to proceed using fraud. Remember that the usc recanted the first letter, and that the denial was based on uscis standards of lack of evidence and length of marriage. It has little to nothing to do with fraud. This is standard type of denial on short term marriages of this type with little to no evidences.

the only slam dunks are 2nd marriages as back up plan.

As I said, as well as you, this is not a complicated case. However, checking yes on question nine and hiping it will go away is neither wise nor prudent. With the reationary policy of USCIS and with the husband's ex letter, the first one (as stated in the OP's second post), it will have to be explained.

Yes, in a perfect world, USCIS would make a rationale decision; however, USCIS, in the past five years, have not done exactly what you have prescribed. If there is a doubt in the immigration adjudication's officer's mind, then there is a good chance the adjustment of status would be denied. Being married to a USC would have the I-130 approved.

Sorry, that rational fails here. remember that uscis approved the conditional green card with the evidences presented from the first marriage. It was already bonafide for conditional gc purposes. What it was not bonafide for , was for the 10 yrs card. (Little to no evidences because she left 4 months after the interview/gc) BIG MISTAKE. She has to try again with this marriage... and if this one does not work out... she will have to try again.

USCIS has continued to do in the last 5 years what has been done for the last 10 to 15 years. (Approve 2nd marriages that meet criteria of bonafide marriage so long as 1st marriage was not a sham marriage.) Nothing has changed in that regard. The only thing that has changed t in the last 8 years is that uscis have started actually adhering to the policies when it comes to adjudicating 751 waivers and follow procedures about divorce being final before the waiver can be filed. All Gratis of 9/11.

Also keep in mind, the lawyer did provide some warnings on the initial consultation (again, based on the OP's post). We are not talking about a visa overstay or a name misspelled on a prior USCIS form, but the suspicion by USCIS the lack of a bona fide marriage. And if one marriage was not bona fide, in USCIS mind, so may be the second. This is why he has two choices, but the prior marriage having to be explained. Personally, I do think USCIS messed up on the I-751 denial and not looking at all the facts, just the first letter by the ex.

Like I told you.. Uscis standardly will deny short term marriage with little evidence. They did not mess up on the denial. the conditional green card is for the benefit of the USC, not the alien. A divorce was filed and finalized. the marriage lasted barely a year. There is not any reason for the alien to be here as there is no more relationship to the USC. [GREEN CARDS ARE NOT FOR THE BENEFIT OF THE ALIENS just so you know] Had the marriage lasted the two years, then it would most likely have been a different story.

You keep talking about suspicion etc letter, blah blah. The big noose around her neck was the length of marriage #1, and the lack of evidence. Even without the letter from the ex, she was a typical candidate for a denial.



Alien will be fine in remarry scenario. Happens all day long and night .. The only problem that I can see will be if alien came to usa as a K-1. If that is the case, then she will have to return to home country and follow normal procedures for a planned marriage.

Alien should not have any problems with a waiver situation. She is currently in status right up until her denial letter . If she came on k-1, then she should return home before accumulating illegal presence if she is not going to appeal. Otherwise, stay, get married , get approved and live happy ever after.

Next.

We are definitely agoing to appeal. We have a date with the judge schedule mid august to schedule a trial. In the meanwhile we are going to get a second opinion from the best lawyer we can find to be error on the safe side.

quote:

Originally posted by 4now:
Sorry, that rational fails here. remember that uscis approved the conditional green card with the evidences presented from the first marriage. It was already bonafide for conditional gc purposes. What it was not bonafide for , was for the 10 yrs card. (Little to no evidences because she left 4 months after the interview/gc) BIG MISTAKE. She has to try again with this marriage... and if this one does not work out... she will have to try again

]USCIS has continued to do in the last 5 years what has been done for the last 10 to 15 years. (Approve 2nd marriages that meet criteria of bonafide marriage so long as 1st marriage was not a sham marriage.) Nothing has changed in that regard. The only thing that has changed t in the last 8 years is that uscis have started actually adhering to the policies when it comes to adjudicating 751 waivers and follow procedures about divorce being final before the waiver can be filed. All Gratis of 9/11.

Like I told you.. Uscis standardly will deny short term marriage with little evidence. They did not mess up on the denial. the conditional green card is for the benefit of the USC, not the alien. A divorce was filed and finalized. the marriage lasted barely a year. There is not any reason for the alien to be here as there is no more relationship to the USC. [GREEN CARDS ARE NOT FOR THE BENEFIT OF THE ALIENS just so you know] Had the marriage lasted the two years, then it would most likely have been a different story.

You keep talking about suspicion etc letter, blah blah. The big noose around her neck was the length of marriage #1, and the lack of evidence. Even without the letter from the ex, she was a typical candidate for a denial.



Alien will be fine in remarry scenario. Happens all day long and night .. The only problem that I can see will be if alien came to usa as a K-1. If that is the case, then she will have to return to home country and follow normal procedures for a planned marriage.

Alien should not have any problems with a waiver situation. She is currently in status right up until her denial letter . If she came on k-1, then she should return home before accumulating illegal presence if she is not going to appeal. Otherwise, stay, get married , get approved and live happy ever after.

Next.

I will agree with you if the I-751 was never filed, the letter from the ex was never sent. However, that letter still has to be explained through question 9. It is not as simple as a simple denial for lack of a bona fide marriage that spanned only a very short time period.

Nor would I presume waivers would be no problem given the fact that only 35% of ALL waivers are approved. Additionally, uncertainity if she came on a K1 given the short marriage and the long processing times for I-485.

Even the lawyers, which the OP quoted and you stated gave correct information, gave reference to some degree of denial and the possability of a waiver. But if you insist that the only scenario is the best case one, then that really does not do the oP any good.

I do recommend a second opinion for the OP, but my guess is it would be similar to the first lwyer's advice. And I still believe the fiancee got the raw end of the deal. She met all the criteria to remove the conditional green card, based on length of marriagee adn support evidence provided, but was denied anyway, and more than likely, the letter played a part in that decision.

Ok. Well, I decided not to post anything until I had anything new and productive to say.

We did go and find a lawyer and a second opinion / reassurance at that.

After consulting an attorney I will provide some of the points discusses and clear up some of the unknowns.

• The denial of the I-751 does not constitute fraud. The consequence of the denial is that the person automatically is set back to whatever immigration they had prior to the marriage.
  
• It is true that getting married will not help with removing the conditions will the trial about the previous marriage.
  
• However, getting married will allow the non US citizen to get another 2 year greencard and the process can be started all over again.
  
• We will go to trial and try to prove our case in front of the judge. If we succeed, within a year we would be able to petition for citizenship. If we were to fail in our appeal, we can still get married and will have to be issued a new green card.
  

To me, this seems like great news. I hope that this information can help someone else someday with a similar problem.

Immigration Marriage Fraud Amendments of 1986

References: Section 216 of the Act
8 CFR 216
(a) General . The Marriage Fraud Amendments of 1986 (“IMFA”) were enacted in response to a growing concern about aliens seeking permanent residence in the U.S. on the basis of marriage to a citizen or resident when either the alien acting alone, or the alien and his or her reputed spouse acting in concert, married for the sole purpose of obtaining permanent residence. Congress was particularly moved by the testimony of numerous citizens whose alien spouses had left them shortly after obtaining residence, as well as the testimony of Service representatives concerned with “marriage for hire” schemes. Congress also acknowledged the inherent difficulties faced by the Service in determining whether the marriage is fraudulent and whether the alien intended to leave the marital union once lawful permanent residence was granted.

In response to these concerns, Congress passed IMFA, which added section 216 to the Immigration and Nationality Act. Section 216 created a conditional residence requirement for aliens who acquire permanent residence based on recent marriages. The condition being that persons subject to the provisions of IMFA were required to petition the Service two years after obtaining residence for removal of the conditional basis of the residence. Failure to do so, or denial of the removal petition, would result in the alien losing residence status and being removed from the U.S. as a deportabl e alien. Section 216 also includes a waiver provision because it recognizes that under certain circumstances (e.g., if the marriage had dissolved through no fault of the alien), the alien’s loss of residence and deportation from the U.S. would be inappropriate.

The conditional residence provisions of section 216 apply to:

• Any alien who, based upon a marriage to either a citizen of the U.S. or a lawful permanent resident of the U.S., obtains permanent residence within two years of such marriage (i.e., as a spousal Immediate Relative or second preference classification); and

The section 216 provisions do not apply to:
• An alien who obtains permanent residence through a marriage which is more than two years old at the time of admission or adjustment;

• An alien who obtains permanent residence on a basis other than marriage (e.g., a woman who adjusts through an employment-based petition, even if she is married to a citizen at the time);

• • Approximately 90 days before the second anniversary of the date on which the alien obtained conditional permanent residence, the Service must (attempt to) notify the alien a second time of the requirement that the alien and petitioning spouse must file a petition to remove the conditional basis of the alien's lawful permanent residence. The notification will be mailed to the alien's last known address. However, failure on the part of the Service to provide notification (which can occur, for example, if the alien fails to notify the Service of a change of address) does not relieve the alien and the petitioning spouse of the requirement to file a joint petition within 90 days preceding the second anniversary date of the alien's conditional status. This notification is done on an automated basis by the Immigration Marriage Fraud Amendments System . (This system is known in some offices as IMFAS (“im-FASS”) and in others as MFAS (“MAY-fiss”).)
(c) Filing for Removal of Conditions . There are two vehicles through which the conditional basis of residence may be removed:

(1) Joint Petition . Within the 90-day period immediately preceding the second anniversary date on which the alien obtained permanent residence, the alien and the petitioning spouse must file a Petition to Remove Conditions on Residence (Form I-751) with the Service Center having jurisdiction over the alien's place of residence. Normally, a conditional resident child is included in the joint petition filed by his or her parent and step-parent. The joint petition must be filed within this 90-day window regardless of the amount of physical presence which the alien has accumulated in the U.S. The one exception to this rule is that if either the alien or the petitioning spouse (or both) is outside the U.S. on U.S. government orders, the filing window does not commence until the person(s) on orders returns to the U.S.

(2) Waiver . The conditional permanent resident, acting alone, may apply (also on Form I-751) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5 .The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:

• The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;

• The refusal of the petitioning spouse to join in the filing of the petition;

• A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);

• The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent; or

• Any other reason which is provided for in the Act.

Note : The alien may cite multiple reasons for filing the waiver application. In fact, other than the battered spouse/child waiver, all reasons MUST be applied for at once. (The battered spouse/child waiver may be sought either in combination with other reasons listed on the same Form I-751, or on a separately-filed Form I-751.)

(d) Ineligibility for Adjustment of Status . Under section 245(d) of the Act, an alien who is a permanent resident on a conditional basis under section 216 of the Act is not eligible for adjustment of status under section 245(a) of the Act. The implementing regulation is 8 CFR 245.1(c)(5) . In Matter of Stockwell , 20 I & N Dec. 309 (BIA 1991), the Board of Immigration Appeals adopted a narrow interpretation of 8 CFR 245.1(c)(5) . Under this narrow interpretation, the prohibition against adjustment of status no longer applies if USCIS has terminated the alien's conditional LPR status. In 1996, the Attorney General proposed an amendment to the regulation, so that a conditional permanent resident would remain ineligible for adjustment of status even after termination of conditional LPR status. 61 Fed . Reg . 43,028 (1996). Until the Department of Homeland Security publishes a final rule, and the final rule enters into force, however, USCI