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Question For Sappy

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  • Question For Sappy

    Can someone who is denied an I-751 Divorce Waiver for lack of bonafide marriage file for a new AOS based on a second marriage to another USC??? How difficult/Easy is it to do?

  • #2
    Can someone who is denied an I-751 Divorce Waiver for lack of bonafide marriage file for a new AOS based on a second marriage to another USC??? How difficult/Easy is it to do?


    • #3
      Yes, but I think it depends upon the reasons for the denial.

      If an application or a waiver of joint filing to remove the conditions on permanent residence is denied, USCIS will mail the alien a letter to indicate the reasons the application was denied. Shortly thereafter, the process to initate removal will begin, effective on the date the application was denied and the alien will be informed in that notice of the opportunity to appear before the IJ (Immigration judge) to review the denial of the original application/waiver.

      During the review before the IJ, USCIS must demonstrate the reason for denial of the application ~ such as information the alien provided was untruthful; alien failed to provide sufficient evidence to show that the marriage was bona fide etc. USCIS does this to show that the application was properly denied. That said, their information must be compelling for the decision to be supported by the IJ. If the IJ agrees with USCIS findings, then he can render a decision to remove the alien from the country. An alien can appeal this decision.

      An appeal is generally required prior to 33 days after the IJ issues the decision to remove the alien. Once the appeal is processed ministerially, the case is transferred to the Board of Immigration Appeals in Washington, DC.

      If an alien chooses not to appeal the decision for removal, he has two options.
      1) Leave the country, as his/her legal status is terminated (along with any benefits such as working,) effective the date of the denial.
      2) File to gain residency through another means. If it is a second marriage-based petition, the alien would be starting from scratch as any basis for adjustment/PR that was conferred through the first petition falls as a result of the denied application/waiver.

      A marriage-based petition that is filed during removal proceedings on the basis of a marriage to a US citizen that occured after the denial of a first petition, naturally, looks odd on its face. The alien would have to overcome the presumption that the second marriage was entered into for the benefit of securing permanent residency and solving the deportation dilemmma and the alien would have a difficult chance of refuting that.

      If the second marriage-based adjustment petition is filed during removal proceedings but the marriage had existed before the denial of the initial I751 then that presumption does not exist.

      As far as I understand, in the event that the initial application (I751 or waiver) was denied due to a finding of fraudulent intent on the part of the alien, as opposed to simply not providing sufficient evidence of a bona fide marriage, then any future applications for adjustment would fail.
      The above is simply an opinion. Your mileage may vary. For immigration issues, please consult an immigration attorney.


      • #4
        I'm USC. My husband and married on 9/2/0/04 and he filed for divorce on June 6th. I have not signed the papers yet. His I-751 interview will be within 3 months of Jan. 14th, 2007. He wants the divorce to be final so that he can prove that the marriage was not a fraud and get his AOS. We have joint mortgage papers, cable bills, etc. I closed the bank acct last month. He has lots of photos, wedding, etc., he has a copy of my health insurance card. I cannot prove marriage fraud cuz he knew EXACTLY what he was doing (and what to say) and I have no hard evidence. I was told by INS here in NYC that to get this divorce asap and send letters to all the offices. Doesn't seem like much after everything that I've given him... house, his health insurance, credit cards, and of course his pending GC, he also got his SS#. Anything that I can do more?
        Would it have been better for me to have filed for divorce instead of him? I was told that INS right now is just getting people thru the system because of the backlog and not looking too closely. He has 2 bank accounts. One is real and the other account has a fake social security # that he runs his business thru. The gov't has no idea it even exits. $250,000 goes thru this account a year. We did not file taxes jointly. This is not right. I've been paying taxes for 30 years and so should all these illegals. Do I put this in my letter to INS along with filing the form to the IRS? Any info is appreciated Sappy.


        • #5
          You should respond with a suit for annulment for marriage fraud and ask for money damages for intentional infliction of emotional harm; demand this from your lawyer


          • #6
            Hi som,

            Met with another atty in NYC. She pretty much said the same thing about 751's. Half the people are not even having to go to the final interview these days cuz of the backlog. I'm going to another atty for an annulment. Fraud is very difficult to prove in an annulment but I'm going to try. After this experience I might have to get back into lobbying. Innocent US citizens are being taken advantage of and its not right.


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