citizenship denied because INS issued wrong greencard

J

JimW

New Member
Hello all, I'm glad this site exists.

My sister-in-law married my brother in late 2001. 1.5 years later she came to the US (around March 2003). A month later they sent her an IR1 green card (valid for 10 years). On the letter, they said that she would be come a Permanent Residence (Permanent in bold type).

She applied for citizenship last Spring, everything went fine; even the interview officer said that there're nothing to worry about although there's some kind of mistake. She waited for the oath ceremony for more than 3 months and then she got the letter denying her of the citizenship.

The reason they gave was that because she entered the USA before her 2nd wedding anniversary she should have been given a CR1 green card and 2 years after entry she should have filed the I-751 form (petition to remove the conditions of residence) Of course, she didn't do that because she had the IR1. So they don't consider her a legal resident and therefore inelligible for citizenship.

The bottom line is they acknowledge the mistake but they act as if it's her mistake. They don't give her any clue on how to fix that (their mistake). They give her 30 days for a hearing chance at a cost of around $650.

So my question is how to proceed from here. Should she do the I-751 (the deadline already passed for almost 4 years) and go to the hearing, or just wait for her green card situation to straighten out and then reapply for citizenship? Any advise is appreciated.
 
For my 2 ct you need to take them to court and have a judge fix the issue.
I tried to get some info on how to clean up a mistake (Senator etc) and got exactly nowhere.

On a side note, what is her status now, since she didn't file to have the condition removed. What did they tell her? Issued a new GC and if not, isn't that an omission?
I mean they had her in the office - right?
 
Sorry to hear this..

One more case of USCIS/INS messing up and then blaming the applicant.

1. Get a Lawyer
2. Get certified copies of your green card. You dont want it taken from you until you have a solution
3. Contact the ombusperson, explaining them the entire situation. This is something where he has to get involved, as this is completely there mistake
 
Was the marriage date correct on the original visa application?
The hearing they are referring to is for the appeal she must file. I doubt they would change their ruling since on paper they will argue they ruled correctly even if the GC was issued under wrong visa.
I would focus on getting the GC corrected and then reapply instead of spending time and money on a hopeless appeal.
Contact a good lawyer and get the USCIS ombudsman involved in the case as well to see what your options are.
 
Well Bob,

I sort of disagree - you need to take them to court. One reason is that if they don't back date the change of status, she is still back on the waiting list.

Even I had (in presence of my wife) asked the IO to correct a mistake they made and she (IO) promissed she would. Nothing ever happened and unless you have a court order, it will be on her records for ever.
 
MartinAub said:
Well Bob,
- you need to take them to court. One reason is that if they don't back date the change of status, she is still back on the waiting list.
Click to expand...

Correct, hence the suggestion of speaking to a lawyer first. IMO, the USCIS appeal process is a waste of time and money especially when it involves a decision based on issuing a GC under incorrect visa number.
The OP is better off taking the matter up in Federal court if regular channels (writing to USCIS and/or Ombudsman ) don't work.
 
Can the USCIS argue that although they made a mistake in issuing a nonconditional GC but as the applicant she shoudl realize this was a
mistake and should have asked for a correction in the first place?
 
Tricky situation. I'd probably filed I-751 and asked for a backdated decision. Depending on the results I would decide whether to dispute a decision on I-751 in federal court. I agree with Bob that it'll be easier to reapply for N-400 instead of appeal in this case.
 
But she cannot really reapply for the N-400 because she did not remove the conditions on permanent residency. This is the USCIS' mess and instead of telling her how to fix it, the just leave her to roast. Why am I not suprised.
Interesting thing is the appeal is for the N-400 and not for resident status. Remember the appeal has a time limit. So why not do both. Appeal the N-400 and fight for a corrected GC. I will go ahead and file the appeal and if possible, the I-751. For a case to succeed in court, you have to demonstrate that you exhausted all administrative options available. Ignoring the appeal will contradict that premise.

lazycis said:
Tricky situation. I'd probably filed I-751 and asked for a backdated decision. Depending on the results I would decide whether to dispute a decision on I-751 in federal court. I agree with Bob that it'll be easier to reapply for N-400 instead of appeal in this case.
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That is exactly what they will argue.

WBH said:
Can the USCIS argue that although they made a mistake in issuing a nonconditional GC but as the applicant she shoudl realize this was a
mistake and should have asked for a correction in the first place?
Click to expand...
 
Triple Citizen said:
That is exactly what they will argue.
Click to expand...

I once heard there is statute of limitation for USCIS to correct their own mistake. Otherwise if they issue a GC by mistake, then after certain period of time, they can not take it back. This of course assume the applicant did not hide anything.

We often heard the dependents I485 application are approved before primary applicants' I485 case, which should not happen.
Many even contacted USCIS for clearance and USCIS reply that a card issued is a card issued so keep yoru grene card.
There are also some cases some applicants GC were approved prematurely which actually made thinsg bad for some H1Ber
who still wanted to bring their wife here on H4 visa. If they got their GC, then H4 visa was not doable anymore
and their wives need to wait 5 years outside USA. Soemtimes these people contact USCIS and explain their GC
should not be approved now. USCIS typically also answer:"Your green card is issued. Just keep it"

But I am not sure whether this, even if it is true, applies to OP's case.
 
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WBH said:
I once heard there is statute of limitation for USCIS to correct their own mistake. Otherwise if they issue a GC by mistake, then after certain period of time, they can not take it back. This of course assume the applicant did not hide anything.

QUOTE]

Just I stubmbled upon this thread now and may be a belated info'.

Rescidning GC for adminstrative errors after 5 years normally not possible by CIS and only in Kind of special cirumustance exist.
'USC Title 8§ 1256. Rescission of adjustment of status; effect upon naturalized citizen
(a) If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.
(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of section 1451 of this title as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation. '

*They need to consult a good lawyer .
-------------------------------------------------------------------------
Note: I am not a lawyer and I am just a lay man without any legal knwledge.!
Read the above STRICTLY at your own risk.
Click to expand...
 
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newapplicant said:
WBH said:
I once heard there is statute of limitation for USCIS to correct their own mistake. Otherwise if they issue a GC by mistake, then after certain period of time, they can not take it back. This of course assume the applicant did not hide anything.

QUOTE]

Just I stubmbled upon this thread now and may be a belated info'.

Rescidning GC for adminstrative errors after 5 years normally not possible by CIS and only in Kind of special cirumustance exist.
'USC Title 8§ 1256. Rescission of adjustment of status; effect upon naturalized citizen
(a) If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 or 1259 of this title or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien’s status prior to commencement of procedures to remove the alien under section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien’s status.
(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of section 1451 of this title as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation. '

*They need to consult a good lawyer .
-------------------------------------------------------------------------
Note: I am not a lawyer and I am just a lay man without any legal knwledge.!
Read the above STRICTLY at your own risk.
Click to expand...

What does it mean? Can anyone use plain English to interprete?
Click to expand...
 
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