Interview Soon..Worried about denial, NTA!!

S

SZ77

Registered Users (C)
Dear experts,

Please read my previous post if you can find it, but here's my situation:

January,2010 i applied for naturalization based on 5 year rule. My green card was obtained through marriage to USC. However, after being married for a little over three years, we ended up divorced while I was still waiting for status adjustment. It was back in 2003 when a lot of green card applications were delayed. Shortly after divorce, I recieved a 10 yr green card, skipping through the whole conditional residency deal since I guess we were married for 3 years. So, I got divorced, then I recieved the green card. And, having no experience with what I should have done then, I failed to write to USCIS about my divorce, eventhough I verbally informed them at the local office when they called me for a second fingerprint appointment.
Anyway, after my naturalization interview, I hadn't heard from USCIS for over 3 three months with a decision. Finally after so many InfoPasses, the officer who interviewed me told me that there's an issue with my green card, because I obtained it after I was divorced, and that I shouldn't have had it to begin with.
Here's what the laywer told me to do:
I withdrew my N-400 before a decision was reached. So I never recieved any decision from them. Right after, my current USC wife and I filed for a new adjustment of status. December of 2010, we went for i-485 interview. 2 weeks later I recieved a decision letter saying that my i-485 is denied. Because it says that there's no evidence that my current permenant residency is terminated. And it continued to say that this decision does not affect my permenant residents status, and that I am still a LPR.
So, based on this letter, I decided to reapply for N-400 again. I filed in january this year, and I have an interview coming up on thursday! Now, I'm a little nervous and I can't get my thinking straight on whether if I made an irrational decisioon by applying so quickly, and maybe I should have waited a little longer before considering applying for n-400 again. Please share your thoughts about what I should do! you think they will deny it? and send me an NTA? if it went to immigration court, what are my chances to win a new adjustment of status" establishing hardship" or be granted citizenship? any input will help! Thanks!
 
They absolutely will deny your naturalization. They can't approve it, because you were factually ineligible for the green card at the time it was approved. You were crazy to file the N-400, given that there is no hope of approval and you're risking deportation by applying.

Because it says that there's no evidence that my current permenant residency is terminated. And it continued to say that this decision does not affect my permenant residents status, and that I am still a LPR.
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Yes, you're still an LPR, but that doesn't mean you're eligible for naturalization, nor does it mean they can't revoke your status. It only means you're still an LPR at this moment.... until and unless they take steps to revoke your GC.

All you can do now is withdraw it, and hope that they don't pursue revocation. But denial of the N-400 is certain if you don't withdraw.

If you end up in removal proceedings, perhaps you can come to an agreement with the court to let them allow you to stay in the US and file a new I-130 and I-485 immediately after revocation. But I'm not sure how realistic or allowable that is; discuss that possibility with a lawyer.

Did you overstay for more than 180 days before filing the I-485 (the first one)? If not, if they won't let you stay in the US there is the possibility of returning to the US 6-12 months later with a new green card via consular processing. Again, discuss this with a lawyer.
Here's what the laywer told me to do:
I withdrew my N-400 before a decision was reached. So I never recieved any decision from them. Right after, my current USC wife and I filed for a new adjustment of status. December of 2010, we went for i-485 interview.
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Did the lawyer tell you to withdraw the N-400 and file a new I-485? Or did they say only to withdraw the N-400?
 
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Jack, The lawyer told me to withdraw the n-400 and he immediately"same day" got my paperwork together and sent off the new green card packet. Don't know of that makes any difference, but the I-130 did get approved. Filing the new n-400 was completely my decision, the lawyer was idle about it because of the risk involved! I was a full time student when I applied for the first green card. But I think that they will impose a ban on me if they considered my current green card invalid and counted all the entries from my international travels against me. But my question is, why haven't they initiated proceeding from the beginning? This happened almost 12 months ago!
 
SZ77 said:
Jack, The lawyer told me to withdraw the n-400 and he immediately"same day" got my paperwork together and sent off the new green card packet. Don't know of that makes any difference, but the I-130 did get approved. Filing the new n-400 was completely my decision, the lawyer was idle about it because of the risk involved! I was a full time student when I applied for the first green card. But I think that they will impose a ban on me if they considered my current green card invalid and counted all the entries from my international travels against me. But my question is, why haven't they initiated proceeding from the beginning? This happened almost 12 months ago!
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Mr...............
Your greencard approval came after you were divorced. Therefore, you got your greencard even though you were not elligible. In situations like this, you can stay on your greencard while it expires. The uscis may never know. The problem arises when it expires or when you try to naturalize. In the case if it expires chances are 50/50 they may discover you or may not. But the natulization process it is difficult to get away with it. They are gonna for your divorce decree and a copy of your greencard and it is easy to find out the discrepency.

Now you withdrew you N-400 before adjudication. Essentially, you are a permenant resident. There is no way you can be issued another greencard. Now that now you have N-400 in process, it not any better than the old one. Who knows you might a nice officer who might not notice the problem and approve...Also the old N-400 you withdrew is still sitting in your file which makes problem detection easy.....any way my opinion is that your N-400 will be denied, and your greencard may be revoked or not and you will have to pick it up from there
 
Thanks for your reply Faysal..I'm going to meet with my lawyers on Tuesday to discuss it further!
 
SZ77 said:
Jack, The lawyer told me to withdraw the n-400 and he immediately"same day" got my paperwork together and sent off the new green card packet.
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I'm surprised the lawyer didn't know that you would first have to surrender your GC or get it revoked before you could file a new I-485.

But I think that they will impose a ban on me if they considered my current green card invalid and counted all the entries from my international travels against me.
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No, you won't be penalized for your travels with the GC. But if you overstayed before filing the original I-485 that led to your green card, I expect that won't be forgiven if they revoke your GC for not having a legitimate GC approval. If you have no overstays that would trigger the 3- or 10-year ban, and you are granted voluntary departure in the removal proceedings, you could return to the US with a green card in 6-12 months. Possibly 3-4 months, if you can still use your recently approved I-130 and have your wife file I-824 to transfer it to a consulate abroad.
 
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INA: ACT 246 - RESCISSION OF ADJUSTMENT OF STATUS

Sec. 246. [8 U.S.C. 1256]

(a) If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 245 or section 249 of this Act 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 canceling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this Act 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 240 , and an order of removal issued by an immigration judge shall be sufficient to rescind the alien's status. 1/

(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 340 of this Act as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation.

********

It is unlikely that DHS will bother trying to take away your LPR status. Your case is so low in the priorities that UNLESS you have a criminal conviction, they won't bother about you. They are not required to pursue such a case and must balance equities before proceeding. It is more likely than not that DHS will exercise prosecutorial discretion and leave it be.
 
BigJoe5 said:
It is unlikely that DHS will bother trying to take away your LPR status. Your case is so low in the priorities that UNLESS you have a criminal conviction, they won't bother about you. They are not required to pursue such a case and must balance equities before proceeding. It is more likely than not that DHS will exercise prosecutorial discretion and leave it be.
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And if he is eligible to reimmigrate in the near future via a petition filed by his current wife, that makes it even less worthwhile for them to bother revoking the GC.

However, by applying and reapplying, he is constantly shoving his situation in their face and almost demanding that they take action about it. His best bet is to withdraw, never reapply for naturalization, and hope they'll leave him alone. Either that, or leave the US and surrender the GC, and then reimmigrate on the basis of a new petition.
 
SZ77 said:
And, having no experience with what I should have done then, I failed to write to USCIS about my divorce, eventhough I verbally informed them at the local office when they called me for a second fingerprint appointment.
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Do you think they wrote down that fact or entered it into the computer?

After withdrawing your N-400, use FOIA to obtain your A-file. If there is evidence in there of you telling them of your divorce before your green card was approved, they won't be able to revoke your green card on that basis, because it's beyond 5 years since GC approval and after 5 years it's too late to cancel your green card based on information they already had before GC approval. You still wouldn't be eligible for naturalization, but knowing that they had the info on file back then would buy you some peace of mind.
 
BigJoe, Will you please explain that law a little more? I'm having a hard time understanding it. Jackolantern, when I tried to tell the IO about the verbal notification she told me that doesn't count and that I should've wrote to them.
 
let's say that I would to proceed with the upcoming interview, how would that affect me? assuming BigJoe's law is the fundamental factor in the eyes of uscis? Meaning, if or when they deny the n-400, will they initiate deportation also? Or will they just leave it alone? I'm very thankful to what you guys are telling me. It's helping me tremendously!
 
SZ77 said:
Jackolantern, when I tried to tell the IO about the verbal notification she told me that doesn't count and that I should've wrote to them.
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Yes, you should have written to them, but if the verbal notification of your divorce was recorded on file back then, it's too late now to revoke your GC based on the divorce.
 
sz77,

what's hapened to your case now? can you give us some update? did you go to interview? and what did your lawyer say? I have a similar situation (the only difference is I divorced soon after 10 years Green card), had n-400 interview on May 17th, and now still waiting for decision letter, had infopass on July 5th, then their computer showed my case trasfer to a different department (in the same building) for review... thanks everyone here for sharing your thoughts!
 
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