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Hey all.....long time no see!


Well.....after waiting for a very long time for a decision in our case. I did, in fact, move here to China last year in September with the assumption and hope that USCIS would approve the petition within a few months at the most (silly me). Here it is 1 year later and still nothing. All I get every time I call is "Your case is pending and is currently being processed". I am told every time that if a decision has not been made within 3 months to call back.

For those of you who do not know, we have been going through all this heartache because of the fact that I am a convicted felon from 10 years ago (no it was not for domestic battery or any violent crime). I even waited for 1 year for the FBI to complete a background check on me before they returned our case back over to USCIS in May of this year.

So, here is the issue I am wondering about now. With a case currently pending with USCIS at the Vermont Service Center, and my criminal history, would we be able to do a DCF in Guangzhou? I have more than met the 6 month residency requirement, but I am concerned about my current petition and my criminal history. The form to file for the DCF is only the I-130, which does not ask about the petitioner's criminal history (when we filed the I-130 for spouse visa in 2009, it was required to file an I-129F form as well, which DOES ask about the peitioner's criminal history).

Basically, would I need to/be able to withdraw my current petition at the Vermont Service Center, and them file a DCF in Guangzhou? Since it is a DCF, would they do a background check on me or just my wife? Also, would they be able to get on their computer and see that I had a petition pending at the VSC and ask why I withdrew it and/or see that I have a criminal history?

Anyway.....since I have no idea when/if USCIS will make a decision in our case, I was wondering if we could file a DCF since I have lived here with her for more than 1 year.

Any input is appreciated. Thanks.

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You probably won't have any trouble FILING DCF as long as you can show legal presence. But you need to realize that this is a duplicate filing - not so much that you'd have two in the pipeline, but that you can't simply erase or side-step the first one by filing a second. USCIS in China is still USCIS.

 

You need a lawyer such as Marc Ellis who can take a look at your entire case, and advise you about what to do next. We can't do that.

Edited by Randy W (see edit history)
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Filing an I-129F is for a K-visa even back in 2009 that was not a requirement, even then could have simply filed just an I-130 for a CR-1 spouse visa, it still probably have been hung by a petitioner background check.

 

As Randy said you will be dealing with USCIS field office located in China so they should be able to look up the other pending case.

 

I would consult a lawyer like Ellis before making any moves.

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Thanks for the replies. I was afraid I would be told to consult a lawyer. I don't have money for a lawyer,, but I suppose I could contact MarcEllis and see what he says. How can I get in contact with him?

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Thanks for the replies. I was afraid I would be told to consult a lawyer. I don't have money for a lawyer,, but I suppose I could contact MarcEllis and see what he says. How can I get in contact with him?

http://www.marcellislaw.com/

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I will add, ask Marc about filing a Writ of Mandamus with regard to the stalled petition at VSC, in the past when I have seen stalled cases over background checks, I have seen filing a Writ of Mandamus against USCIS in many cases forces then to make a decision on the stalled file.

 

Read:

 

http://www.visalaw.com/05feb3/2feb305.html

http://www.hmalegal.com/how-an-immigration-writ-of-mandamus-works.html

http://www.cundyandmartin.com/immigration/issues/immigration-delays.php

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  • 3 weeks later...

Thanks for the advice all. I contacted Guangzhou and found out for sure that we can't file DCF due to the circumstances. This thread can be closed.

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