Can anyone please tell me if i can re-apply for my wife if she has a ten year penalty for overstaying in the U,S.
when i first applied for my wife i was an LPR and had filed the I130 for her.
She went throught the whole visa process n was denied, and had to fill out a hardship waiver because she had overstayed for 4 years.
I have just becme a citizen and want to get her back in the U.S and do not know what to do or where to start. If someone can please advise i will greatly appreciate it.
Do i need to file the I130 again or what.
Also i have three children
2 are u.s.c
1 British
all under the age of 5.

Rick

I am not sure if you need to apply the I130. Was it denied? You can re apply for the 601. I am aslo re applying.
you may find more information here
http://immigrate2us.net

My understanding of this process is- that if your I-601 waiver is denied than your I-130 is denied. In some cases where people's I-601 waivers are denied people have filed paper work to appeal the decision. And an appeal can take from 18months on to get seen -approved or denied. That being said, if you've done nothing after the inital denial of your waiver you'd probably have to start the process over. I think you might get more information on the pocess over on the immigrate 2 us forum.

Actually the I-130 stays alive, because it does not have an expiration date--in some cases after a 601 is denied they can "wait out" the ban and be approved immediately. The only way for it to "die" is if it is revoked for another reason, which it seems has not happened in this case.

What you need to do is figure out where the I-130 is right now and then have it transferred to the consulate where your wife resides. Sometimes it is transferred back to the original USCIS office, but if it has been less than a year it would still be at the consulate. You can call the Department of State or USCIS customer service to try to make this determination.

Is the ban now over? How long has it been since the I-601 was denied? This will help determine whether you have to re-apply for an I-601 or appeal the old 601 decision or even file one at all.

In this case, while you can do it alone, since the 601 has already been denied once I would encourage you to consult with a qualified immigration attorney that is experienced with 601 cases. Immigrate2US is a good place to start as they advised, but an attorney is definitely a good idea. There are also suggestions for attorneys on that site from all over the country as well as examples of previously approved 601 packages.

Good luck :-)

That's interesting that you say emt. When I was dealing with my lawyer I was told something different about how long a petition/visa can remain open. I'm going to do some research on that topic because I vaguely remember something about a petition having an end date if no action is taken on it.

After a year of inactivity it no longer "resides" at the consulate, lots of time ending up back at the USCIS office. Time spent processing the 601 doesn't count because they are waiting on processing and that sometimes takes longer than a year.

She has got 6 years left on her penalty.