Hello...

Here's my story...

Wife came from Mexico when she was 17 years old.

She was detained by border patrol and was given voluntary departure the day after she was detained. However, I've ordered her border patrol file (FOIA) to verify this info...

On the 3rd day she again tried to enter US - this time she was successful.

We have two babies.

We would like to know if we can submit I-130 and I-601 for her....

Our main concern is: since she was detained @17 (being a minor) and then she attempted EWI...is this gonna hurt her chances?

Is she in the USA right now?

http://travel.state.gov/visa/frvi/ineligib...ities_1364.html

Illegal presence prior to the age of 18 does not "count":

(iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

Her attempts also do not count if she was "caught and released" back to the Mexican border rather than detained, fingerprinted and given voluntary departure.

It appears she then has only one entry that "counts". You should know that it can take up to one year for an FOIA response and even then, the information is not always helpful. I would recommend a consult with attorney Laurel Scott www.visacentral.net who is strongly recommend for waivers in Mexico. You should also check out the forum on immigrate2us.net where many, many people are in similar situations as you. Also, be aware that once the I-130 is approved and forwarded to the consulate in Ciudad Juarez, it is currently taking 12+ months for an interview. If you want to speed it up, you should also file an I-129F. If you want to wait to see if Comprehensive Immigration Reform passes this year allowing her to pay a large fine rather than go through the 601 process, you should drag out the process so she will be covered (as long as the I-130 is in process, she would be eligible if it passes).

You should also read on immigrate2us about the Pilot Program in Ciudad Juarez for 601 waivers that just went into effect. Most of all, if she is going to stay in the US until her interview, keep in mind that she is currently deportable because of her illegal presence and you should be very, very careful. Good luck.

Thanks for your reply...she was actually fingerprinted...

even though while she was a minor... Hope that doesn't hurt our case...

I hope that portion your are quoting (immigration law?) means that even through she was caught/finger printed/and given voluntary departure, while she was still a minor does not count against her...

Currently she's in the US....

Manito2000

People are fingerprinted even when they are caught and sent back across the border with no deportation (catch and release). Fingerprinting doesn't mean it's more serious that not being fingerprinted and since the law says her time under the age of 18 is not counted, it's not an issue. But I would still highly recommend a consult with a qualified attorney to be 100% clear on her situation and the best next steps for her.

p.s. read the link - it's regarding visa ineligiblites and actually fairly clear and easy to understand

No naughty naghty for two EWIs, or you're saying the first one isn't an EWI since she never really entered?
I've often wondered about the multiple EWI rule, if you wouldn't mind sketching it out in three sentances.
there's a love

Her first entry is not an issue because it was an "attempted entry" and she left "voluntarily" - so yes, it doesn't count because she never really entered and did not accrue illegal presence of 180 days or more. When she re-entered after the voluntary deportation, it was her first entry. Her illegal presence clock started ticking on her 18th birthday so if, for example, she left the day before her 18th birthday, she would not need a waiver. But if she stayed until 181 days after her 18th birthday, she would need a waiver. (In this case, since they have two children, my assumption is she never left the US after she successfully entered illegally and she has therefore accumulated more then 365 days of illegal presence and will face a 10 year ban when she leaves for her interview. Strangely enough, it's not the actual illegal entry that creates the problem - it's the illegal presence).

But in general regarding multiple EWIs --

Multiple illegal entries/illegal presence of more than 180 days each time (after 1997) = no waiver available for 10 years

INA §212(a)(9)© provides that aliens who were unlawfully present in the United States for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted, are excludable. A waiver is permitted if the alien is seeking admission more than 10 years after the alien's departure from the United States and if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplying for admission.