Does My Fiance Need a Waiver?

[AB&BB 2]

Hello,

 

I apologize in advance if somewhere on these forums this specific question has been answered. I have searched and haven't been able to find something that exactly matches my case.

 

So, here's the full story from the beginning:

 

My fiance and I met online a couple years ago and began dating. She is from Brazil. We wanted to meet and in 2016 she applied for a tourist visa, which was denied. She tried again last year in 2017 and got her tourist visa. She came to visit me from November 2017 to February 2018. After she returned home to Brazil, we decided we wanted to go forward and get married. 

 

We had both done some research into the options available for this. I wasn't sure, so I called USCIS and talked with an agent. The agent told me that there were two options for getting married and changing her status to permanent. The first was to get married while she was here on a valid visa and simply apply for a change of status. The second was to go through the K-1 process. It seemed a little strange to me since the K-1 would take much longer and cost a lot more money. I called again and talked with a second agent who confirmed what the first agent said. I asked the agent verbatim "Can she enter the country saying that she will get married to me with a tourist visa?" and the agent said "YES." Logically, the first option made much more sense, so we decided we would get married when she returned on her tourist visa.

 

A couple of weeks ago, she tried to enter the country again. When she was questioned by immigration, she openly stated she was coming to get married to me. I received a call from one of the officers detaining her and confirmed what she said. We weren't trying to hide anything as we genuinely believed what we were doing was proper and valid. The officer said that USCIS tells a lot of people they can enter with a tourist visa to marry a US citizen but unfortunately, it is not true. So, having been lied to and led astray by an official government agency, the very one that issues visas and citizenship, was pretty shocking. We were stunned and devastated that they weren't going to let her into the country. 

 

I won't get into all the abuses she suffered while being interrogated and detained, but basically they never requested a translator so she didn't understand most of what they were asking her and forced her to sign a Withdrawal of Application for Admission/Consular Notification (Form I-275). She was too shocked and scared to ask for a translator because she felt as though they were treating her like a terrorist. On the first page, under "Basis for Action," there is checked "Visa/BBC Canceled" and "Ordered removed (inadmissible) by DHS - Section 235(b)(1)(order attached)."

 

On the second page, it states, "While under oath, subject stated she has met a United States citizen online and was coming to get married to him. Subject was very honest and upfront."

"Subject was inadmissible to the U.S. under 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act for being an immigrant without documents as she was coming to stay and live in the United States." "... a Withdrawal of application was offered and approved. Subject was advised she could no longer use her B2 visa, subject was advised she will need a visa next time traveling to the United States."

 

On page six, it states, "Q: You have been found inadmissible to the United States pursuant to 212(a)(7)(A)(i)(I) of the INA. You may request permission to withdraw your application for admission in lieu of a formal determination concerning your admissibility. This request is strictly voluntary. If you request permission to withdraw your application for admission, your visa will be cancelled and you will be removed from the United States at the earliest opportunity. If you choose a formal decision, you will be ordered removed and prohibited from entering, attempting to enter, or being in the United States for five years from the date of your departure from the United States."

 

The last page is a statement that includes, "... I request that I be permitted to withdraw my application for admission and return abroad," and her signature.

 

The rest of the paperwork details the remainder of the detention and search and all the questions they asked her and her answers. She told me that every single one of the officers she was in contact with told her, without her asking, that she would have no problem getting a K-1 visa if she applied. She and I have both searched extensively online for the meaning of the above-mentioned codes, the ramifications of being "inadmissible", and anything else that can shed some light on whether or not she is able to return to the U.S. with no problems or restrictions.

 

So, my questions are:

 

1. If she requested to be permitted to withdraw her application, then why is the box on the first page, "Application for Admission Withdrawn" not checked?

2. Does either  "Visa/BBC Canceled" or "Ordered removed (inadmissible) by DHS - Section 235(b)(1)(order attached)" mean that she will need a waiver to enter the country again?

3. If she does need a waiver, do we need to file it before or after we start the K-1 Visa process (filing the I-129F)?

4. And heck, what does being "inadmissible" even mean? Does that mean that anyone found inadmissible can't enter the country without a waiver?

5. Is there any government agency that can answer the question of whether or not she needs a waiver? 

 

I have called the POE number that called me when she was detained and they told me to call the embassy in Brazil. I tried calling the US number for the Brazilian embassy but it wouldn't connect me. My fiance can't call the embassy in Brazil because it is in another state. She has tried multiple times to get an answer from the consulate in her city but every time they tell her she needs an appointment. The only way she can get an appointment is if she has an interview. And the only way to get an interview is if she has applied for a visa. How can we get an answer when this asinine system won't even let us speak to someone to ask them a simple question??

 

I've searched and searched and found that under some circumstances no waiver is required but for others, a waiver IS required. However, those sources are never specific enough to tell me if my fiance's case needs one or not. And for those people who just say "Contact an immigration lawyer," yes, I have tried to get in touch with two lawyers, one from my area, and the other being Lizz Cannon who people have mentioned repeatedly on this website. I plan on ultimately speaking with one if they ever return my calls but for now, I'm hoping if anyone here can shed some light on these questions that my fiance and I have.

 

From what I read about the I-601 and I-212 waivers on the USCIS website about "Who May Apply," neither one of these waivers applies to my fiance. I have read the instructions for both and nowhere in either does it cite "212(a)(7)(A)(i)(I)" as requiring a waiver for reentry. If it does, then it is so obscure and confusing for me to see it or understand it.

 

In closing, both my fiance and I have no problem following the law and taking the appropriate steps to bring her to the country legally. We have no problem waiting our turn in line and paying the appropriate fees to do so. What we DO have a problem with is a nonsensical system that is so arcane and punitive that you are out $935 or $535 for filing in the wrong order or leaving out a piece of information. That is the purpose of this post - to understand, without a doubt, what course of action we need to take.

 

I appreciate you taking the time for reading this post and any answers to come. Thank you all and I am sure we would be completely lost without this community.

[Going through 5,668]

14 minutes ago, AB&BB said:

The first was to get married while she was here on a valid visa and simply apply for a change of status. The second was to go through the K-1 process. It seemed a little strange to me since the K-1 would take much longer and cost a lot more money. I called again and talked with a second agent who confirmed what the first agent said. I asked the agent verbatim "Can she enter the country saying that she will get married to me with a tourist visa?" and the agent said "YES." Logically, the first option made much more sense, so we decided we would get married when she returned on her tourist visa.

Sounds like a bit of miscommunication here.

 

Legally, yes, you can get married in the US on a tourist visa but you must return to your home country if the INTENT was to get married.

You cannot cross the border on a tourist visa with the INTENT to get married AND stay to adjust status, however. 

 

If she stated her true intention of getting married in the United States and then REMAINING in the United States to adjust status, (or the officer believed she was going to stay and adjust status from within the US) then yes, the officer rightfully denied her entry.

Edited June 15, 2018 by Going through

[aratamorne 164]

She voluntarily withdrew her application to enter the US by signing.  They state that they cancelled her B2 and she needs a new Visa.  You should have no issue applying for a K1.  Alternatively, you could marry her in Brazil and apply for CR1, which would take a few months more to get her here, but will cost a bit less and she can immediately start working.  It does not appear that they applied a ban since she never entered the US and left willingly (scared and bullied most likely, but she signed and kept it from becoming a formal hearing)  

 

Good Luck

[GreatDane 366]

She 'voluntarily' withdrew and they cancelled her visa. She will have a difficult time getting a visitors visa again, but she isn't inadmissible. Get married in Brazil asap and file for CR1 or start the K1 process.

The immigration officer was correct, however you most likely misunderstood each other. She could have married in the US if she was already here before you decided to get married and then adjust. She could come to the US, marry, and leave to file CR1 paperwork, but there is no way to come with the intent to stay and get married on a tourist visa.  

[Boiler 43,394]

I see no major issues, just maybe a minor delay, just need to get married in Brazil, presumably you have the vacation for the planned US wedding so just a different location.

 

Annoying  but that is about all.

Edited June 16, 2018 by Boiler

[geowrian 22,335]

INA 212(a)(7)(A)(i)(I) is the section that prohibits entering the US as an intending immigrant without the appropriate travel documents (i.e. a visa that permits immigrant intent, like a K-1 or an immigrant visa). There is no bar associated with this provision directly. However, CBP can issue an expedited removal in conjunction with a violation. That would make somebody inadmissible for 5 years, meaning they can't be issued a visa or admitted (without a waiver for the inadmissibility).

 

It sounds like she was permitted to withdraw her application for admission instead of having them issue an expedited deportation. Her visa is no longer valid and she is unlikely to be granted another non-immigrant visa anytime soon (barring dual-intent ones like a K-1). There is no bar for a withdrawal of admission...well unless the CO later determines that she made a misrepresentation as well (but it sounds like she was honest and they felt she was honest so I don't foresee this being an issue).

 

8 hours ago, AB&BB said:

I wasn't sure, so I called USCIS and talked with an agent. The agent told me that there were two options for getting married and changing her status to permanent. The first was to get married while she was here on a valid visa and simply apply for a change of status. The second was to go through the K-1 process. It seemed a little strange to me since the K-1 would take much longer and cost a lot more money. I called again and talked with a second agent who confirmed what the first agent said. I asked the agent verbatim "Can she enter the country saying that she will get married to me with a tourist visa?" and the agent said "YES." Logically, the first option made much more sense, so we decided we would get married when she returned on her tourist visa.

As others stated, it's fine to come to the US and marry. But one must also be able to demonstrate that they do not intend to stay in the US after entry. By the sounds of it, she either indicated that she did intend to stay in the US, or they believe she was at risk of doing so (there is a presumption of immigrant intent that must be overcome).

 

USCIS customer service agents are not permitted to offer legal advice. They are also often wrong in facts...it's called the misinformation line for a reason. Or there was a misunderstanding with the first agent. The second agent was correct, although the question you asked is not the same situation described involving the first agent...it lacks the AOS reference, which is the issue. When it comes to immigration, details matter.

[Jojo92122 1,924]

Apply for the K-1.

 

Do not rely on the US Government for legal advice.  Their job is to process and judge the visa application.  It's not their job to advise you what your legal options are and what you should do.  If people need advice on what to file or how to immigrate, they need to go see a lawyer.  Do not rely on USCIS, the US Embassy, or any other US Government agency for any specific advice that may pertain to how or what you should file or do.

[Boiler 43,394]

Sounds like they are looking to get married in the near future so carrying on with the CR1 would be the way to go.

[Nitas_man 3,100]

The short answer to your question is this:  Nothing she did requires a waiver.  Start your petition and do it the hard way.

[EM_Vandaveer 2,364]

There is a reason the USCIS hotline is called the "misinformation line"...

She is fine, she doesn't have a ban, doesn't need a waiver.

[gkzrl 47]

You can try sending an e-mail to the Consulate in Rio de Janeiro (where they process the K1 visas): ImmigrationRio@state.gov

 

I e-mailed them last week regarding police certificates and they responded within 2 days with all the information I needed