MUST READ!!!! Married outside 90 days

[lucyrich 19]

This is a reply to Payxibka, emt103c, lucyrich, and anyone who left a reply.

You all have made very strong points. I don't know what the correct interpretation of the law is for my situation. How would your opinion changed if I were to tell you that at the removal hearing the judge wrote in the court order that my wife did not violate the 180 day rule? This judge was not any judge. He was and is the Chief Judge of the Baltimore immigration court in Maryland. Here's his exact words, "Respondent is deporting US prior to her 180 day to AVOID the 3 year ban and immigrate as an immediate relative."

Further feedbacks will be greatly appreciated.

I think the issue about the 180 days for your case is clear. The judge interpreted the law, and gave a decision that is completely consistent with the law. The Adjudicator's Field Manual chapter 40.9.2 gives explicit guidance as to what constitutes "unlawful presence" for the purposes of INA 212 a9B, and the judge's ruling agrees with that. Unlawful presence cannot be accrued while an I-485 is pending; it doesn't start until the I-485 is denied. Besides, where there is an issue of law, the ruling of the judge who has jurisdiction IS the authority, more so than mine, yours, an attorney's, a consular officer's, or anyone else's (except an appeals court with proper jurisdiction).

Some of us have gotten into a side discussion about the possibility of a K-1 entrant adjusting status based on a marriage that happened more than 90 days after entry. While I believe that is possible if the I-130 and I-485 are filed together, I believe that is now irrelevant to your current case, because you are past that point. I apologize if that digression distracted from the discussion of your particular case.

Like the judge, I don't see any problem or issue with proceeding to file an I-130 and getting an immigrant visa abroad. In particular the 212(a) 9B bar won't be an issue as long as she departed before the judge said she had to depart.

[emt103c 10]

Let us know what the attorney says please or what the consulate rules.

The 485 wasn't even filed until there was already an overstay of greater than 180 days.

Edited October 29, 2009 by emt103c

[Stephen + Elisha 92]

The 485 wasn't even filed until there was already an overstay of greater than 180 days.

You continue to insist that this is the case, but the immigration judge with jurisdiction over the case said differently.

[klicristina 0]

We are soooooo confused and so lost! We will talk to some more lawyers and we will post any updates.

[belinda63 2,981]

All that matters really at this point is what USCIS shows in their computer.

I really don't see what the problem is other than the issue of whether a waiver will have to be filed or not and that will be discussed at the interview.

I agree the Judge's Order carries a lot of weight and is a point to argue from but Judge's have been know to make errors and they cannot override the law.

I think before losing anymore sleep over this go to the interview and proceed from there.

Side remark. If you had married within 90 days, total cost about $20-$100 you would not be in this situation now.

[Stephen + Elisha 92]

Side remark. If you had married within 90 days, total cost about $20-$100 you would not be in this situation now.

Comments like this are wastes of server space. They contribute nothing to the discussion nor toward helping the OP. The situation is what it is.

[belinda63 2,981]

Actually i don't really understand the whole conversation, it is about how she could have adjusted status if she still were in the United States and had it approved. The entire thread is pretty much a what if situation that no longer applies since she is now in Brazil.

There are two threads about this with the poster wanting links to the legal information about how she could have legally filed for AOS and been approved prior to her voluntary deportation.

At this point in time she is in Brazil awaiting her interview. No one here knows what is in the USCIS computer, no one knows what the consulate will determine, and she will just have to wait.

And it needs to be brought of for FUTURE K-1 visa applicants that they will save themselves a lot of headache if the marry within the 90 days.

Edited October 30, 2009 by belinda63

[klicristina 0]

Hi Guys,

I want to post a question to everyone. We now know that the CBP at the airport made a human error by writing the wrong date on my wife's I-94, giving her 1 year and 3 months. In the USCIS system, the date is 3 months. Why should my wife suffer the consequences for this mistake? My wife didnt know what an I-94 was and neither did I. Is it reasonable to expect my wife to know that the I-94 should be only for 3 months? My argument is this. Why the law doesn't state this fact explically? Do you feel that it is fair? Maybe the K-1 law does state the expiration of the I-94 clearly in the law book somewhere.

[belinda63 2,981]

1. From the foreign affairs manual http://www.state.gov/documents/organization/87390.pdf

are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien’s arrival, except that the Secretary of Homeland Security in his discretion may waive the requirement that the parties have previously met in person. In the event the marriage with the petitioner does not occur within three months after the admission of the said alien and minor children, they shall be required to depart from the

United States and upon failure to do so shall be removed in accordance with sections 240 and 241 of this title.

2. From the Department of State website regarding K-1 visas. http://travel.state.gov/visa/immigrants/ty...tml#Regulations

After getting the fiancé(e) visa, your fiancé(e) enters the U.S. through a U.S immigration port-of-entry. The U.S. immigration official gives your fiancé(e) instructions on what to do when he/she enters the United States. You must get married within 90 days of your fiancé(e)’s entry into the United States.

3. I know my fiance was told very clearly at the interview and again when he submitted his passport that he must marry within 90 days.

4. At the POE my fiance was told his K-1 was not valid for another entry, a line was drawn across it, and he was told that if we did not marry within 90 days he had to leave the country.

[klicristina 0]

Guys,

I don't know whether such a law exists for a K1 visa to adjust status outside the 90 day window by filing conjointly a I-485 and I-130 based on my wife being my immediate relative. I have asked and no one has directed me to an official website or some written law that states this option in writing. I consulted with 6 lawyers and none have even mentioned that this option is possible. I hope that my luck is not this bad. Some one refer me to www.visapro.com but my lawyer told me that the website is incorrect. So I am back to square one again. I would add that if this option is available, I would believe that the judge would have given me this opportunity to file. At the very least, the judge would have told us what we should have filed 485 and 130 together. In fact, I had already filed the I-130 3 months ahead of the removal hearing and the judge was awared of this. Maybe, I was barred from filing because my wife was in removal procedure. And another thing about the judge's comment about 180 day, I don't think that a judge with 30+ years on the bench would not know that I-94 for a K1 is valid for only 90 days. You tell me.

The essence of my wife's case is a human error by CBP at the airport on the I-94 because it drives everything in the case. It is not a moot point just because my wife had left the country because the I-94 could trigger a ban depending on what date you go by. The 15 month date writtened on my wife's I-94 or the 3 month date used by USCIS. Yes, we can get waiver, but who want to go through that if they don't have to. I personally agreed with the judge that my wife should not be accountable for a mistake made by the CBP. If the interviewer disagrees, then we have to cross that bridge when we get there. Until then, I am seeking your opinion and comment revelant to my situation. I don't that there have ever been a case like my wife's.

[Stephen + Elisha 92]

Hi Guys,

I want to post a question to everyone. We now know that the CBP at the airport made a human error by writing the wrong date on my wife's I-94, giving her 1 year and 3 months.

This is unfortunate, but even when the government makes mistakes, you are responsible for knowing the law and following it. The old axiom "Ignorance of the law does not excuse" is absolutely true.

In the USCIS system, the date is 3 months.

If this is in fact the case, you will have to file for a waiver (I-601) as well as for permission to reapply for entry after removal (I-212).

Why should my wife suffer the consequences for this mistake? My wife didnt know what an I-94 was and neither did I. Is it reasonable to expect my wife to know that the I-94 should be only for 3 months?

Once again, ignorance of the law does not excuse.

My argument is this. Why the law doesn't state this fact explically? Do you feel that it is fair? Maybe the K-1 law does state the expiration of the I-94 clearly in the law book somewhere.

The law does state it explicitly. belinda quoted the State Department Foreign Affairs Manual, which in turn was quoting Immigration and Nationality Act (INA) 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)) and INA 214(d) (8 U.S.C. 1184(d)), the statutory basis for the K visa. Likewise, the DS-156K that your wife (then-fiancee) signed before the consular officer at her visa interview stated: "I hereby certify that I am legally free to marry and intend to marry (your name), a U.S. citizen, within 90 days of my admission into the United States."

Not to be harsh, but all your problems stem from your failure to inform yourselves of the applicable laws and regulations at every step of the process. You failed to marry within 90 days as required by your wife's visa. By doing so, she lost the basis upon which to file for adjustment of status. Consequently, when she filed the I-485, she had no basis on which to adjust. You could have remedied this at that point by filing an I-130 at the same time to provide a basis upon which to adjust status, but you did not. Hence, the I-485 application was denied in accordance with the law and she was placed into removal proceedings, at which point you could no longer remedy the series of mistakes by filing an I-130 and I-485. The time to file the I-130 was at the same time as the first I-485, not after that I-485 was denied and she was placed into removal proceedings. Once those proceedings began, it was too late.

Many mistakes were made. The government is not blameless here, but neither are you, and ultimately the responsibility rests upon you to know the law and comply with its requirements. What's done is done, though; what remains is for you to deal with the consequences. And those consequences are that your wife will be denied at the interview pending approval of an I-212 and (quite likely) an I-601 waiver. I hope you have a good lawyer who specializes in family-based (not employment-based) immigration. Good luck to you.

Edited October 30, 2009 by Stephen + Elisha

[payxibka 10,044]

Maybe, I was barred from filing because my wife was in removal procedure.

Not maybe... a newly filed or pending I-130 while an alien is in removal procedings cannot cure the removal situation. This is FACT....

FWIW, laws and procedures are written typically to define what you CANNOT do.... You will not find a law/rule allowing a K-1 after 90 days to adjust via an I-130, what you would find a law/rule that would prohibit it.... no such one exists that I can find. Anecdotal evidence from a handful of VJ members over the past years would also indicate it can be done.

ETA:

website of a visa lawyer who says it can be done

http://www.igetyouin.com/en/?mid=K1_Visa

Another one:

http://immigration.lawyers.com/ask-a-lawye...psedU-6978.html

again:

http://www.immigration-lawyer-us.com/adjus...of_status.shtml

The Immigration and Nationality Act is a law that governs the admission of immigrants to the United States. For the part of the law concerning adjustment of status and the 245(i) provision, please see INA § 245. The specific eligibility requirements and procedures for applying to adjust status and the penalty provision are included in the Code of Federal Regulations [CFR] at 8 CFR § 245.1, 245.2 and 245.10.

8CFR 245.1 specifically indicates who is INELIGIBLE (Crewman, TWOV, non IR VWP, non IR's who failed to maintain status, EWI)

READ:

http://www.callyourlawyers.com/pdfcaselaw/8_CFR_245.pdf

Edited October 30, 2009 by payxibka

[Stephen + Elisha 92]

Take a look at the I-485 Application to Register Permanent Residence or to Adjust Status.

In Part 2, you check the "Application Type." This part states, "I am filing for an adjustment to permanent resident status because:"

Option C is the K-1 option. Read the text carefully: "I entered as a K-1 fiance(e) of a U.S. citizen whom I married within 90 days of entry, or I am the K-2 child of such a fiance(e). (Attach a copy of the fiance(e) petition approval notice and the marriage certificate.)" This option is clearly not available to a K-1 entrant who failed to marry within 90 days of entry. Based on what we know, the OP filed the I-485 on this basis and was correctly denied and placed into removal proceedings.

Your wife's I-485 application should have utilized Option A: "An immigrant petition giving me an immediately available immigrant visa number that has been approved. (Attach a copy of the approval notice, or a relative, special immigrant juvenile, or special immigrant military visa petition filed with this application that will give you an immediately available visa number, if approved." The I-485 should have been filed on this basis, and with an I-130 Petition for Alien Relative, in order to successfully adjust status.

[emt103c 10]

OP--Please contact an attorney for a second opinion, try one of these if your attorney cannot tell you for sure if you'll need a waiver. Multiple professional opinions are a good thing

http://www.humanrightsattorney.com/

http://www.scottimmigration.net

If you need a waiver, you do not want to wait to start preparing the 601 package until after the interview. It takes MONTHS to prepare a good waiver package.

[Darnell 8,478]

We are soooooo confused and so lost! We will talk to some more lawyers and we will post any updates.

I had alluded to 'what the judge said' and your wife's departure date.

Since she left prior to 'that date' - she wasn't officially deported.

Sure - she had a deportation hearing !!

But she was not deported. Since she wasn't deported, there's no ban to worry about. Heck, the judge handled IT ALL in his judgement issued to her (Thanks for posting that, btw - helped me think about what's going on ).

Instead, she left voluntarily. (Voluntary Departure )

I think you have SOLID EVIDENCE to present, if needed, at the interview. Bring it all - h3ll, get the judge's cell number before you leave - the IO can call him if it's not clear ..

and I THINK SHE'LL BE FINE.

Edited October 31, 2009 by Darnell