I-485 Denied.

[slangofoil 50]

I have been advised by an attorney to have my I-130 transfered to the London consulate and file a I-160 to waive the 10yr ban. She also said that now I already have the 10yr ban I do not need to hurry to leave the country as a further overstay will not add to the penalty, I should stay here until the ban is waived and then go back to the UK to complete the CR-1 process.

Any comments on this advice?

Thankyou

I thought you had to have a visa interview and be denied before you can file the waiver? That means you'd have to go back to the UK.

[thatbritishlass 2]

I have been advised by an attorney to have my I-130 transfered to the London consulate and file a I-160 to waive the 10yr ban. She also said that now I already have the 10yr ban I do not need to hurry to leave the country as a further overstay will not add to the penalty, I should stay here until the ban is waived and then go back to the UK to complete the CR-1 process.

Any comments on this advice?

Thankyou

Personally, if it was me, I'd leave as soon as possible. Better to only have one waiver to deal with than have the spectre of deportation hanging over your head as well as the 10-year ban. You will be separated yes, but if you do not proceed carefully now you could be separated for a lot longer.

I am surprised that your attorney is suggesting you continue to break the law by remaining in the country longer than necessary - even if you haven't been ordered deported you are still taking a big risk by doing that. Do your homework on that lawyer!

Edited January 29, 2011 by Miss Jess

[JimVaPhuong 4,863]

I thought you had to have a visa interview and be denied before you can file the waiver? That means you'd have to go back to the UK.

An I-601 can be filed "in-country", which means while the alien is in the United States. This is usually done when the alien is filing for an immigration benefit (like a green card) and has an inadmissibility to overcome. I've never heard of an I-601 being filed in-country when it's not in conjunction with an immigration benefit application. I've also never heard of an I-601 being filed preemptively in order to avoid having to file the waiver at a US consulate abroad. Further, I think it's possible that USCIS would consider the I-601 waiver application to be a form of appeal by the alien, and would reject it on the basis that a VWP entrant cannot make such an appeal.

[slangofoil 50]

An I-601 can be filed "in-country", which means while the alien is in the United States. This is usually done when the alien is filing for an immigration benefit (like a green card) and has an inadmissibility to overcome. I've never heard of an I-601 being filed in-country when it's not in conjunction with an immigration benefit application. I've also never heard of an I-601 being filed preemptively in order to avoid having to file the waiver at a US consulate abroad. Further, I think it's possible that USCIS would consider the I-601 waiver application to be a form of appeal by the alien, and would reject it on the basis that a VWP entrant cannot make such an appeal.

So....I was right? My comment was based on them planning to transfer the I-130 to London.

[JimVaPhuong 4,863]

So....I was right? My comment was based on them planning to transfer the I-130 to London.

Yes, but your answer was not complete as there is an exception to what you stated, and my answer was based partly on conjecture and not hard knowledge.

If an applicant shows up at a visa interview at a US consulate, and that applicant has an inadmissibility to overcome, then the visa will be denied on that basis. If the inadmissibility qualifies for an I-601 waiver, then the immigrant can file the I-601 waiver application immediately after the visa has been denied.

An I-601 waiver application can also be filed directly with USCIS while the immigrant is in the US (this is the exception you left out). Once the inadmissibility has been waived, then the waiver usually lasts forever, meaning they can't dredge up that inadmissibility in the future and use it as a reason to deny an immigration benefit. However, there is an important exception to this. If the waiver is obtained in conjunction with an application for certain immigration benefits, like an adjustment of status, and the immigration benefit is denied, then the waiver is immediately revoked, and the inadmissibility is reinstated.

What's not clear to me is whether an in-country I-601 can be filed if it's not filed in conjunction with an application for an immigration benefit. This would sort of be a preemptive waiver application. I've never heard of this being done, and I can't find anything in immigration law that either specifically allows or disallows it.

[Rebecca Jo 1,962]

My understanding is any waiver has a better chance of success when filed abroad.

[Used to be broken 143]

Yes, but your answer was not complete as there is an exception to what you stated, and my answer was based partly on conjecture and not hard knowledge.

If an applicant shows up at a visa interview at a US consulate, and that applicant has an inadmissibility to overcome, then the visa will be denied on that basis. If the inadmissibility qualifies for an I-601 waiver, then the immigrant can file the I-601 waiver application immediately after the visa has been denied.

An I-601 waiver application can also be filed directly with USCIS while the immigrant is in the US (this is the exception you left out). Once the inadmissibility has been waived, then the waiver usually lasts forever, meaning they can't dredge up that inadmissibility in the future and use it as a reason to deny an immigration benefit. However, there is an important exception to this. If the waiver is obtained in conjunction with an application for certain immigration benefits, like an adjustment of status, and the immigration benefit is denied, then the waiver is immediately revoked, and the inadmissibility is reinstated.

What's not clear to me is whether an in-country I-601 can be filed if it's not filed in conjunction with an application for an immigration benefit. This would sort of be a preemptive waiver application. I've never heard of this being done, and I can't find anything in immigration law that either specifically allows or disallows it.

That is an interesting comment , I believe USCIS was asked something similar in the Oct 2010 Ombudsman discussion, why can't i601 and I130 be simultaneously filed while the beneficiary is still in the states. The answer that immediately comes to mind is "line jumping". First they enter on tourist visa, overstay and then get the benefit of adjudication stateside which is much quicker than some foreign consulates which are taking up to 12 months to adjudicate.

[Harpa Timsah 13,258]

I bet the OP just made an error in describing the situation. S/he also said I-160 or something so it seems to me that s/he doesn't understand the form, or that you go to the interview abroad, get denied, then file waiver... all from abroad. I think this discussion is probably needless speculation based on a simple error.

[amykathleen2005 441]

I would leave of your own accord now then be escorted onto a plane later by ICE.

[JimVaPhuong 4,863]

That is an interesting comment , I believe USCIS was asked something similar in the Oct 2010 Ombudsman discussion, why can't i601 and I130 be simultaneously filed while the beneficiary is still in the states. The answer that immediately comes to mind is "line jumping". First they enter on tourist visa, overstay and then get the benefit of adjudication stateside which is much quicker than some foreign consulates which are taking up to 12 months to adjudicate.

Yeah, well, the same argument could be made for anyone who adjusts status in the US after entering with a non-immigrant visa or entry pass. Isn't that also a form of "line jumping"?

[zips 0]

I'm a bit confused about something, why couldn't you have married in the US and then gone home to complete the CR1 filing? Why go the fiance route first? Sorry if that's a silly question.

We were told by USCIS that I-129F is the correct route to take. We would still have to be apart even if we did the CR1 wouldn't we? I wish there was some way that families could stay together during the visa process . . . it's like they are trying to set our relationships up to fail by keeping us apart.

[MrsP2010 20]

OP's friend here. Her last POE was on VWP over a year ago, she's overstayed long enough that when she leaves the US she will get the 10 year ban, right? I think her question was, is there any way she can speed up the ban waiver paperwork by starting the filing now? Or does she have to wait until the ban has been actioned and her CR-1 is rejected in the UK before she can have her USC hubby file the ban petition paperwork?

We're trying to think of the safest and most likely way we can get her back to her husband, legally. She's an absolute mess at the moment, it's hard to comprehend that a simple misunderstanding of the filing timeline could lead to her potentially moving back to the UK without him, indefinitely.

[JimVaPhuong 4,863]

OP's friend here. Her last POE was on VWP over a year ago, she's overstayed long enough that when she leaves the US she will get the 10 year ban, right? I think her question was, is there any way she can speed up the ban waiver paperwork by starting the filing now? Or does she have to wait until the ban has been actioned and her CR-1 is rejected in the UK before she can have her USC hubby file the ban petition paperwork?

We're trying to think of the safest and most likely way we can get her back to her husband, legally. She's an absolute mess at the moment, it's hard to comprehend that a simple misunderstanding of the filing timeline could lead to her potentially moving back to the UK without him, indefinitely.

I understand the question about filing for the waiver in advance. What I don't know is the proper answer. I've honestly never heard of an I-601 waiver being filed in-country other than when it's submitted with an application for an immigration benefit. I would honestly be very surprised if it was accepted, much less approved. She's essentially asking to be forgiven for something that she hasn't stopped doing yet, which is being present unlawfully in the United States. And rather than asking for this waiver in conjunction with a request for an immigration benefit, she's asking for it to preempt the ban she's going to get when she leaves. I just can't wrap my head around how this would be possible. This is like stopping in the middle of the commission of a crime to call the governor and ask for a pardon.

An even more difficult question is the fact that a VWP entrant has no right to appeal or review. The reason her AOS was denied was because she became immediately deportable when she overstayed her VWP, and her AOS essentially constituted a request for a stay of removal - a request a VWP entrant has waived the right to make. I can't see how they'd deny the AOS on the basis that it constitutes a form of appeal and then NOT deny an I-601 waiver request on the same basis. You might be able to make a cogent argument that applying for AOS doesn't constitute any sort of appeal (though 7 Federal Circuit Courts of Appeal would disagree with you), but you'd be hard pressed to argue that an I-601 waiver request is not a form of appeal.

She said her attorney told her that she'd already past the 1 year overstay mark. This means she's got the 10 year ban. As her attorney told her, she's not going to incur a larger penalty by continuing to overstay. The only risk she takes in filing an I-601 waiver request is that the decision might be delivered by a couple of ICE officers with a pair of handcuffs. She's already gotten smacked down once by USCIS for trying to "speed up the process". I wouldn't be at all surprised if they smacked her down harder next time. There would be no deportation hearing. If an immigration officer signs a deportation order then she's gone.

Understand that what she did is not simply a matter of missing a filing deadline. It has always been the policy of USCIS that adjustment of status for an immediate relative of a US citizen after entering as a non-immigrant was an exception to the immigrant visa process, and not an alternative to it. She took a risk by trying to jump in front of the immigration line and she got caught. She could have still been denied if she'd filed for AOS before her VWP stay expired, and she would be in exactly the same boat she's in now, albeit maybe with not quite as much overstay.

[cheekymonkey 0]

I have spoken to several attorneys now and have been given different advice by each. How am I supposed to know the right thing to do when people who have been handling immigration cases for 20yrs dont know what to do.

Putting together the different pieces of advice I have been given it seems this is my process.

Transfer my I-130 to the London consulate by either getting an info-pass and requesting to have it transfered or by filing a I-824 (This could take 4-6 months to transfer)

Whilst waiting for that to transfer I stay in the country and YES I will be risking deportation but no deportation notice has been issued so as long as I keep a low profile it is unlikely anyone will be looking for me (or so I am told) at least I get to be with my husband.

During this time we get a very strong case together to waive the ban. (This is not filed yet we just get everything ready)

When my I-130 has been processed in London I return to the UK, file my CR1 (not sure if I can file this from US before I leave or if I need to be in the country to do it?) Have a medical and interview

CR-1 will be denied because of my 10yr ban due to overstay so I file the I-601 which is already prepared.

(Fingers crossed) The ban is overturned, I receive my green card and can return to the US to live a happy life with my hubby

From the scattered bits of information I have gathered this seems like the most logical way of overcoming this huge mess we have got ourselves into. Other advice has included refiling my I-485 in LA as they are not denying AOS due to overstay. This doesn't seem to make sense to me but was suggested by a legal professional.

I have also been told not to leave the country yet as San Diego may be getting guidance nationally about denying overstays so if something changes and I have left then I will not benefit from these changes. Obviously I am not going to sit waiting with my fingers crossed for a change in the system but I was wondering if anyone has heard anything about these policy changes?

[JimVaPhuong 4,863]

I have spoken to several attorneys now and have been given different advice by each. How am I supposed to know the right thing to do when people who have been handling immigration cases for 20yrs dont know what to do.

Putting together the different pieces of advice I have been given it seems this is my process.

Transfer my I-130 to the London consulate by either getting an info-pass and requesting to have it transfered or by filing a I-824 (This could take 4-6 months to transfer)

Whilst waiting for that to transfer I stay in the country and YES I will be risking deportation but no deportation notice has been issued so as long as I keep a low profile it is unlikely anyone will be looking for me (or so I am told) at least I get to be with my husband.

During this time we get a very strong case together to waive the ban. (This is not filed yet we just get everything ready)

When my I-130 has been processed in London I return to the UK, file my CR1 (not sure if I can file this from US before I leave or if I need to be in the country to do it?) Have a medical and interview

CR-1 will be denied because of my 10yr ban due to overstay so I file the I-601 which is already prepared.

(Fingers crossed) The ban is overturned, I receive my green card and can return to the US to live a happy life with my hubby

From the scattered bits of information I have gathered this seems like the most logical way of overcoming this huge mess we have got ourselves into. Other advice has included refiling my I-485 in LA as they are not denying AOS due to overstay. This doesn't seem to make sense to me but was suggested by a legal professional.

I have also been told not to leave the country yet as San Diego may be getting guidance nationally about denying overstays so if something changes and I have left then I will not benefit from these changes. Obviously I am not going to sit waiting with my fingers crossed for a change in the system but I was wondering if anyone has heard anything about these policy changes?

I think you've got the right plan.

If USCIS decided to deport you then you wouldn't receive any notice. This is because there is no removal process for you - you waived that when you used the VWP. You would go straight to deportation, which means ICE would take you into custody, interview you once to determine if you want to apply for asylum or refugee status (they have to offer this to everyone before deportation), and then put you on a plane back to your last country of residence.

It's not surprising that you're getting mixed opinions from different attorneys. You'd get varied opinions with any immigration matter, but this one is particularly confusing for attorneys because it's a drastic change from what USCIS used to do, and the policy changes from one field office to another. I would be stunned if going to a different field office now would change anything. You've already been denied once. There's no way another field office would not consider another petition to be a form of appeal.

Like you, I am also expecting a national policy directive to be issued by the director of USCIS. However, I seriously doubt it's going to reverse what the San Diego field office has been doing. If anything, I think it's going to establish that ALL field offices will have to deny AOS for VWP overstays. There have been seven district appeals courts that have agreed with this policy, and not a single one that has disagreed. Even if a case made it to the Supreme Court I doubt they'd reverse the opinions of seven district courts.