I-130 after deportation

[utw 0]

Hello,

My girlfriend has been denied entrance to the USA on the grounds that she has applied for H1B while being in the country on B1 tourist visa. The H1B has been canceled by the employer a couple of months after filling, but somehow still got approved.

She was deported and banned for 5 years (apparently for non-immigrant visas only) while trying to enter the US from a trip abroad.

I am a recently naturalized US Citizen (naturalization approved in Dec 2011).

What would be the best course of action in this situation?

We were planning to get married in Russia in a month and then I would fill an I-130 for her.

However, I am concerned about point 6 of I-130 instructions:

You may not file for a person:

...if you married your husband or wife while your husband or wife was the subject of an exclusion, deportation, removal, or rescission proceeding regarding his or her right to be admitted into or remain in the United States, ..., unless:

You prove by clear and convincing evidence that the marriage is legally valid where it took place, and

that you and your husband or wife married in good faith and not for the purpose of procuring the admission of your husband or wife as an immigrant, and that no fee or any other consideration (other than appropriate attorney fees) was given for your filling of this petition...

Thanks in advance for any assistance or advise.

Edited April 9, 2012 by utw

[sheeshkabelle 153]

After you file the I-130 you will have to file Form I-601, Application for Waiver of Grounds of Inadmissibility from outside the United States.

[utw 0]

After you file the I-130 you will have to file Form I-601, Application for Waiver of Grounds of Inadmissibility from outside the United States.

The I-601 can be filed only after the I-130 will be denied, isn't it?

[sheeshkabelle 153]

Process Changes for Petitioners Residing Overseas: Forms I-130 and I-601

From what I've read you file the I-130 and she files the I-601 at the embassy in her country.

What happens if the visa applicant is not eligible for a visa due to ineligibility?

At the visa interview, the consular officer determines if the applicant is ineligible for a visa, determines if the law provides for a waiver and determines if the applicant is eligible for a waiver. For this reason, waivers cannot be submitted until the interview has taken place and the applicant has been denied. I-601 waivers filed at a consulate are adjudicated by the CIS 601 adjudicator abroad. If you know in advance that a waiver will be required, in the interest of time it’s best to have the waiver completely prepared and ready to submit immediately after the denial at the visa interview. Consular officers usually provide the waiver form to the applicant along with reason for denial and denial codes written in. Fingerprints need to be taken and the waiver fee needs to be paid. Then a complete waiver package can be submitted.

Edited April 9, 2012 by sheeshkabelle

[utw 0]

From what I've read you file the I-130 and she files the I-601 at the embassy in her country.

Thanks!

Edited April 9, 2012 by utw

[Laure&Colin 280]

Expect a very lenghty processing time for the I130. I have seen a couple members who petitioned for an alien spouse who was deported in the past, and their I130 took over a year to be adjudicated, sometimes the US citizen was interviewed in the US during processing.

Edited April 9, 2012 by Laure&Colin

[utw 0]

Thank you!

Would filing for K-1 visa be a better (faster) option then?

Will it require I-212 or I-601 to be filed with it?

Would it make sense to file I-212 now?

[Ryan H 3,790]

Moved from IR-1/CR-1 Process & Procedures to Waivers forum.

Edited April 10, 2012 by Ryan H

[Sandra G. 5,016]

She needs to submit two waivers, I-212 regarding her deportation and I-601 for unlawful presence.