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Visa Waiver Program Deportation Ban

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My husband is an Italian, and he came to the US back on February 2009 under a I-94 Visa Waiver Program, and he overstayed for almost 4 years. I am an US citizen, and we recently got married on September 2012 and filed AOS with I-130 and I-485 concurrently to USCIS on 12/12/12. We received I-797 notice of action from USCIS to do biometrics on 1/9/13. However, my husband got detained by ICE on 12/18/12. The deportation officer denied his rights to see a judge or get a bond and executed a removal proceeding. He is facing deportation by anytime from 1/10 -15. The deportation officer said that he will not have a bar for 10 years and only have a 5 years bar for using the visa waiver program. They told him that he can reapply a standard visa after he is deported back to Italy. Please advise if this is true or not as I have researched many cases that once you are deported, the bar maybe anytime between 3 years to 10 years based on how many days that you overstayed. Please let me know if there is any possibility to stop my husband from deportation based on the fact that we are in AOS pending status. Please advise! Thank you.

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**** Moving from Student Visa to Waivers forum as question is about overstay ban ****


Bye: Penguin

Me: Irish/ Swiss citizen, and now naturalised US citizen. Husband: USC; twin babies born Feb 08 in Ireland and a daughter in Feb 2010 in Arkansas who are all joint Irish/ USC. Did DCF (IR1) in 6 weeks via the Dublin, Ireland embassy and now living in Arkansas.

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How did ICE get involved?

Did he commit a crime?

Or did you sending in the paperwork make ICE come pick him up?


May 24, 2011 NOA1

Sept 11, 2011 NOA2-took 19 days to get case number

Sept 30, 2011 NVC number and IIN received Friday-gotta wait till Monday

Oct 13, 2011 Case Completed- 13 days from receiving case number Took 32 days from NOA2

Nov 30, 2011 Notified of Interview date

January 19, 2012 Interview- 240 days from NOA1

INTERVIEW RESULTS-APPROVED WITH 14 WEEKS AP--but he got his visa in 56 days!!!!!!

PLEASE EDIT YOUR TIMELINE IN YOUR PROFILE SO OTHERS CAN LEARN HOW LONG EACH STEP TAKES IN THIS PROCESS

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My husband is an Italian, and he came to the US back on February 2009 under a I-94 Visa Waiver Program, and he overstayed for almost 4 years. I am an US citizen, and we recently got married on September 2012 and filed AOS with I-130 and I-485 concurrently to USCIS on 12/12/12. We received I-797 notice of action from USCIS to do biometrics on 1/9/13. However, my husband got detained by ICE on 12/18/12. The deportation officer denied his rights to see a judge or get a bond and executed a removal proceeding. He is facing deportation by anytime from 1/10 -15. The deportation officer said that he will not have a bar for 10 years and only have a 5 years bar for using the visa waiver program. They told him that he can reapply a standard visa after he is deported back to Italy. Please advise if this is true or not as I have researched many cases that once you are deported, the bar maybe anytime between 3 years to 10 years based on how many days that you overstayed. Please let me know if there is any possibility to stop my husband from deportation based on the fact that we are in AOS pending status. Please advise! Thank you.

He should get at least a 10 year ban, either for the overstay or the deportation or both...what prevented his return? And also note that while he can reapply, reapplying is NOT the same as being granted a visa (and certainly a tourist visa is out of the question)...sounds like you'll be required to eventually file an I-601 and an I-212, though how the both of you can make a case for 'extreme hardship' given his home country is Italy should be amusing.

Since he entered on the VWP (note the P stands for 'privilege') he waived his right to see an immigration judge...now before we hear how 'unfair' this is, had he returned to Italy at the end of 90 days, he would not have this issue...and whose fault is it that he did not return? Not CBP's. Not the immigration judge's. Not mine. Nor our 'unfair' laws......nope, the person who has total responsibility for this situation is the one whose face appears in the mirror each time he stands in front of it.

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How did ICE get involved?

good luck


USCIS
August 12, 2008 - petition sent
August 16, 2008 - NOA-1
February 10, 2009 - NOA-2
178 DAYS FROM NOA-1


NVC
February 13, 2009 - NVC case number assigned
March 12, 2009 - Case Complete
25 DAY TRIP THROUGH NVC


Medical
May 4, 2009


Interview
May, 26, 2009


POE - June 20, 2009 Toronto - Atlanta, GA

Removal of Conditions
Filed - April 14, 2011
Biometrics - June 2, 2011 (early)
Approval - November 9, 2011
209 DAY TRIP TO REMOVE CONDITIONS

Citizenship

April 29, 2013 - NOA1 for petition received

September 10, 2013 Interview - decision could not be made.

April 15, 2014 APPROVED. Wait for oath ceremony

Waited...

September 29, 2015 - sent letter to senator.

October 16, 2015 - US Citizen

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It is my understanding that he should have a 10 year ban for the overstay, and a 5 year ban for the deportation. Those will be served together so really it is only 10 years but requires 2 waivers.

I don't know whether he'll be okay, depends on why he was detained. Usually with the VWP there is no appeal so his AOS pending status may be irrelevant. Can you please explain how ICE came to detain him?

Also, as others stated, he can apply for another visa but whether it would be approved is another matter. On the plus side, while his AOS will be cancelled, his I-130 will continue to be processed so he can apply for a CR-1 visa. However because of his deportation and overstay he will need the waivers I mentioned above. Whether they will be approved depends on a lot of factors but if they are, it will take many months and cost a lot of money.

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Find a GOOD lawyer to file CANCELLATION OF REMOVAL based that his removal would result in exceptional and extremely unusual hardship to you.Usually the Court grants if the grounds of removability is not based on criminal convictions. He has a relief available and filed with USCIS (adjustment of status) and that would allow you to remain in the U.S. despite his removability.Your husband has the right to go before an Immigration Judge.The Department of Homeland Security cannot deport him until he is first given a chance to present his case, but he has to ask for that.I suggest you find a good lawyer asap.

Edited by sandranj

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No suggestion that CoR would be viable.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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I believe one of the requirements to file for cancellation of removal is that you have to have resided in the US for at least ten years, which the OP's husband has not.


Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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Didn't find the answer you were looking for? Ask our VJ Immigration Lawyers.

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