Does he need a waiver??

[Chin_Moxam 0]

Hello all,

I am wondering if anyone can please offer me some insight to this issue. Currently my husband is about 2 months away from his interview in Jamaica our case is almost hopefully completed at NVC. The issue is I am wondering if he needs any waivers and which one. I spoke to a lawyer before I filed his I130 in May 2014, and I was told he doesn't need a lawyer as he was only unlawful for 107 days, BUT I don't know if I believe this. First off he was arrested 2 times in 2009 for being around person with weed. Never charged, never served time. AND in 2011 he was arrested for simple assault and for this he received 6 months probation. Now because his green card denied in March of 2012 he was given VD and he left 107 days later July 12, 2012. He was in ICE for a total of 13 months before he left. Mind you when he was arrested for the simple assault they took him straight to ICE even though his case was processing for his green card. Am confused, stressed and lost as this might prevent him from getting a visa at his interview. Any thoughts, advice, experiences to share???? Thank you!

[aleful 1,905]

hi

get a new a better lawyer. of course he needs a waiver

the illegal presence in the country starts sooner than the 107 days. he was here in the country since 2009 and he left in 2012, 3 years in the country or almost 3 years in country

if he entered the country with a tourist visa, the illegal presence started after 6 months of the date his stay ended. so he has over a year of illegal presence in the country, which triggered a 10 year ban when he left

get a good attorney and I hope he qualifies for the i601

count how many days was he illegally in the country since 2009

if he was over 6 months, he had a 3 year ban, more than a year, a 10 year ban

[Chin_Moxam 0]

Thanks for the response however I missed a few points. He has been in the country since 2002 legally, the 2009 incidents he was legal (temp green card), the 2011 incident he was legal (temp green card) he was denied March 2012 so he became unlawful that is only 107 days so that does not trigger any type of ban as that is less than 180 days. When he came in 2002 he overstayed his visa but got married in 2004 and became legal, he never had a problem until 2012 when he was given VD by the judge. He got divorced 2010 which messed his process up as he try to complete the process on his own. So from where I stand I am confused as to whether or not he might need a waiver. This is why the lawyer said he wouldn't need a waiver as he was not unlawful for 180 or more days. But with the arrests (which at the time I didn't mention to the lawyer) will he need a waiver?

[Mindy & Raju 11]

I understand how you feel! There is always a chance that even a lawyer can miss something because this process is so complicated (especially when you know you've left something out). I wish I could give you some expert advice or personal experience but I can only give you my best guess and maybe someone will come along and correct me. I think you should take the information you were given by the lawyer, as they are truly familiar with the world that we grasp at in the dark. I can find answers on Visa Journey that says I-212 is not needed for VD and somewhere there people will say you definitely need it. I think the lawyer is the one with the degree and the reputation at stake! Now I have a strange case and things that I feel will bring suspicion so I have done my fair share of soul searching and web searching. I have found, this day in age there is a need to be more humane and there is a spirit of reform. The consulate officer in the interview is going to adhere to the procedures and avoid unnecessary hardships, for you or the administration. Waivers are extremely difficult and are there as the last resort for the worst cases. They make these provisions, number of days, voluntary instead of removal, moral turpitude or no, etc. because they want the laws to truly protect effectively, not to cause unfair practices. I don't think you will be needing a waiver for the unlawful presence because it was under the days, not for the VD because it was followed correctly, and not for the crimes because they are not CIMT. Do you think they only let the perfect people into this country? That would be such a simple process! NO for ALL!!! They will know he is not one of the lucky ones, but he isn't the criminal they are looking for either. That is only my honest opinion. Good luck to you.

[Chin_Moxam 0]

Appreciate the feedback, at this point we will just wait and see what happens at the interview, because I am researching all waivers that would apply and I am confused as to where he would fall, they are so vague. It would be nice though for someone who has been through this to offer some insight as to what they have been through that would be beneficial to us.

[Jawaree 717]

OP he will need an I212 if he was deported (must) Permissuin to return

If he had a GC its an uphill battle, they'll decide at consulate if he

is eligible for (212H) relief..this is something former LPRs temp. or

otherwise have to jump hurdles to get. its the way the law is set up

READ FAM 40.21

Right now presence is not the main issue, its the assault. even though

no charges they will scrutinize.You will need disposition on all his

cases for interview, also they look at how long the crimes occurred. The 6

mths case is not gonna affect him, but it would have been better if he was

stra8 up illegal, for someone with 2 crimes its not a DIY project U will

need an atty and a strong package, they will issue him a 221G at the

consulate saying if he also needs an I601 (for crime)This kind of waivers can take

up to 15 mths and cost $585 each...Lizz Cannon an expert waiver atty does free

phone consults and will tell U the truth.

It will take time but seem doable with an atty...good luck

* Please note when I say 2 crimes I am telling U how USCIS sees things

they look at the time one could receive when adjudicating although they

did not get or do the time (unfair)

[Boiler 43,434]

no lawyer can give you accurate information without full details.

VD only makes sense if he had no status. If he had his GC removed due to his criminal past then yes there are issues.

[Chin_Moxam 0]

Thanks for the responses, I figured we should contact a lawyer sooner than later (lol the interview in about 2 months away so we are late already) so I did and will follow up with a few tomorrow. So far am hearing yes and no. May I have Liz cannon contact please I couldn't locate it.

Here is what I heard so far (lawyers): presences is not an issue as he left timely with the VD that was granted. The issues might obviously be the arrest. But am confused as to how those would be the issue ( i didn't get a response that make sense) he has documentation from the judges (signed) stating that the simple assault cannot be held against him for immigration purpose and he was held in ICE for 13 months pending the outcome of his green card which was denied March 2012, so if he was approved that conviction would have meant nothing. He was removed due to denial, (then he was given VD) and for his arrest, the first one the judge said to the officer "why did you lock him up? Fine him and let him go" the 2nd time there was going to be a lawsuit as it was false arrest and the officer lied the entire time. When it got to court the judge literally blast the cop and threw it out so no convictions there.

Yes!!!! He was arrested I get that! Technically two were false arrest and the simple assault was a conviction (it was actually two years probation not 6 months) and he had documents to show per the judge that it cannot be held against him. what the lawyer didn't clarify for me was, would there be a problem at the interview????? I will hear what the others say tomorrow. And I will update so if anyone else is going through this you will have an idea of what to do?

[Boiler 43,434]

Married in 2004 and adjusted, say 2005.

Then he had a temp GC in 2009 and 2011. Makes no sense.

Held by ICE, for 13 months, why? And then give VD?

Suggest you find out what happened.

[Chin_Moxam 0]

Exactly! This makes no sense! He was arrested in 2011 for the simple assault, they wouldn't give him bail, (assuming due to pending status adjustment, when he missed the appointment of course at that time bail is not an option until case was finalized) in turn he missed his appointment for adjustment (from temp to permanent green card)so they kept him until we found a different lawyer (other one quit because he was in jail and missed the appointment) then he got denied March 2012 then given VD May 2012. For about 9 months (before the denial) the judge kept saying "you all have nothing on this young man why is he still in here?" "Work it out and get him out, you all keeping coming to court unprepared" long story short! I assume it all boils down to a lawyer that wasn't the best, who wasn't successful getting his status adjusted so now we end up here!

Through fault of his own of course is why he missed his adjustment status, wrong place wrong time (simple assault) arrested and miss his appt which he would have never missed and has never missed in the past.

At the final hearing the judge still tried to save him as he was deemed in good moral standing but fell 6 mnths short of being in this country for 10 years. So he had to go.

[Jawaree 717]

6178066400 Lizz Cannon

USCIS/DOS goes by what one could have received

had one been convicted on something they were accused

of they treat probation like sentences, this falls

under the law congress passed in 1996 which caused many

LPRs with old & new cases, minor offenses to us but not

to USCIS to be deported after living in the USA for yrs.

Anything 6 mths and under,or if one is under age 18 falls

under fetty offence=exceptions,or 30 grams of weed... NVC

checklist will require all court docs, please talk to her

about the probation of 2 yrs. Was he deported or removed

if removed then a I212 is needed if VD then its not needed

best wishes

Edited December 21, 2014 by Jawaree

[raven52 233]

A good lawyer, and a "waiver" is a must! For success in getting you fiance here.,.,.,

[Chin_Moxam 0]

thank you Jawaree for the info; i am seeing glimmers of hope. Will update on progress as it becomes available.