Opinions on possibility of denial?

[LoveInBrazil1109 0]

Hi VJ friends!

My wife and I recently received an interview date at the embassy in Rio, and we are very excited to possibly be nearing the end of this long process. However, there is a very big question mark hanging over our heads that we're just not sure about.

As I've mentioned in previous posts, my wife was here in the US, unlawfully, for more than a year. She left voluntarily, about 6 years ago, and moved back to Brazil with her American born son. While she was here, her previous husband, who was here legally on a business visa, and she ran a successful business. While doing so, she even paid taxes using her ITIN number that she was issued. She has no criminal record in Brazil, or the US. She has no outstanding medical conditions that would prevent her from obtaining a visa, and I earn more than enough income to support both her and my stepson. Essentially, the only issue that could prevent her being issued a visa is her previous unlawful entry.

We understand that her being here unlawfully for more than a year can result in a 10 year ban from receiving a visa, and that should that happen we would need to submit an I-601 waiver request which will inevitably lengthen the process. However, through all of my reading regarding the law, and our situation, it's never been made clear if this is a hard and fast rule, or if it is up to the interviewer as to whether or not they choose to enforce it. My hopes are that this decision is left to the judgement of the Consul or interviewer, and that they will take into consideration all of her positive qualities, which far outweigh the mistake she made when she was very young, and still grant her visa.

So, we are trying to mentally prepare ourselves for the "worst case scenario", but I'm curious to hear opinions from other members that may have gone through a similar situation. I'm also interested to hear input from anyone that knows how this law can or cannot be interpreted or enforced.

Thanks in advance for any input you'd like to share, and thanks for all of the help and information provided on this site that has helped us get this far in this tedious process.

[NigeriaorBust 4,087]

Waivers are more than simply filling out a form, there is a lot of documentation to go with it. When she gave birth , who paid for the bill ? If the taxpayers did that will be a negative ( and most likely you will have to repay )

[Unshakable Faith 493]

To my knowledge, it is a hard and fast rule. In preparing I 601 waiver packet, that is where you will discuss the favorable qualities vs her overstay ban.

[mrskvelasco 30]

Hard and fast rule is my understanding also. The discretionary judgment regarding HER favorable qualities and YOUR hardships are based on the waiver. I would start preparing your I-601 packet now, so you can submit it ASAP after her interview.

[Transborderwife 4,666]

Waivers are more than simply filling out a form, there is a lot of documentation to go with it. When she gave birth , who paid for the bill ? If the taxpayers did that will be a negative ( and most likely you will have to repay )

Says who?

[NikLR 13,220]

~~moved to waivers and AP as OP is asking questions about a I-601 waiver not the IR1/CR1 process ~~

[LoveInBrazil1109 0]

Thank you for the responses everyone.

In the back of my mind I think I always knew the I-601 would be a requirement, but I just didn't want to believe it. I'm going to begin preparing the I-601 package in the next few days, and just hope for the best during the interview.

[Jawaree 717]

The package needs a brief, also they are interested ONLY in petitioners hardship

not the applicant (your wife) they want to hear why you cannot move to her country

to live with her & why she should be allowed to love I the US...Every argument must

be backed up with proof, regular depression claim does not give one points, they

must have been on prior depression meds & treatments B4 such claim

[jan22 2,898]

FYI, this is more than a "hard and fast rule"....it is a law (Section 212(a)(9) of the Immigration and Nationality Act). So, a consular officer has no discretion. As others have indicated, the factors you raised can be included in the waiver documentation, but the most important part of the waiver application will be a description of the hardship that you (the US citizen) will face if the visa is not granted.

[Boiler 43,430]

Agree it is not a discretionary issue, she either has a ban or she does not.

You suggested she entered illegally, or did she overstay? If she overstayed exactly how long did she overstay, may matter.

Also do you fully understand what a I601 requires?

[Unshakable Faith 493]

The package needs a brief, also they are interested ONLY in petitioners hardship

not the applicant (your wife) they want to hear why you cannot move to her country

to live with her & why she should be allowed to love I the US...Every argument must

be backed up with proof, regular depression claim does not give one points, they

must have been on prior depression meds & treatments B4 such claim

Not necessarily true. There's nowhere that says the depression must have been pre-diagnosed and treated. I realize that would be extremely helpful if it was, but I've never seen anywhere that it was a must. Could point me to evidence of your claim? Edited January 7, 2016 by FN&KO

[blondedoc 35]

Honestly?

You both are in a better situation than mine which is almost the same. The difference is that I never overstayed and I just need the I-212. Solo I-212 are horrible... No one knows what to do with that and during the interview, the interviewer can even suddenly decide that I´ll need an I-601...

At least you both know that it´s necessary already and I can say that do that I-601 with a good lawyer it will be the best thing to do. The average of success is 60% (I read some articles from some lawyers about it). Don´t give up and keep you both strong! Ah, and during the interview... Never lie, even that you know that you have to say something that is unlawfull.

Good luck for you guys! And I hope you both can be together soon!

[madtownguy 164]

I think you will be fine. Her going back was a good thing. I'm assuming she came here legally and just over stayed. I doubt they will go into who paid for the child and stuff like that. They might make her wait as a government form of time out, but she's already been gone for 6 years so I doubt it. There could be a lot of stuff that could come out, maybe even things you don't know about. She may have used a fake SSN, latina's aren't necessarily the most lay everything on the table people. But if it's a true relationship I think you will be ok. I suggest a lot of interaction with her child like you are the father at the interview. My ex and I fought at ours but the kids sat on my lap, it went smooth and she broke a lot of rules while here illegally. Good luck!

[Harmonia 211]

The 10 year ban is NOT discretionary. She will get the ban automatically, and you'll have to do a 601 waiver packet explaining why you will have "extreme hardship" if the ban isn't waived. You should join immigrate2us.net because that forum is primarily for people with various bans. You'll get more info there.

It is absolutely not true that she will have to "pay back" a hospital. That's a preposterous statement with so many incorrect assumptions. Worry about the waiver, not that statement.

[Jawaree 717]

Not necessarily true. There's nowhere that says the depression must have been pre-diagnosed and treated. I realize that would be extremely helpful if it was, but I've never seen anywhere that it was a must. Could point me to evidence of your claim?

While an over-stay is very doable with a strong package, if one research they'll find USCIS states complaints of regular depression does

not count, after all everyone is depressed away from their spouse, they can mention it in their statement but its no added points

even atty Laurel Scott have posted time & time again on her web site, claiming depression or going for a single psychological visit

or evaluation does not give merits to a package...The attys should know