Expedited Removal

[jmrr1974 0]

I am a resident. My wife was given expedited removal when she was caught at the border in 2012. Her 5 year ban will be over in 2017. I know that because I am LPR, she will have to wait 1-2 years for her priority date to be current. Can I file I-130 now so that the wait for priority date will happen at the same time as the wait for her 5 year ban? Thank you.

[Transborderwife 4,666]

No

[HFM181818 750]

why not? He can submit the petition...when her PD becomes current, if the 5 year ban has expired, no harm, no foul. If 5 years have not quite elapsed, she would have to wait the remaining time before being issued a visa...petition submission and visa approval are two entirely different processes....an individual can be inadmissible or ineligible and still have a qualifying relative file a petition for them.

[Transborderwife 4,666]

why not? He can submit the petition...when her PD becomes current, if the 5 year ban has expired, no harm, no foul. If 5 years have not quite elapsed, she would have to wait the remaining time before being issued a visa...petition submission and visa approval are two entirely different processes....an individual can be inadmissible or ineligible and still have a qualifying relative file a petition for them.

I was under the impression that you couldn't (or shouldn't) but I may be wrong.

[HFM181818 750]

USCIS, upon receipt of a petition, does NOT check on the status of the beneficiary in terms of being admissible or ineligible (except as to the relationship qualifying standards)....their job is to adjudicate the petition based on the category of visa (parent, spouse, child, fiancé) - the CO's job is to determine visa eligibility. Of course, the COs may discover that the beneficiary is not a bona fide relative - and that happens sometimes.

But after USCIS approves a petition (and the approval rate is about 99.9%!!!!), the COs are left to sort out a lot of other things, including admissibility and ineligibility of the applicant.

[aaron2020 11,651]

I was under the impression that you couldn't (or shouldn't) but I may be wrong.

"May" be wrong? Why can't people just admit when they are wrong so threads can have the correct information?

[Transborderwife 4,666]

"May" be wrong? Why can't people just admit when they are wrong so threads can have the correct information?

Sorry, I'm wrong.

[HFM181818 750]

most folks, not having done consular officer work, are unfamiliar with all of the machinery that whirls around in the petition/visa world.

In general, USCIS adjudicates petitions, at a very basic level, but petition approval is NOT the same as visa approval.

COs adjudicate visa applications, including those based on an approved petition. COs lack the authority to revoke a petition, but they can deny the visa application (though it becomes more complicated once that happens, in that the petition & application would be returned to, first the Kentucky Consular Center, with a cover letter describing the 'defects' (information that may not have been available to the 'stay-at-home-housewife' who 'adjudicated' the original petition (armed with a very simple 'checklist'...which mostly focuses on the application fee being included!!! [my own personal opinion...but the process is far from exacting]...the KCC reviews the petition/application and if they find enough evidence to ship it back to the embassy, they will; otherwise, they pass it on to the USCIS service center from whence it came...

For visa denials that were caused by an inadmissibility or ineligibility (but otherwise the relationship or work qualifications are OK), then the CO will inform the applicant that they need a waiver (I 601, in the case of a family based petition, no waiver if an employment based petition [as there is no qualifying relative who filed the petition, only a company] and possibly an I-212, sent to the port director from where the applicant was shipped home (either thru expedited removal or deportation....often applicants need both....but each are adjudicated by two separate entities...the I 601 by USCIS; the I-212 by DHS (in a broad sense)....the latter process can take forever and a day...

But most people confuse all of these possibilities and understandably so, since they have had almost no 'behind the window' experience with them.