Waiting over a year on our I-130 :(

[JMT1985 0]

Hi Unique case here. My wife and I (U.S. Citizen) were married in Guatemala Jan 2016

and moved back to California Feb 2016 on her tourist Visa. We told the CBP that

she intended to stay in the US as we adjusted her status. We submiited paperworkon March 27th

to start her I-130. Upon bad advice and lack of foresight

I had my wife travel back to Guatemala last June. Upon her arrival at the airport she was detained

for 72 hours and offered voluntary departure. They told us that it would not affect her place in line

however when I contacted the USCIS Nebraska center in Dec that her case needed additional

reviews. Without any updates my wife is seriously considering dropping out of the process all together...

Would greatly appreciate any advice, as all  Ive been told is that we just need to wait onthe I-130

and they almost always get approved

[kzielu 1,154]

2 minutes ago, JMT1985 said:

Hi Unique case here. My wife and I (U.S. Citizen) were married in Guatemala Jan 2016

and moved back to California Feb 2016 on her tourist Visa. We told the CBP that

she intended to stay in the US as we adjusted her status. We submiited paperworkon March 27th

to start her I-130. Upon bad advice and lack of foresight

I had my wife travel back to Guatemala last June. Upon her arrival at the airport she was detained

for 72 hours and offered voluntary departure. They told us that it would not affect her place in line

however when I contacted the USCIS Nebraska center in Dec that her case needed additional

reviews. Without any updates my wife is seriously considering dropping out of the process all together...

Would greatly appreciate any advice, as all  Ive been told is that we just need to wait onthe I-130

and they almost always get approved

Well, you need to wait on the I-130 and as long you have bona fide marriage, there's no reason for it to not get approved. The you will have to continue consular process that will result in her getting immigrant visa at the embassy in her home country (I assume that's where she is right now).

[JMT1985 0]

Yeah we sent in loads of documents and photos verifying our marriage yet we were

never asked to send in any other additional docs. Shes is in her home country currently.

[SabRob 154]

What kind of visa did you apply for? K3 or CR-1? K3 visas are pretty much obsolete and are rarely approved. Or did you file i-130 and i-485 concurrently? (for adjustment of status within the US) - because if that's what you did then when your wife left the US to go back to Guatemala then the process was dropped. 

 

Your case sounds a bit complicated and I think you should probably get a lawyer since she was detained and offered to withdraw her application for entering the US. While it might not affect her place in line if you did in fact file for a CR-1 visa, it might affect the outcome. 

[geowrian 22,344]

1 hour ago, SabRob said:

What kind of visa did you apply for? K3 or CR-1? K3 visas are pretty much obsolete and are rarely approved. Or did you file i-130 and i-485 concurrently? (for adjustment of status within the US) - because if that's what you did then when your wife left the US to go back to Guatemala then the process was dropped. 

 

Your case sounds a bit complicated and I think you should probably get a lawyer since she was detained and offered to withdraw her application for entering the US. While it might not affect her place in line if you did in fact file for a CR-1 visa, it might affect the outcome. 

K-3 is obsolete, but the I-130 that goes with it would proceed and it would turn into a CR-1 process. It wouldn't slow things down. Leaving the US when filed concurrently for I-130 + AOS would only abandon the I-485...the I-130 could proceed and she could apply for a CR-1 visa still once the I-130 is approved.

 

Being turned around (very likely for immigrant intent) generally won't affect the CR-1 visa timeline or outcome. If she only had the application withdrawn (no bar or expedited deportation involved), then it won't affect the CR-1 visa process at all.

[Penguin_ie 6,002]

***** Moving from Adjusting Status (as Op has abandoned that process) to CR-1 spousal visa which will now the the process used *****

[SabRob 154]

3 hours ago, geowrian said:

K-3 is obsolete, but the I-130 that goes with it would proceed and it would turn into a CR-1 process. It wouldn't slow things down. Leaving the US when filed concurrently for I-130 + AOS would only abandon the I-485...the I-130 could proceed and she could apply for a CR-1 visa still once the I-130 is approved.

 

Being turned around (very likely for immigrant intent) generally won't affect the CR-1 visa timeline or outcome. If she only had the application withdrawn (no bar or expedited deportation involved), then it won't affect the CR-1 visa process at all.

My process of thought was that if she did apply for AOS from the US while on her tourist visa she would have committed visa fraud. OP mentioned this: "We told the CBP that she intended to stay in the US as we adjusted her status." I don't think that any CBP officer in their right state of mind would have let someone on a tourist visa in so that they can file for a Green Card. Since she left the country, she was probably questioned about this upon her return. Now, visa fraud is a violation of USCIS laws and she can be deemed inadmissible into the US and be denied the right to a Green Card. There is a waiver available for this ground of inadmissibility, though, so if that's the case she can apply for one.

 

Now, my assumption that they filed for AOS on her tourist visa could be completely wrong, but that's what I made out of OP's post. Only he knows their current situation and it's always best to turn to legal advice instead of the internet. 

[geowrian 22,344]

23 minutes ago, SabRob said:

My process of thought was that if she did apply for AOS from the US while on her tourist visa she would have committed visa fraud. OP mentioned this: "We told the CBP that she intended to stay in the US as we adjusted her status." I don't think that any CBP officer in their right state of mind would have let someone on a tourist visa in so that they can file for a Green Card. Since she left the country, she was probably questioned about this upon her return. Now, visa fraud is a violation of USCIS laws and she can be deemed inadmissible into the US and be denied the right to a Green Card. There is a waiver available for this ground of inadmissibility, though, so if that's the case she can apply for one.

 

Now, my assumption that they filed for AOS on her tourist visa could be completely wrong, but that's what I made out of OP's post. Only he knows their current situation and it's always best to turn to legal advice instead of the internet. 

Filing for AOS from a tourist visa is not visa fraud, though. It is visa fraud to enter the US with the intent to file for AOS. However, once she was admitted to the US, it was determined that she did not have immigrant intent on that visit. That said, I do agree that immigrant intent was likely the reason for denial on her return visit...but if she was allowed to voluntary withdraw her application, then that means she shouldn't have gone through an expedited deportation or receive any bar.

 

Edit: I'm not saying either way if that should be the case...but as the law is written today, you can file for AOS once admitted to the US.

Edited April 16, 2017 by geowrian

[SabRob 154]

3 minutes ago, geowrian said:

Filing for AOS from a tourist visa is not visa fraud, though. It is visa fraud to enter the US with the intent to file for AOS. However, once she was admitted to the US, it was determined that she did not have immigrant intent on that visit. That said, I do agree that immigrant intent was likely the reason for denial on her return visit...but if she was allowed to voluntary withdraw her application, then that means she shouldn't have gone through an expedited deportation or receive any bar.

OP clearly stated that it was her intent to stay in the US as she adjusted her status. Plus, even if you're allowed to enter the US and immediately file for AOS, that is clearly visa fraud. 

[geowrian 22,344]

2 minutes ago, SabRob said:

OP clearly stated that it was her intent to stay in the US as she adjusted her status. Plus, even if you're allowed to enter the US and immediately file for AOS, that is clearly visa fraud. 

Agreed. But that doesn't matter to the law...she was admitted entry and therefore legally she did not have immigrant intent. Welcome to the wonderful world of immigration...

 

Edit: See Matter of Battista and Matter of Cavazos (aka the "Special Rule for IRs of a USC").

Edited April 16, 2017 by geowrian

[SabRob 154]

Just now, geowrian said:

Agreed. But that doesn't matter to the law...she was admitted entry and therefore legally she did not have immigrant intent. Welcome to the wonderful world of immigration...

For a person to be inadmissible for having procured entry, a visa, other documentation, or any other benefit under the INA by fraud, the officer must find all of the following elements:

 

•The person procured, or sought to procure, a benefit under U.S. immigration laws;

•The person made a false representation;

•The false representation was willfully made;

•The false representation was material; 

•The false representation was made to a U.S. government official, generally an immigration or consular officer; ^[7]

•The false representation was made with the intent to deceive a U.S. government official authorized to act upon the request (generally an immigration or consular officer); ^[8] and

•The U.S. government official believed and acted upon the false representation by granting the benefit. ^[9]

If all of the above elements are present, then the person is inadmissible for having procured an immigration benefit by fraud. Since the elements required for fraud also include the elements for willful misrepresentation, the person is also inadmissible for willful misrepresentation.

 

Found on https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartJ-Chapter2.html#S-B

 

It's still fraud even if the CBP officer believes you. 

 

 

[geowrian 22,344]

Just now, SabRob said:

It's still fraud even if the CBP officer believes you.

Except that case law has ruled otherwise in this matter. As far as the law is concerned, she entered without immigrant intent on that visit and later decided to adjust status.

[SabRob 154]

 

30 minutes ago, geowrian said:

Except that case law has ruled otherwise in this matter. As far as the law is concerned, she entered without immigrant intent on that visit and later decided to adjust status.

The 30/60 day rule is merely a guideline, it's not an ACTUAL rule. Every case is different and it's still up to USCIS to decide. 

[geowrian 22,344]

Just now, SabRob said:

The 30/60 day rule is merely a guideline, it's not an ACTUAL rule. Every case is different and it's still up to USCIS to decide. 

It's a DoS guideline, not USCIS. But as I noted above, Matter of Battista and Matter of Cavazos make this a moot point. You cannot have immigrant intent held against you because immigrant intent is determined at POE. That is law as written today. Legally, there was no visa fraud.

 

Anyway, this is now. What happened with AOS doesn't matter....the issue was the re-entry. Since the application was voluntarily withdrawn, barring evidence showing there was a bar or expedited deportation issued, she was only denied entry to the US. The I-485 will be abandoned, and the I-130 will continue. Once approved, she can file for a CR-1/IR-1 visa.

[NikLR 13,234]

Your wife did not file for the I-485 when she intended to adjust status?  Did she not have the I-131 (AP) approved before leaving?  If no to either of these, then indeed she abandoned her AOS or it was never started concurrently with the I-130 so you must continue with consular filing.  She will have a medical and interview in her home country and won't be moving to the USA until those two things happen.

 

If your I-130 is stalled you can do a service request by talking to a tier 2, or ISO (immigration services officer) at the USCIS.  I also suggest contacting the ombudsman and your congressman or senator to find out what's happening with the I-130.