I-130 Falsely denied (possibly)

[Militaryguy 2]

Hi,

 

Storytime. In 2012 my then fiance entered the US with a K1 visa, we got married within 90 days of her arrival and my two biological children followed with k2 visas thereafter. As a low ranking military member supporting a family of four, I was not completely ready to adjust status for all 3 of them right away. I was worried they would be out of status if I could not adjust status right away so I called USCIS for some answers. The agent told me that there is no defined time that a k1 visa spouse needs to oblige by to adjust status. None. Time passes, and suddenly im up for orders the following year to a foreign country, I have no family in the US and my wife cannot drive nor work yet with out her green card so they accompany me (under orders) to the foreign duty station. Before doing so I call the USCIS and they tell me they will treat it as abandonment of AOS. We are then advised to file for i130 when we get to the US embassy in the next foreign country. I file for the visa and my entire family gets approved. On the day we were told to pick up the visas at the embassy, the same consular officer who approved us now wants to deny my wife her visa at says she is banned for 10 years from the US. His reasoning was she stayed over the date on her arrival departure i94 card and was therefore illegal. I ask him where does this exist in writing, he could not provide any evidence. He then shuts his window and now im contemplating  leaving the military to be with my wife and children in her home country. I have called an immigration visa lawyer to help. Are we in the wrong? If not, what sources do I have to prove I am right? Thank you in advance.

[Mollie09 1,543]

8 minutes ago, Militaryguy said:

Hi,

 

Storytime. In 2012 my then fiance entered the US with a K1 visa, we got married within 90 days of her arrival and my two biological children followed with k2 visas thereafter. As a low ranking military member supporting a family of four, I was not completely ready to adjust status for all 3 of them right away. I was worried they would be out of status if I could not adjust status right away so I called USCIS for some answers. The agent told me that there is no defined time that a k1 visa spouse needs to oblige by to adjust status. None. Time passes, and suddenly im up for orders the following year to a foreign country, I have no family in the US and my wife cannot drive nor work yet with out her green card so they accompany me (under orders) to the foreign duty station. Before doing so I call the USCIS and they tell me they will treat it as abandonment of AOS. We are then advised to file for i130 when we get to the US embassy in the next foreign country. I file for the visa and my entire family gets approved. On the day we were told to pick up the visas at the embassy, the same consular officer who approved us now wants to deny my wife her visa at says she is banned for 10 years from the US. His reasoning was she stayed over the date on her arrival departure i94 card and was therefore illegal. I ask him where does this exist in writing, he could not provide any evidence. He then shuts his window and now im contemplating  leaving the military to be with my wife and children in her home country. I have called an immigration visa lawyer to help. Are we in the wrong? If not, what sources do I have to prove I am right? Thank you in advance.

You are in the wrong. The moment her 90 days expired after her K-1 entry she was out of status.

It would have been forgiven if you had adjusted before she left the country, but after she left that time counted against her as illegal presence. Go the waiver route, I'm surprised they didn't tell you that.

[Redheadguy03 505]

They're correct. You can basically wait forever to adjust, (because she's the immediate family member of a USC) however, once she left the country the overstay isn't forgiven anymore. 

 

So, leaving the country triggered the ban and you'd need a waiver now. 

[Boiler 45,665]

Agree, you screwed up. Anyway just need a waiver for the wife.

 

Why people delay AoS always confuses me, you knew it was part of the process.

[Militaryguy 2]

Where does it state this specifically? 

[Boiler 45,665]

The option to file a waiver should have been covered in the paperwork your wife was given when she was refused a visa.

[Militaryguy 2]

Sorry i meant to say where does it say she becomea an illegal when she leaves the us prior to aos? Also we did not leave the country due to convenience, we were ordered by the US government to relocate to another military base. Leaving my wife with no means of driving or working with two children was out of the question. Is there some kind of program that helps servicemembers families?

[Boiler 45,665]

Her K1 was good for 90 days, I assume you comfortably exceeded that, you mentioned the 90 days in your opening post.

 

JAG?

[Ben&Zian 4,398]

As stated by the others, once her I-94 expired she was out of status in the US. Once she left the country it triggered the ban.

Military orders to foreign country bases only matter when your spouse say has her green card, the orders will negate time out of country.

 

As for your wife, she had no actual status thus, she needs a waiver.

 

As an Army vet myself, like Boiler said, really all you can do at this point is go through JAG; but they will probably tell you same details, or they won't know and have you find an immigration attorney state side.

Edited December 10, 2017 by Ben&Zian

[JFH 12,190]

20 minutes ago, Militaryguy said:

Sorry i meant to say where does it say she becomea an illegal when she leaves the us prior to aos? Also we did not leave the country due to convenience, we were ordered by the US government to relocate to another military base. 

You were ordered by the government to leave. Your wife went by choice. 

 

It's all down to poor planning on your part. You started an immigration procedure you couldn't afford to complete. You must have known the costs of this when you started? A spouse visa would have been cheaper. But what's done is done. At least you have the waiver option. 

[Militaryguy 2]

Moving forward, our sofa status expires this week and i have to deploy as soon as i get to the US. My wife can not stay at the country we are currently in and must fly back to her home country. How will filing her waiver work in her home country?

[Crazy Cat 41,981]

I concur with above advice.  Seek the help of your base legal office, and apply for the wavier.  

[Boiler 45,665]

Waiver goes to the lockbox in the US.

[Hypnos 6,576]

INA 212 contains the statutory overstay bar information you're seeking. After at least 365 days of overstay/unlawful presence she is barred for 10 years. 

 

As stated above, she can file an I-601 seeking a waiver of that inadmissibility. 

 

And the waiver goes to a lockbox facility in the US, not directly to the embassy. Expect it to take ~6-12 months to be adjudicated. 

[Boiler 45,665]

Last time I looked they were showing 14 months.