Seeking Guidance / Advice

[TryingToGoHome 3]

Hello all, I'm new to the forum but have read threads here recently and in the past. I'll try to describe my situation as succinctly as possible:

 

- In 2010, my then-boyfriend (a Dutch citizen) came to the US to visit me (I'm a US citizen born and raised). He entered on the VWP with the intention of staying for 90 days and then going home. Instead, I proposed and we wound up getting married. Although it's not how one is typically supposed to do things, we subsequently filed an i-130 and i-485 simultaneously to adjust his status (we filed all of this before his 90-days under the VWP were up). All of that went just fine and in mid-2011 my husband was approved as a 2-year permanent resident (conditional green card).

 

- In mid-2013, we should have lifted the restrictions on his conditional green card. Unfortunately, we were in a rather dire financial situation at the time and couldn't afford the filing fee to lift restrictions. We filed to lift restrictions anyway, requesting a fee waiver, but USCIS denied the waiver due to insufficient proof of financial hardship. At that point, my husband's conditional residency expired and he became out-of-status.

 

- In July of last year (2017), we departed the US together in order to stay with his family in Europe for a period of time. My husband was never in any trouble, did not receive orders to the leave the country, and was never subject to deportation proceedings or anything of the sort. We just weren't able to afford our living expenses anymore, so instead of becoming homeless in the US, we decided to come to Europe to stay with his family while we recuperated financially.

 

Now, we'd like to return to the US, but from a legal perspective I believe my husband is subject to the 10-year bar on re-entry because he accrued 4 years of out-of-status presence from 2013 - 2017. An immigration lawyer I spoke with seems to concur that he would be subject to this bar, but the lawyer wanted over $10,000 to take the case and file the paperwork. That's money we don't have, and since I'm reasonably savvy and capable of following instructions (I did all the original paperwork for the i-130 and i-485 myself the first time around, with great success) we're going to file the paperwork ourselves again.

 

I believe we need to file the i-601 form requesting a waiver of my husband's 10-year bar on re-entry. All the cases online that I have come across, including the infographic / flowchart offered by USCIS on the i-601 page (https://www.uscis.gov/i-601), involve filing for the i-601 AFTER filing for a visa and receiving a denial from the consulate on grounds of inadmissibility. So for married couples such as us, that means filing the i-130 again, receiving approval, going through the consular interview and all of that, then receiving a denial and proceeding to file the i-601.

 

My guess is that most people do not realize or know that they (or their spouse) are subject to a bar on re-entry when they file for a visa to enter the US, which is why they go through the visa application process first and only after being denied do they realize they need to file the i-601. Since we are practically certain that my husband is subject to the 10-year bar, and thus needs the i-601 waiver in order to receive a new visa and return to the US, I don't see much point in doing the whole i-130 process first and waiting for denial before starting the i-601 filing process. It just seems kind of backward to file the i-130 without the i-601 in this case, especially since I'd like to minimize the total amount of time we have to wait.

 

This brings to my question, and the point I'm hoping to receive some guidance and/or confirmation of:

 

- Am I correct in thinking that we can file the i-601 and the i-130 simultaneously? My goal is to minimize total processing time, and therefore the amount of time that we have to wait, as we've already been outside the US for almost a year and I'm getting homesick + I miss my family terribly. Obviously the approval of the forms hinges on our ability to prove extreme hardship, etc., but assuming that approval is forthcoming it seems most logical to file both applications at the same time. Could someone please correct me if I am mistaken?

 

Thanks to everyone who's taken the time to read this and may respond. I'll update this post when the time comes in the hopes that others who may find themselves in a similar situation can find pertinent information that helps them. 

 

- TryingToGoHome

 

P.S. -- If there is anyone in a similar situation to ours, but you haven't left the US, be sure to check into the i-601A! That's the waiver you can file for from within the US. Don't make the mistake we did of leaving the US and then realizing you could have filed while you were still there.

Edited June 7, 2018 by TryingToGoHome

[payxibka 10,045]

My understanding is that the “bar” is not officially in place until a consulate officer makes that determination.  So it would be hard to file a waiver for something that doesn’t yet exist.  

[jkstark 97]

I don't have any answers as to the situation with regard to the removal of conditions and subsequent potential bar, but you are looking at having been out of the country for a full year very soon...  This has serious potential ramifications as well, including the implication of having abandoned his residency unless he had AP for the trip...

 

One way or another you need to figure this out quickly, and probably have an attorney help out...  Good luck!

[TryingToGoHome 3]

16 minutes ago, jkstark said:

I don't have any answers as to the situation with regard to the removal of conditions and subsequent potential bar, but you are looking at having been out of the country for a full year very soon...  This has serious potential ramifications as well, including the implication of having abandoned his residency unless he had AP for the trip...

 

One way or another you need to figure this out quickly, and probably have an attorney help out...  Good luck!

Hm. My understanding was that after failing to lift the restrictions on his conditional residency, his permanent residence became null and void. The USCIS official who granted his conditional residency back in 2011 did warn us that if we failed to lift restrictions on time, we would likely have to restart the i-130 / residency process again. That said, AFAIK and from what the immigration lawyer I spoke with said, once we get everything sorted out this time and return to the US with him as a permanent resident again, he will receive 10-year residency since our marriage is now well-past two years old.

[jkstark 97]

 For reference, user 'jc2008' has a similar situation in regard to a late filing here: 

Read further down for the JC2008 report, where they filed somewhere around 9 years late and were approved.  I don't know more about the circumstances, but they might be a useful resource for you - as would be the others in that thread...

[TryingToGoHome 3]

4 minutes ago, jkstark said:

 For reference, user 'jc2008' has a similar situation in regard to a late filing here: 

Read further down for the JC2008 report, where they filed somewhere around 9 years late and were approved.  I don't know more about the circumstances, but they might be a useful resource for you - as would be the others in that thread...

 

Thanks, I will take a look at that. Yeah, we feel like fools for having left when we probably still could have filed to lift restrictions even though we were a few years late. Live and learn, eh?

[jkstark 97]

The other problem that I see you potentially having is how you will be able to appear for a removal of conditions interview, and how you both can return to the US prior the the year being up - or even later...  With no valid GC, your husband will have to get a re-entry permit (? - I don't recall what the document itself is called) in any case from the local embassy, I think.  I have no idea as to how long that will take, but probably you are going to be looking at going over the 1 year mark regardless with that route.  You obviously need to be in the US for the interview, but this is a bit of a Catch-22 scenario.

 

I think this is definitely going to be one of those where you'll have to find a lawyer who is willing to look at least at a part of the situation - or just bite the bullet and accept the fact that he is likely to be considered to have abandoned his status, and has a bar.  People here have more knowledge than I do on a lot of this, but it seems to me that you would need to file for a CR1 visa for him and go through that entire rigamarole - once approved though, it would be a 10 year card automatically, though the naturalization clock would start again as well.

[TryingToGoHome 3]

Well holy #######, thank you jkstark, you've given me some serious info to consider. I'm going to look over the i-751 again tomorrow, and check into the possibility of getting an advance parole / re-entry permit for my husband. First thing tomorrow I will email the embassy here to find out if anyone there could assist us. It's a hell of a long shot, but if we could avoid the whole i-601 process and all that it entails...

 

 

[TryingToGoHome 3]

Just a quick update:

 

It doesn't look like there's any realistic way around starting a new i-130 and all that entails. If we were still in the US, I think we would've filed the i-751 again and hoped to lift restrictions the 'easy' way, i.e. hoping that USCIS would be lenient / accepting of the circumstances that prohibited us from filing until ~5 years after we were supposed to.

 

Since we're already in Europe though, and coming up on a year here, the safest and most logical option appears to be restarting the process via a new i-130. I am currently waiting to hear back from the Embassy in Brussels to find out if we can file directly with them, and will update again when things progress further. In the meantime, husband is so, so bummed to realize that he could have naturalized after 3 years in the US. We always thought it was after 5 years (and, well, he could have done that too, but it burns a little extra to know he could've done it after just 3 on account of being married to a US citizen). 

 

Anyway, live and learn. When we finally get back to the US, he's going to dig a hole, plant himself, and grow roots this time.

[TryingToGoHome 3]

Embassy in Brussels sent our request to the Frankfurt field office and they summarily denied us exceptional filing permission. Looks like we'll have to file the new I-130 at the Chicago Lockbox.

[Cyberfx1024 7,980]

On ‎6‎/‎6‎/‎2018 at 9:41 PM, jkstark said:

The other problem that I see you potentially having is how you will be able to appear for a removal of conditions interview, and how you both can return to the US prior the the year being up - or even later...  With no valid GC, your husband will have to get a re-entry permit (? - I don't recall what the document itself is called) in any case from the local embassy, I think.  I have no idea as to how long that will take, but probably you are going to be looking at going over the 1 year mark regardless with that route.  You obviously need to be in the US for the interview, but this is a bit of a Catch-22 scenario.

 

I think this is definitely going to be one of those where you'll have to find a lawyer who is willing to look at least at a part of the situation - or just bite the bullet and accept the fact that he is likely to be considered to have abandoned his status, and has a bar.  People here have more knowledge than I do on a lot of this, but it seems to me that you would need to file for a CR1 visa for him and go through that entire rigamarole - once approved though, it would be a 10 year card automatically, though the naturalization clock would start again as well.

Her husband would not be able to get a re-entry permit at all because the GC is expired at this point. A re-entry permit is required when a person has spent a fair amount of time outside the country with a VALID GC. They abandoned the process and thus have to redo the whole thing all over again with a 10 year bar over their heads now.

[Cyberfx1024 7,980]

On ‎6‎/‎8‎/‎2018 at 1:43 PM, TryingToGoHome said:

Just a quick update:

 

It doesn't look like there's any realistic way around starting a new i-130 and all that entails. If we were still in the US, I think we would've filed the i-751 again and hoped to lift restrictions the 'easy' way, i.e. hoping that USCIS would be lenient / accepting of the circumstances that prohibited us from filing until ~5 years after we were supposed to.

 

Since we're already in Europe though, and coming up on a year here, the safest and most logical option appears to be restarting the process via a new i-130. I am currently waiting to hear back from the Embassy in Brussels to find out if we can file directly with them, and will update again when things progress further. In the meantime, husband is so, so bummed to realize that he could have naturalized after 3 years in the US. We always thought it was after 5 years (and, well, he could have done that too, but it burns a little extra to know he could've done it after just 3 on account of being married to a US citizen). 

 

Anyway, live and learn. When we finally get back to the US, he's going to dig a hole, plant himself, and grow roots this time.

FYI it's not 3 years of being in the USA to file for Naturalization but 3 years of being a Permanent Resident with a Family/Marriage based GC. If you look at his GC then you would see the "Resident since XXXX" that would be the determination of the timeline for the 3 year rule.

On ‎6‎/‎6‎/‎2018 at 9:20 PM, jkstark said:

 For reference, user 'jc2008' has a similar situation in regard to a late filing here: 

Read further down for the JC2008 report, where they filed somewhere around 9 years late and were approved.  I don't know more about the circumstances, but they might be a useful resource for you - as would be the others in that thread...

They stayed in the country and never left the USA from what it looks like.

[TryingToGoHome 3]

5 minutes ago, Cyberfx1024 said:

FYI it's not 3 years of being in the USA to file for Naturalization but 3 years of being a Permanent Resident with a Family/Marriage based GC. If you look at his GC then you would see the "Resident since XXXX" that would be the determination of the timeline for the 3 year rule.

Thanks, I'm aware of the terms and didn't intend to imply that it was 3 years from the date of his first arrival. All the same, he still would have qualified in 2014 if we hadn't wound up in such a legal mess. Live and learn, onward and upward. US is our home and we're determined to go back before we're in our 40s, so gonna re-file the I-130 and start the process over.  

Edited June 12, 2018 by TryingToGoHome

[Cyberfx1024 7,980]

1 minute ago, TryingToGoHome said:

Thanks, I'm aware of the terms and didn't intend to imply that it was 3 years from the date of his first arrival. All the same, he still would have qualified in 2014 if we hadn't wound up in such a legal mess. Live and learn, onward and upward. US is our home and we're determined to go back before we're in our 40s, so gonna re-file the I-130 and start the process over.  

Ok thank you it wasn't clear from that post so I just wanted to clarify that for you and future people who may read this post. I admit it does suck that you guys didn't do that when you could have in the past, hindsight is always 20/20.

 

I do believe that you have to redo it all over again and just wait out for the official decision.

[TryingToGoHome 3]

9 minutes ago, Cyberfx1024 said:

Ok thank you it wasn't clear from that post so I just wanted to clarify that for you and future people who may read this post. I admit it does suck that you guys didn't do that when you could have in the past, hindsight is always 20/20.

 

I do believe that you have to redo it all over again and just wait out for the official decision.

 

Yeah, we've been kicking ourselves for months now about having left the US under the circumstances. It would have been a lot better to fix our legal situation if we'd stayed in the States, but the situation is what it is now. It's nice to know that if/when (I like to think 'when', but since nothing is certain until USCIS makes all their decisions...) we make it back, my husband will be able to naturalize after 3 years on his new residency permit. He's wanted to be a US Citizen for a long time.

 

I can't recommend highly enough to anyone else who may ever read this though: if you can stay in the US while you file various forms and restore your/your spouse's legal status, absolutely do not leave! With the i-601A and other forms available, and USCIS' willingness to consider extenuating circumstances if you're late filing the i-751 to lift conditions on a 2-year residency permit, it makes so much more sense to stay put and fix everything from within the US. Don't get stuck outside like we have if you can avoid it, it's really not fun.

Edited June 12, 2018 by TryingToGoHome