K-1 visa, 5 year ban, forms required and order of filing

[karlmalowned 3]

Hello,

 

Without going into too many details, here is the situation:
My girlfriend was subject to expedited removal by CBP under a tourist visa, with the following code for removal:

212(a)(7)(A)(i)(I).

Since she was removed, she also incurred the 5 year ban under:
"212(a)(9) of the act".

 

My questions:

 

I understand that currently, a 212 waiver will need to be approved and can possibly be submitted in conjunction with a K-1 application. Is that correct?

 

From what I have been reading, since there was no fraud and misrepresentation charge on there, then there is no need to file a 601 waiver currently. Is that correct?

 

Even though there is no fraud and misrepresentation charge now, could that possibly be determined later on in the process by someone else? -- i.e. could "intent to immigrate" be considered fraud of a material fact under a tourist visa, and a 601 waiver be required at another point in time?

 

I appreciate any answers that can be given.

[Crazy Cat 41,980]

More detail usually results in a more accurate answer.

[florida racer 73 200]

Well, the simple fact that she overstayed her visa, was removed and incurred a ban would be an issue for uscis and the co doing your interview, either way, you will have a long road ahead of you.

[geowrian 22,337]

An I-212 lets her reapply for entry after deportation. An I-601 waives an inadmissibility. It sounds like she needs both if she intends to get the visa before the 5 years is up.

 

The CO could determine that there was misrepresentation committed in the past. It's not likely for them to do so without strong evidence of it, but it certainly is possible. Intent to immigrate is not misrepresentation itself, but material, factual information stated while she was questioned can be misrepresentation.

 

7 minutes ago, florida racer 73 said:

Well, the simple fact that she overstayed her visa, was removed and incurred a ban would be an issue for uscis and the co doing your interview, either way, you will have a long road ahead of you.

I think she was issued an expedited deportation at POE, so no overstay would have applied. Although this is an assumption, so clarification from the OP would be nice.

Edited July 8, 2018 by geowrian

[florida racer 73 200]

3 minutes ago, geowrian said:

An I-212 lets her reapply for entry after deportation. An I-601 waives an inadmissibility. It sounds like she needs both if she intends to get the visa before the 5 years is up.

 

The CO could determine that there was misrepresentation committed in the past. It's not likely for them to do so without strong evidence of it, but it certainly is possible. Intent to immigrate is not misrepresentation itself, but material, factual information stated while she was questioned can be misrepresentation.

 

I think she was issued an expedited deportation at POE, so no overstay would have applied. Although this is an assumption, so clarification form the Op would be nice.

Very true..... I was just forming an answer off of the information provided

[karlmalowned 3]

An overstay did not occur, nor did working in the US. A return ticket was there within the visa validity, and no admittance to trying to get married or illegally work while here was given.

 

Phone messages were used to imply intent to immigrate, but no factual misrepresentation occurred during either the tourist application or the interview.

[gregcrs2 1,778]

So they checked her phone and found text messages that gave CBP enough reason to believe there was intent to immigrate?

[geowrian 22,337]

What prompted checking her phone? While becoming increasingly common, they don't usually do so without suspicion already. Was this done by the initial CBP officer or after being sent to secondary?

[karlmalowned 3]

She was in the USA for about a month, and went back to take exams. Then came back a week later - guess she was flagged for that? Said she was coming to stay with a friend, they didn't believe her and checked her phone.

 

I guess I was under the impression that, given the forms provided to her, that a determination could be made of what waiver was necessary to apply for the K-1 visa (i.e. no fraud charge, so a 212). But it sounds like, based on the replies, that is not necessarily the case?

 

How exactly do I determine the waivers that need to be filled for a possible K-1 approval? Thank you - and let me know if you need more info.

[karlmalowned 3]

20 minutes ago, gregcrs2 said:

So they checked her phone and found text messages that gave CBP enough reason to believe there was intent to immigrate?

Yes

[geowrian 22,337]

That could be part of it. What kind of tourist goes home to take exams then comes back? They take exams then visit (or visit then take exams).

 

There's no way to "know" exactly what will be needed, because any inadmissabilities will be determined at the interview. At a minimum an I-212 is needed within the 5 years. An I-601 may apply as well, but that's where checking with an immigration attorney would be helpful if it's worth preparing one. Only at/after the interview would it be known if this is necessary.

A solo I-212 is a bit unique, but can apply.

[karlmalowned 3]

39 minutes ago, geowrian said:

There's no way to "know" exactly what will be needed, because any inadmissabilities will be determined at the interview.

What interview is that exactly? For the K-1 application?

[geowrian 22,337]

1 minute ago, karlmalowned said:

What interview is that exactly? For the K-1 application?

The embassy interview for the K-1 visa

[Amadia 711]

7 hours ago, karlmalowned said:

An overstay did not occur, nor did working in the US. A return ticket was there within the visa validity, and no admittance to trying to get married or illegally work while here was given.

 

Phone messages were used to imply intent to immigrate, but no factual misrepresentation occurred during either the tourist application or the interview.

Sorry you are in this position but if text messages showed "intent" while there was an existing tourist visa which only allows a stay of up to 6 months in the USA, then removal and a ban would be imminent. Best of luck in your next journey!

[Boiler 45,659]

Unusual for an expedited removal inthis sort of case, hence the questions. More usually she would have been allowed to withdraw her application.

 

The main difference is that an I 212 can be filed now, processing times seem very variable whilst an I 601 can not, but if both are needed it is easier to file them together.