Visa IR1 denied on interview requesting i-601 waiver

[jan22 2,898]

1 hour ago, Rocio0010 said:

I feel like you're missing details. Visa overstays are forgiven for spouses of USC. Did they give you a letter with the denial? What are the reasons for the denial?

Overstays are waived (i.e., "forgiven") during Adjustment of Status cases where the applicant is still in the US and a 212 (a)(9) ineligibility has not been triggered by leaving the US after an the overstay.  The OP left the US -- so the ineligibility likely applies and must be waived before a vIsa can be issued. 

 

There are a few questions to the OP, however, that need to be answered to help determine if the ineligibility applies.  Were you on an F1 student visa or J1 exchange visitor visa for studying?  Was your I-94 at entry issued with a specific "Admit to" date or was it for "Duration of Status" (marked "D/S")?  If it was a J1, did you have a two-year home residency requirement?  These are important details to know to provide the best responses.

Edited February 24, 2022 by jan22

[Crazy Cat 39,261]

The OP has been back in home country for 3 years.  The OP stated there was a 2 year residency requirement.  The consulate officer has already evaluated the case, and requires a waiver.

Edited February 24, 2022 by Crazy Cat

[SteveInBostonI130 3,319]

4 hours ago, Himenov said:

Hello,

For a few reasons, I overstayed my student visa on 2013, then come back to my home country on 2018. During that time I married with a US citizen and we have 2 kids who born there as well. I asked several lawyer and they advice me to go back to my country and apply for immigrant visa in US embassy in my country, and I don't need to apply for any waiver. I had 2 years residency on my student visa that's why I was a bit worry but I decided to left the US because my mother was sick, and bring my kids with me.

I spent my 2 years residency then applied my IR1 here and I just got my interview then the consular told me that my visa got rejected and need a follow up for i-601 waiver.

I am so devastated right now, we've been separated with my husband for over 3 years and wanted to come back.

How long is the process for i-601 and what should I do next? Anybody has similar issues with mine?

 

So sorry to hear about this.  You were given horrible advice by the lawyer.  I would say negligent, even.  If you stayed in the US and adjusted status, your overstay would have been forgiven.

 

I assume your overstay was beyond 1 year?  If so, then you were automatically given a 10 year bar the day you left the US.  Without the I-601 waiver, you will not be allowed to enter the US until 2028.

 

You can file the I-601 yourself or through a lawyer.  If going with a lawyer, get a good one.  I wonder if any here on VJ can make recommendations?  I only know of Jim Hacking from his youtube videos.

 

Right now processing times for I-601 at the USCIS Nebraska service center is 7 to 9.5 months.

[jan22 2,898]

7 minutes ago, Crazy Cat said:

The OP has been back in home country for 3 years.  The OP stated there was a 2 year residency requirement.

The statement was that there was two year residency on the visa -- just wanted to clarify that it meant, in fact, the 212(e) home resid r ncy requirement and not meaning that the visa/status in the US was for two years.  Just wanted a complete picture of all the factors in the case that might have affected the decision to leave the US and the applicability of the 212 (a)(9) finding.

Edited February 24, 2022 by jan22

[Himenov 2]

9 minutes ago, jan22 said:

Overstays are waived (i.e., "forgiven") during Adjustment of Status cases where the applicant is still in the US and a 212 (a)(9) ineligibility has not been triggered by leaving the US after an the overstay.  The OP left the US -- so the ineligibility likely applies and must be waived before a vIsa can be issued. 

 

There are a few questions to the OP, however, that need to be answered to help determine if the ineligibility applies.  Were you on an F1 student visa or J1 exchange visitor visa for studying?  Was your I-94 at entry issued with a specific "Admit to" date or was it for "Duration of Status" (marked "D/S")?  If it was a J1, did you have a two-year home residency requirement?  These are important details to know to provide the best responses.

I was on a J1 visa for studying and have two-year home residency requirement.

 

I'm not sure about the I-94, and don't understand about the difference between "admit to" and "duration of status"

[Redro 4,600]

Laurel Scott is another lawyer often recommended on VJ

http://www.scottimmigration.net/

I believe she specializes in waivers. 

 

Hacking is an option but I believe his idea is to always create a case of hardship before the waiver is requested. But, I think he could also be helpful. 

If you can get on his live for a consultation he could give some ideas on how to proceed. But, either way you will have to show why you need to return to the US to reunite with your husband and why living in Indonesia with your US citizen children is no longer an option. 

Edited February 24, 2022 by Kor2USA

[jan22 2,898]

20 minutes ago, Himenov said:

I was on a J1 visa for studying and have two-year home residency requirement.

 

I'm not sure about the I-94, and don't understand about the difference between "admit to" and "duration of status"

When you entered the US, they would have stamped the passport and I-94 with either an exact date or "D/S".  If it was D/S (which is less likely since you were on a J1 visa, but still possible), an individual did not begin accuring time out of status until USCIS or an immigration judge ruled that they were out of status.  Since, I assume, that neither of those things happened in your case if you entered as D/S, then the 9(B) ineligibility would have been applied in error IF your were admitted for Duration of Status.

Edited February 24, 2022 by jan22

[Rocio0010 5,565]

Howdy, everyone. I am back after my morning coffee. Disclaimer: being South American, and having tried Colombian coffee, I don't necessarily consider "Folgers" proper coffee, but whatever. It is what it is. 

First of all, I wanted to apologize for giving the wrong advice about an overstay being forgiven. In my defense, I was low on caffeine and my puppy and my cat kept me up for most of the night. They like their 3: 00 am gym session.

Anyhow, yes, I do understand now that an overstay would have been forgiven if the OP had done adjustment of status. I was going to say that maybe there was a language issue and a misunderstanding with the attorneys, but according to OP, several attorneys have given the same advice. Well, then several attorneys need to be reported. 

As others have pointed, now OP will need a waiver. My question is, are waivers difficult to obtain? I have heard several attorneys (not that I am a huge fan of many of them) stating that there needs to be a hardship for the USC. At least Hacking does prompt that. 

[Dashinka 23,248]

39 minutes ago, SteveInBostonI130 said:

 

So sorry to hear about this.  You were given horrible advice by the lawyer.  I would say negligent, even.  If you stayed in the US and adjusted status, your overstay would have been forgiven.

 

I assume your overstay was beyond 1 year?  If so, then you were automatically given a 10 year bar the day you left the US.  Without the I-601 waiver, you will not be allowed to enter the US until 2028.

 

You can file the I-601 yourself or through a lawyer.  If going with a lawyer, get a good one.  I wonder if any here on VJ can make recommendations?  I only know of Jim Hacking from his youtube videos.

 

Right now processing times for I-601 at the USCIS Nebraska service center is 7 to 9.5 months.

I saw in this thread that Lizz Cannon specializes in I-601 waivers.

 

https://www.visajourney.com/forums/topic/751394-is-a-lawyer-needed-for-i601-filing/

[Boiler 43,438]

My guess as that is all that can be done currently

 

The advise about no ban was I assume on the basis of DS

 

Maybe on the first form the I 601 was ticked incorrectly.

[aaron2020 11,651]

1 hour ago, Mike E said:

Indeed.  The lawyers that told OP to leave the USA are certifiably incompetent.  I  wonder if there is a possibility of a waiver based on ineffective counsel.  Those attorneys should be reported to their state bar.  

The lawyers that I consulted told me to do something stupid is not an excuse for anything.  

[aaron2020 11,651]

OP had a J1 with a 2 years home requirement.  This prevented adjusting status.  To adjust status, OP would have needed to get that waived.

 

OP left the US after overstaying for 5 years and triggered the 10 years ban.

 

OP's immigration visa was denied due to the ban.  Now, OP needs a waiver for the ban.  

[Crazy Cat 39,261]

3 minutes ago, aaron2020 said:

OP had a J1 with a 2 years home requirement.  This prevented adjusting status.  To adjust status, OP would have needed to get that waived.

 

OP left the US after overstaying for 5 years and triggered the 10 years ban.

 

OP's immigration visa was denied due to the ban.  Now, OP needs a waiver for the ban.  

Good point about the 2 year home residency...but I would have tried that waiver first.  ...thanks.

Edited February 24, 2022 by Crazy Cat

[aaron2020 11,651]

Gonna guess that OP had a quick consultation with a lawyer.  Was focused on the 2 years home rule.  Left the country and did all the immigration paperwork on their own and without legal advice.  

[Crazy Cat 39,261]

Wouldn't most attorneys have suggested getting home residency requirement waiver before leaving the US?