Administrative processing? Or just in limbo?

[jan22 2,898]

I’m late coming into this thread as I don’t read this forum often, but am responding, in case the OP or others in similar situations need the information.

 

The OP indicated the possibilities of an ineligibility and, in a prior post mentioned jail time and a +1 year overstay because of it, despite a request to be removed prior to the overstay reaching one year.  
 

I am not sure why the consular officer said it wasn’t administrative process (because it is — maybe just didn’t want you to think it was the “normal” security related issues or it didn’t fit any of the check boxes on the form?).  When she referred to sending it for the lawyer to look at, what she almost assuredly was referring to was having the case reviewed by the lawyers in the Bureau of Consular Affairs and getting an advisory opinion on whether there is one or more ineligibilities in your case.  The officer (and likely her supervisor) want to make sure they get it right and that they are applying the law(s) correctly.  
 

Having this opinion up-front will allow the officer to approve the case if there are no ineligibilities, with confidence that the questions will likely not arise with USCIS at the Port of Entry, as there will be notes about the finding in the consular system.  And, if there are ineligibilities, it will allow her to inform you about any way available to move your case forward (waiver, waiting out the overstay ban, etc).

 

[234313 1]

@jan22 This was very informative. Thank you for this! I have never heard of the Bureau of Consular Affairs, but what you're saying does make a lot of sense. Do you know if there's usually a timeframe for when that bureau gets back to the officers? At this point, we're going on 3 months with no word from them. Also, could we possibly reach out to them directly? 

[234313 1]

@jan22 Also, do you know how they might calculate the overstay (based on my previous post)? 
 

My husband was out of status for 7 months, then got locked up. He asked for voluntary departure and wasn't released until after 5 months. 

[Crazy Cat 39,285]

19 minutes ago, 234313 said:

then got locked up

The reason might be important.

[jan22 2,898]

On 3/24/2024 at 7:04 AM, 234313 said:

@jan22 This was very informative. Thank you for this! I have never heard of the Bureau of Consular Affairs, but what you're saying does make a lot of sense. Do you know if there's usually a timeframe for when that bureau gets back to the officers? At this point, we're going on 3 months with no word from them. Also, could we possibly reach out to them directly? 

 

On 3/24/2024 at 7:10 AM, 234313 said:

@jan22 Also, do you know how they might calculate the overstay (based on my previous post)? 
 

My husband was out of status for 7 months, then got locked up. He asked for voluntary departure and wasn't released until after 5 months. 

There is no set time for a response; depends on the complexity of the case, the number of other advisory opinions they are working on, whether they ned more information, etc.  You cannot reach out to them directly.

 

I believe the overstay will include all of the time from when he started the overstay until he departed — there is no way they could speculate that “but for being arrested” he would have left any earlier than he did.

[Family 3,483]

Your best course of action is to prepare the I-601…as you are looking at 1 1/2 to 2 years. 

 

He will absolutely be subject to the 10 year bar for ULP. The VD / voluntary departure  will not excuse it. Attorney was confused when he advised you the ‘ask’ date for VD made any difference when one year  ULP was accrued. See link 

 

Was he in jail as opposed to immigration detention ? Is there a criminal record/conviction ?
 

https://www.ilrc.org/sites/default/files/resources/understanding_unlawful_presence_march_2019.pdf

 

[234313 1]

On 3/28/2024 at 2:35 PM, Family said:

Your best course of action is to prepare the I-601…as you are looking at 1 1/2 to 2 years. 

 

He will absolutely be subject to the 10 year bar for ULP. The VD / voluntary departure  will not excuse it. Attorney was confused when he advised you the ‘ask’ date for VD made any difference when one year  ULP was accrued. See link 

 

Was he in jail as opposed to immigration detention ? Is there a criminal record/conviction ?
 

https://www.ilrc.org/sites/default/files/resources/understanding_unlawful_presence_march_2019.pdf

 

@Family 

Ok, we've looked over the link you sent, and that makes a lot of sense. We were wanting to start the process of the waiver but were told by our attorney and a different attorney that we can't file a waiver until we are told that a waiver is needed. 

Also so prior to him getting arrested he hadn't been in any trouble. He got arrested for driving with a fake license and once they realized he was out of status he was moved to the immigration holding facility

[Family 3,483]

15 minutes ago, 234313 said:

@Family 

Ok, we've looked over the link you sent, and that makes a lot of sense. We were wanting to start the process of the waiver but were told by our attorney and a different attorney that we can't file a waiver until we are told that a waiver is needed. 

Also so prior to him getting arrested he hadn't been in any trouble. He got arrested for driving with a fake license and once they realized he was out of status he was moved to the immigration holding facility

You cannot file a waiver before Consulate makes a finding of inadmissibility…if they make a finding, he will get a new Refusal Letter. 
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