jpaula

OK, I think it makes you inadmissible under 212(a)(6)(B) (grrr...is showing the shades emoticon rather than a "B." I give up on trying to fix it.)

The question was why Rio would not let him file a waiver. Pretty valid question, actually, as many people file waivers for illegal presence every day. I think the answer, as pointed out in this thread, is that some Consulates, Rio among them, will not let you file a waiver if you have skipped an immigration hearing. Good information to know and to share if anyone else is in a similar situation and will be going through one of the Consulates with this policy.

To the OP...Have you contacted a Congressman? It may be that you are stuck with the policy of the Consulate you go through, but it seems logical to me that if this is being applied capriciously or at some Consulates and not others, you may be able to get a Congress person to help force the Consulate to take the waiver. The waiver goes to DHS after all, not to State.

The US Consulate General is an agency of the US State Dept. They do not make their own local rules where the law clearly spells out the conequenques if you do not show up at a removal proceeding, that youm are toast. It is spelled out in the court order, and by the law.

He probably thought by marring a US Citizen that all problems would go away....bad assumption.

She coula use an attorney that is certified in Immigration Law, who could explain all of this to her.

Do the ban a try again.

Do you know where in the law this is spelled out? It is not listed as grounds for inadmissibility in the immigration code. I think that is the confusion.

The question was why Rio would not let him file a waiver. Pretty valid question, actually, as many people file waivers for illegal presence every day. I think the answer, as pointed out in this thread, is that some Consulates, Rio among them, will not let you file a waiver if you have skipped an immigration hearing. Good information to know and to share if anyone else is in a similar situation and will be going through one of the Consulates with this policy.

To the OP...Have you contacted a Congressman? It may be that you are stuck with the policy of the Consulate you go through, but it seems logical to me that if this is being applied capriciously or at some Consulates and not others, you may be able to get a Congress person to help force the Consulate to take the waiver. The waiver goes to DHS after all, not to State.

My husband and I went through the I-601 and I-212 process. Here is some background:

My husband was here on a student visa when we met. We got married after 11 months. We were in the process of filing paperwork HERE in the states, but ran into a lot of difficulty because my husband is Palestinian and all of his paperwork is processed as such EVEN THOUGH he was born in Morocco. While our marriage was approved from our interview, we were still waiting for it to be processed when my husband's mother became very, very ill. He flew home to see her. EVEN THOUGH we were in process, my husband's student visa had expired while he was still here and he was considered out of status and USCIS considered him to have voluntarily deported himself. So he was not able to re-enter the country. We were told that we would have to file an I-601 waiver and the I-212.

I'm going to be brutally honest with you. This was a TOUGH, TOUGH, NIGHTMARE PROCESS. It took us over 4 years. I had to refile everything here in the states first through the local office. Then it went on to the NVC. This took no less than a year. It finally was sent to the Consulate in Morocco. After it had been there for about 6 months, he went in for an interview which we thought was going to be for the waiver case. It was a quick interview that didn't go well and then my husband was put in AP for the next year and a half....even though much of this had already been done when we were processing our case in the States before he left. He finally had an interview scheduled in Morocco, but as he was riding the train to his interview...a bomb attack happened a couple of blocks from the Consulate's office. They shut it down completely for two months! Finally, he did receive his interview, that went very well and we were told the file/case then had to be sent to Rome for the waiver processing. It took several months to get there and for them to log it in. Once it was finally reviewed (6-8 months after getting there), it was finally approved and things happened very fast after that. I think he was approved in January and was able to get his passport stamped and stuff my the beginning of March.

I know that we had to have a lawyer because of the difficulty of Hicham's country and the paperwork associated with that. I feel certain because of your past history, you are definitely going to need a lawyer. You are correct that you have to have a REALLY, REALLY good case to get a waiver approved. Rome is tough and they look at everything. I will say that they are pretty good as far as communicating where you are at in the process and responding to emails. I don't know what their backlog is now, but I imagine that it is alot. My husband and I had a very good case according to our lawyer because we had so much evidence to show the validity of our marriage and also because we had a child together, but also because we had alot of photographs with both of our families in them.

VJ has an excellent section on waivers and you can get alot of great advice there.

Good luck!

Agree with everything except that last sentence. VJ's waiver forum is pretty rife with misinformation and judgmental BS. Go to www.immigrate2us.net.

Also note that getting a waiver approved for multiple CIMTs is even more difficult than for an overstay so please take the time to research the process and the get a very strong hardship letter/evidence.

I'm a US citizen, and have applied for my husband to come back to the USA, he illegally enter the US in 2000, was arrested and later released with a bond never showed up to the court. Then in 2002 We met and got married. He left the US before I applied for him to come back.He had his interview in Rio De Janeiro and was denied the visa because he overstayed under section 212 BUT they also say they will not accept an Waiver I-601 ? Has anyone had any problems simular to this ? My lawyer has evrything ready to be submited but they will not accept it ! PLEASE HELP

I don't think this is an overstay ban. It looks like he entered without inspection, for which the ban is not waiverable, I believe.

I'm sorry, but if the consulate did not allow the waiver, you will have to wait out the ban and re-apply when he's eligible.

Good luck.

Technically, there is no ban for entering without inspection, only for the illegal presence accrued once in the country.

The legal consequence if an EWI is that one cannot, even if married to a USC, adjust status from the US, but must go back to their home country to do so and that this departure almost always triggers the illegal presence bar.

Something does not make sense. If he was denied only because of the overstay he should be allowed to file a waiver. Did they give any other reason for the denial?

Maybe is a mix of a lot of things, not only he overstay but also was arrested, maybe they found more things in his file. We never know.

The visa applicant should know as they are given the specific grounds for their denial.

Something does not make sense. If he was denied only because of the overstay he should be allowed to file a waiver. Did they give any other reason for the denial?

Unfortunately (and despite the name), this is not the best forum in which to ask waiver questions. Some of the responses in this thread are simply incorrect. There are many people who have had waivers approved for both misrep and illegal presence. You will find them, as well much more accurate advice, at www.immigrate2us.net. In order for them, or an attorney, to really help you you will need to know a few additional things about your husband's case: 1) exactly how did he originally enter the US? You have said he entered "illegally" but the details actually matter in the eyes of immigration law 2) Did his visa application result in an actual misrep charge from the CO? This really matters because, while illegal presence of over 365 days carries a 10 year (waivable) bar, misprep carries a permanent (waivable) bar. The process for overcoming either bar is the same--an approved I-601--but it is worth knowing what kind of bar you face. That is where you start. I2us, and possibly a lawyer, can give you helpful advice from there.

Good luck to you.

To the mods: I think we should reconsider having a waiver forum on VJ as it seems only to spread inaccurate immigration advice and judgmental responses. Winds up being more like entrapment than a way to help.

I suggest you depart as soon as you can. First you are going to have your USC husband file the I-130. After it is approved and an interview has been granted, you will likely be denied at the interview due to the overstay. Further, you will likely incur a 10 year ban (this is why leaving sooner than later is best since the ban begins when you leave). Once denied, you will submit the I-601 to try and get the ban removed. Once the I-601 is approved, you will be able to enter the US as a legal resident.

Are your children US citizens?

Good luck. Check out immigrate2us.net, Visa Journey is good, but immigrate2us are experts in waivers and bans.

PS - dutchmatt - calm down. We are all here to help and support each other.

Agreed with one addition. You will also be found inadmissibale on grounds of misrepresentation which makes getting an I-601 approved a bit harder, but not impossible. It also carries a permanent (waivable) rather than 10 year bar. This is assuming the passport you originally entered with was not a US passport. If it was you have a whole other issue to contend with.

My wife is not guilty of their supposed crime - Even murderers have appeals.

she's guilty of EWI (entry without inspection) in the least. at worst, she is guilty of falsely claiming to be a USC. she was a legal adult when she chose to sneak into the US, and is responsible for her action at the time.

move to mexico if you want to live with her.

Unhelpful and flippant response. The point is, if she were found inadmissible for an EWI and overstay, they are both waivable. Furthermore, CDJ has the pilot program and a very high approval rate for such waivers. The problem here, as the OP seems to realize, is the false claim of US citizenship which is not waivable. It is an important distinction and one that may be helpful for others to understand as well as many face it so perhaps we can use this thread to encourage decent info rather than snide comments.

In order for an I-601 to be approved you have to prove the hardship to you of both:

1) you living in your spouse's country and

2) you living in the US without your spouse.

I think you can do the first if you clean up this letter and make sure you have a lot of documentation for each point. (Make sure to use Sate Department reports--and not just your personal experience--for your points. You have to make a documented, clear, persuasive argument rather than an emotional plea.) That done, you will still need to prove the second point and, as the skepticism of the comments here show, you have not done that. I bet you can, but you will need to really work on this part of the argument in your letter/supporting documentation.

Go to www.immigrate2us.net and post your story/letter there. You will get a lot of good feedback and will also hear more from others who have gone through the waiver process and been adjudicated in Athens.

Really just responding to say Hi Kat! Good to see you.

Important to realize that consulates differ. Oddly, I do not think Algiers is on the lookout for fraud to the extent other are. The interviews are really easy and I do not know of one marriage-based application that has been denied (though I do know of several that, in my mind, obviously should have been). Maybe lack of American tourists passing through, maybe the Algerian men have not yet caught on to chatting as a way to meet American women...for whatever reasons, there are many fewer applications and much less suspicion. I think anyone going through a high fraud consulate needs to be prepared for the process. It is, overall, meant to protect the USC. Unfortunately, it also makes the process hell for genuine couples.

You may need a waiver in the future, but the problem you have now is not related to waivers, but rather a returned petition. They have denied you because you have not proven the validity of your marriage to their satisfaction. (Once you get over this hurdle, they may still deny you because of the way you entered the US. Then you will want to understand the waiver process. But, first things first.) Many others have been through this and you may want to post your question in the IR-1/CR-1 forum. The regional forums may also be able to give you some advice from people who have dealt with the same Consulate as you.

I don't want to give out bad info and I don't know a lot about 245(i). It would make sense that the underlying relationship would need to be current, but then again, immigration law does not always run on sense.

Good to hear that he came through a POE. They could charge him with misrepresentation at the time of the AOS interview if they want to be really picky and point out the fact that he lied about his intent to immigrate, but that is nothing you can know until the time comes.

If you are canceling the current 485 (and I agree that you should) you are a little less pressed for time. I would use that time to get good legal advice.

Good luck!

Well, only if the current application that is pending is not denied and he is declared "removable" before the alien was able to submit an application, yes.

245(i) also does not protect an alien from removal proceedings and does not grant other benefits such as employment authorization or advance parole. If an alien has been ordered to be removed from the U.S., he cannot apply for adjustment of status by using 245(i). Also, if an alien is put in a removal proceeding in the future, he or she cannot stop the removal proceeding by using 245(i).

.

Thank you....I will do that today. Man, this has been such a mess. I can't wait to start over and do it the right way from the get go.

If your soon-to-be husband EWI-ed (entered without inspection) 11 years ago, whether he withdraws the pending I-485 or not, he would be required to return to his homeland. An alien that has entered without inspection is statutorily ineligible to adjust status in the USA. If he has been in the USA 11 years without having adjusted status, then he has an 11 year unlawful presence, which would subject him to a 10 year bar to admission. What kind of lawyer have you been working with? This is immigration 101.

Does the fact the an I-130 was filed prior to 2001 mean he might fall under 245(i)?

IF he did EWI, that is. To the OP, do you know exactly how he originally entered? It is important.

Hmmm, does canceling the current I-485 have the same effect as having it denied in this case (i.e. as it pertains to 245(i))?

Sorry to go off topic and it may be of no use to the OP, but it is kind of interesting.

We were told by our lawyer and many people in private post that we are better off canceling the I485 so that it doesn't get denied when he goes to the interview on June 10. I have called the uscis so many times I can not even count.....and they have told me from day one that he was illegible to file the i485. They have sent him his work permit and travel documents, he has had his fingerprinting, and medical exam approved. He entered at the Saulte Ste Marie POE and than got married and than she filed the I130. What is the 245 in comparison to the 485? I hope I answered your question.

245(i) is a type of amnesty and is granted only to those who had a petition filed for them prior to 2001. Your fiance does have an I-130 on file before then, so maybe it is something worth looking into. I am certainly no expert on it and you should talk to someone who is. His case is complicated, in part, because it is drawn out enough to span two different eras in immigration law. 245(i) was a way to grandfather in people already here when new, stricter laws hit the books (and apply to everyone since).

If he entered through a POE, then he would be considered "inspected" and thus not EWI. It is a very important distinction. Your previous response gave the impression that he had entered without inspection which is what DM was addressing above.

Well, only if the current application that is pending is not denied and he is declared "removable" before the alien was able to submit an application, yes.

245(i) also does not protect an alien from removal proceedings and does not grant other benefits such as employment authorization or advance parole. If an alien has been ordered to be removed from the U.S., he cannot apply for adjustment of status by using 245(i). Also, if an alien is put in a removal proceeding in the future, he or she cannot stop the removal proceeding by using 245(i).

.

Thank you....I will do that today. Man, this has been such a mess. I can't wait to start over and do it the right way from the get go.

If your soon-to-be husband EWI-ed (entered without inspection) 11 years ago, whether he withdraws the pending I-485 or not, he would be required to return to his homeland. An alien that has entered without inspection is statutorily ineligible to adjust status in the USA. If he has been in the USA 11 years without having adjusted status, then he has an 11 year unlawful presence, which would subject him to a 10 year bar to admission. What kind of lawyer have you been working with? This is immigration 101.

Does the fact the an I-130 was filed prior to 2001 mean he might fall under 245(i)?

IF he did EWI, that is. To the OP, do you know exactly how he originally entered? It is important.

Hmmm, does canceling the current I-485 have the same effect as having it denied in this case (i.e. as it pertains to 245(i))?

Sorry to go off topic and it may be of no use to the OP, but it is kind of interesting.

Thank you....I will do that today. Man, this has been such a mess. I can't wait to start over and do it the right way from the get go.

If your soon-to-be husband EWI-ed (entered without inspection) 11 years ago, whether he withdraws the pending I-485 or not, he would be required to return to his homeland. An alien that has entered without inspection is statutorily ineligible to adjust status in the USA. If he has been in the USA 11 years without having adjusted status, then he has an 11 year unlawful presence, which would subject him to a 10 year bar to admission. What kind of lawyer have you been working with? This is immigration 101.

Does the fact the an I-130 was filed prior to 2001 mean he might fall under 245(i)?

IF he did EWI, that is. To the OP, do you know exactly how he originally entered? It is important.

Take it as having some devil's advocates, a gov't proxy, and thus as a way to make your case stronger. Just remember that, no matter the opinion of others, the burden of proof in this case is on you. It is a rather frustrating thing to accept, but you will make a much stronger case if you keep it in the back of your head. Much luck to you and your husband.

Were you not officially deported? If you were detained while out of status I am going to guess that you have a deportation order even if you then left under voluntary departure, no? If so, you will need to file a waiver for this as well as your overstay.

I just want to say that immigration is far, far too regulated. For God's sake, we really need to have this much control over people who come here seeking a better life? This is ridiculous. Quite frankly, it's NONE of the government's business whom I marry or for what purpose. We really need to put this much effort, time, and money into keeping immigrants out? When our birth rate is starting to fall? Why? The only thing we should be concerned with is whether someone has a criminal record and can support themselves here in the US. Other than that, who firetruckin' cares?

Without agreeing or disagreeing, as someone who has been through the unpleasant side of a (let's just call it) "complicated" immigration case and come out the other end, I recommend that you separate your ideas of how immigration should be from a clear understanding of how it is. There are many people who are working on smart immigration reform and you can focus some of that anger in a productive way by helping them. (Have a look at American Families United). But, for your own case, put this aside and focus on understanding the laws that apply to your case. You are going to have to know what the hoops are and jump through them. You are going to have to understand that in almost all of these cases the burden of proof is on the intending immigrant. You are going to have to make your husband understand that you need to know the details of his last marriage. You are going to have to understand that, while you have the right to marry whomever you choose, you have no inherent right to live in your country with him. You are going to have to understand that his past behavior, be it his first marriage or his being here without status, complicates things through some fault of his own. None of this means he is not a good man or a good husband to you. But, you will have a much better chance of getting through this, of being an effective advocate for your husband if you face it as factually and as knowledgeably as you can.

I agree with most of what is posted above. I have to add, though, that if marriage fraud is what he is officially accused of, there is no waiver available. Your best bet is to fight the charges now which is what you are doing. I am unsure of the appeal process in this case, if it winds up in front of a judge or not. But, either way, you need to gather evidence as to the validity of the marriage and HIS intent in entering that marriage. I tend to agree that her criminal record is neither here nor there unless you can prove that she agreed to claim the marriage was fraudulent as a way of getting out of other charges. You should be able to find out if he has a deportation order against him without an FOA as he would have been informed of this. It sounds like your lawyer is on the right track and that you are getting good advice. So, you can take what we all say for what it is worth which may not be much.

Sorry to hammer on this, but this is where it gets confusing. If only she was charged, implying that she entered the marriage fraudulently while he did not, why is it grounds for denial of his second AOS attempt through marriage to you? This is what makes me think that, while he may not have been charged in the sense of going to jail as she did, it is certainly on his immigration record in a way that is quite serious. The big question for me is if this is the case why there is not a deportation order against him. If there is not, maybe it is not on his record as marriage fraud but as something else??? The solution either way would be to do what you are currently doing, so maybe it is moot. But, if I were you I would want to know exactly what is noted in his immigration file and what his current status is. These are areas that I hope your lawyer is helping with. Again, I wish you much luck.

That is something that I am not sure of as well. The officer said that the FBI did an investigation and found that they never lived together. However, I think that they are wrong, from what I have found out myself. Her sister even said that they lived together, on her sworn affidavit. Maybe it is because of this FBI 'investigation'?

That would be the reason they suspected fraud, but it does not explain how she was charged with fraud, jailed etc and he was not. Usually, they would go after the intending immigrant before the USC, or at least issues a deportation order. You are missing a critical piece of info in all of this. Ask your lawyer to find out exactly what is in his file. It is important.

I am sorry if you found any of the responses judgmental. I do not think anyone meant them that way. I just think there is some confusion about the marriage fraud charge (i.e. was he ever charged in the first AOS case or did they only charge the ex?) as well as the official reason for denial of the second case (again, was it officially for marriage fraud?) that make it hard to offer concrete advice. Furthermore, marriage fraud is a pretty serious charge and puts him in murky water as you proceed. However, it sounds like you realize this and are doing what you can. I am very glad you have a lawyer and wish you much luck.

Only she was charged with marriage fraud. He was never charged with it or asked about it or knew she had done time for it until two days before our interview. He really did not fully face this first marriage until now.

The official reason for the second denial (our interview) was that the first marriage was found to be fraudulent, so as long as that's out there, they would not really look at our application and consider it.

Sorry to hammer on this, but this is where it gets confusing. If only she was charged, implying that she entered the marriage fraudulently while he did not, why is it grounds for denial of his second AOS attempt through marriage to you? This is what makes me think that, while he may not have been charged in the sense of going to jail as she did, it is certainly on his immigration record in a way that is quite serious. The big question for me is if this is the case why there is not a deportation order against him. If there is not, maybe it is not on his record as marriage fraud but as something else??? The solution either way would be to do what you are currently doing, so maybe it is moot. But, if I were you I would want to know exactly what is noted in his immigration file and what his current status is. These are areas that I hope your lawyer is helping with. Again, I wish you much luck.

I am sorry if you found any of the responses judgmental. I do not think anyone meant them that way. I just think there is some confusion about the marriage fraud charge (i.e. was he ever charged in the first AOS case or did they only charge the ex?) as well as the official reason for denial of the second case (again, was it officially for marriage fraud?) that make it hard to offer concrete advice. Furthermore, marriage fraud is a pretty serious charge and puts him in murky water as you proceed. However, it sounds like you realize this and are doing what you can. I am very glad you have a lawyer and wish you much luck.

"Pending" is not the same as legal. If you enter legally (say on a K-1) and then go to adjust status you are not officially out of status during the "pending" process. But, if you are out of status when you file AOS, filing does not put you in status. You are in a pretty ambiguous spot in the meantime. Many people who are here illegally, marry a USC and then file the I-485 have been detained at their interview. Then again, I am coming from a MENA perspective and it may be the DHS chooses to excercize this option with MENA men more often than with those from other countries.

In this case, it is unclear what status the husband had before the first marriage and what his status is following the denial of both AOS attempts. But, if nothing has ever been approved, I would assume he is out of status.