emt103c

You have been allowed to withdraw your application for admission, it means that yes you are "flagged" in the system, but only to the extent that they are going to expect extra proof and you might be subject to a little extra scrutiny when travelling. The type of proof you will need could be a copy of a mortgage or lease, a copy of proof of employment including a letter from your employer and a recent pay stub--something showing that your are expected back. It could be proof of school enrollment also. You must make sure to also have proof of how you intend to return.
If I were you I would be prepared with this even past the six month mark, just to be safe. The next step is expedited removal and since you have done nothing wrong it would be sad for that to happen just because you didn't play it safe. Expedited Removal carries a five year ban that really stays with you permanently. . .
The "Withdrawal of Application for Admission" refers to your "inspection." Each time you try to cross the border is considered an "Application" for admission.

This does require a 212 if it was an "Expedited Removal" if you were actually removed, and an "A-number" created. This incurs 212(a)(9)(A)(i) as a previously removed person.
My husband has this, so I've done a lot of research. On immigrate2us.net there is a very helpful article on I-212's that says if you were denied entry as a VWP and not technically deported, which could be you depending on your specifics since you said you applied as VWP, that the 212 does not have to be filed. It all depends on what was filed about you, you should have been given copies of everything.
As for the "after 1 year" don't file this instruction on the form....this caused me not to file it as well, and then I was advised by an attorney that that instruction is "rubbish"...a very disappointing realization. My interview is in February, I guess I get to find out for sure. Let me know if you want to share research information.

Actually, IF, you have confirmation from a good legal source who has reviewed all aspects of your case and determines that you do not have any other ineligibilities, you could file the I-130, get the receipt and then mail in the 212 to the appropriate USCIS office. But, before doing this, you want a reliable legal consult from an experienced 212 lawyer. IF, however, you need the 601 you will have to wait for the denial and file the two together.

You do not have to wait a year to file it, but not because of that section. . .that section is referring to people with an outstanding deportation order while still within the US so that they can file a petition under 245i (a section of law for people with pending petitions before 2001. . . who now have a higher priority approveable petition. . . )
Anyway, what you specifically need to do is consult with an attorney (Laurel Scott or Matthew Kolken or any other REALLY experienced attorney in waivers and 212 ineligibility) and make sure that after you've gone over your case thoroughly that you are certain he will not need a 601. Even before that you can go ahead and let the I-130 be running its course. If the attorney agrees that you do not need a 601, then the 212 will be filed with the district office over the area of deportation. There is a lot of information on the 212 at www.immigrate2us.net. It is a pretty involved petition and the instructions do not cover all of the evidence you need to submit, but the adjudication process outlines it pretty well and that is posted at I2US.
If you start early enough, the 212 could be completed before you even get to the interview or soon thereafter. The faster, the better.
Good luck!

Voluntary Departure. . .which is a long shot given the Visa Waiver status, but with an attorney, stranger things have happened. Best case scenario, beg forgiveness and get the heck out of Dodge, WITHOUT a deportation, *with* is okay, but without is sooooo much better.

The above is the only post out of 5 pages that you need to read. . . .
5 years is an Expedited Removal. Your interview will not even come for almost a year (8-10 months most likely), and then the waiver will take another year (12-13 months is the most frequent amount of time, some are much quicker but are EXTREME outliers.)
As momof1 mentions, there is a Montreal Advisory Opinion that says you do not actually technically have an overstay, and under that Advisory Opinion, which you can get a lawyer to try to have applied (Matthew Kolken claims some success in this venture. . .) then you'd only have to file the I-212 and could file it before the interview, chopping off MONTHS of processing time on a 601. . . .and taking away the extreme hardship burden.
Soooooo while you make up your mind what to do, why don't you consult with Matthew Kolken and let him know about your situation. You should also go ahead and get started on the I-130 on your own. . .
Good luck.

If he ends up with only a deportation, the 212 gets filed at the area over deportation.
Immigration law is federal, DO NOT just accept any attorney because they happen to be close. There are a LOT of realy scummy immigration lawyers out there, be very careful in who you hire and ALWAYS research whatever they tell you. Your case will never be as important to them as it is to you.

If he ends up with only a deportation, the 212 gets filed at the area over deportation.
Immigration law is federal, DO NOT just accept any attorney because they happen to be close. There are a LOT of realy scummy immigration lawyers out there, be very careful in who you hire and ALWAYS research whatever they tell you. Your case will never be as important to them as it is to you.

In this case, the EWI would make no difference. If the overstay is less than six months, there is no ban. . .even if there were, from 180 days to 364 days is only a 3 year ban, and since she's been outside the US for almost three years now. . .at three years, that would expire. . . .
You need to write a letter using the approval letter from USCIS as your documentation. You need to quote the INA 212a9b to them and quote the dates of illegal presence. Write it as a legal letter. Send a copy to the Consular Section, and to the director of the Embassy. You also need to get your Senate and/or House immigration liaisons to write a letter of support for your letter. If the information you present here is complete and accurate, you are in the right and they have made an error. You have to make yourself heard. . .be professional and direct in the letter. . .be humble and deferential, but make sure that they know that you understand the law.

It is REEEEEALY off topic for this thread, but this statement is not accurate. False claim of citizenship is one section of the statute and there is a completely separate section for Misrepresentations of all types. . . .false claim to USC happens MUCH less often than Misrep in general.
. . .and YES, the officers at the POE can call anything they want, ANYTHING, Misrepresentation. Since there is no judicial review, and no appeal process, there is no accountability. It is actually quite antithetical to the values of the United States government's system of checks and balances. . . .