Demise

Overstayed what, that is the main question. Secondary question is overstayed when. Ordinarily he will likely need an I-601 due to a 10 year ban for unlawful presence. It can be sought on either IR1 or K-1, the process basically looks the same as normal until the consular interview, where he'll have to go, get denied, then file I-601 with USCIS, then when I-601 is approved reschedule with the consulate, attend another interview and hopefully get the visa approved then. I wouldn't recommend trying to DIY a hardship waiver, tell your friend to get a lawyer, but ultimately, yeah it is possible. Now there are some cases where it doesn't apply and that's in cases where either you are admitted with no concrete expiration date and there's two groups where that's the case: 1. Admitted for "duration of status", I-94 instead of having an expiration date it'll just say "D/S" (F, J, and M nonimmigrants) 2. Not issued an I-94 to begin with (Canadian tourists, possibly some others?) Due to a quirk in the regulations the two groups above do not accrue unlawful presence until one of the following happens: 1. USCIS makes a formal finding that they're out of status, which only happens if they apply for something else and get denied. 2. IJ orders removal. Then it starts to count from the following day. So in case like this someone can overstay an F-1 for years, never apply for anything with USCIS and never end up in removal proceedings, leave, and not get banned. @Crazy Cat K-1s are eligible for the I-601.

Cursory - surface level. Now, I will just say it - I haven't naturalized yet, I haven't been to any naturalization appointments otherwise, I've been kinda on and off with this site since I got my green card, so I have no idea what it actually looks like on the ground. If you're worried bring a lawyer with you.

Gonna post my DM reply here just for the record: Just to add: For B21, BX1, B26, BX6 - you'd need to attach proof that ex naturalized more than 3 years ago. For Z14 you'd need to attach proof that ex is a citizen, has been a citizen for 3+ years, and proof that you were married. For IR1, IR6, IF6 following an I-751 battery/abuse waiver you'd need the I-751 approval notice stating as such. They shouldn't really ask more than cursory questions about the stuff in the prior VAWA.

Believe me, nothing is more grating than news reporting on something you are actually knowledgeable about. They conflate different terms constantly and rarely know anything about anything. Then again the average viewer of cable TV is a complete moron and their knowledge of immigration is limited to the fact that great grampa showed up at Ellis Island one day. That's also how the current president is able to go on TV and whine about illegal immigration due to a group that is unequivocally not illegal immigrants - you know, all the asylum seekers on the southern border who'd show up at the crossing, present themselves for admission, get paroled in, and remain legal while their asylum cases are working their way through the backlog. Hell, even the parole revocations don't magically make them illegal immigrants because pending asylum still makes you legal. However, yes DACA would've given her authorized stay but not much aside that. DACA AP is extremely iffy with an outstanding order, from the cases I've seen that'd normally result in getting detained coming back and you would ultimately get paroled back but you'd also end up also executing your removal order. If it's a normal order then in that case you can file for AOS and include an I-212, with in-absentia order then you've got a problem because the only way to get rid of that 5 year ban is to reopen the removal proceedings. They also won't give you a reopen just to seek an AP prospectively of future AOS. Also, I really don't trust the current administration to abide by grants of DACA. They've kidnapped a guy with an approved withholding of removal to the very country the withholding order said he is not to be deported to.

Strictly speaking #5 if you take VD for the period of VD only, otherwise #6. Still, in any case you have to remember that if you've been in US illegally to begin with you have to act accordingly. I originated from the DACA community so the question there wasn't "how do I stay above water" it was "I've already sunk, how do I resurface". There's the law as written (you shouldn't be here to begin with), law as applied (I-601A might not grant you any kind of legal presence, but it exists solely to let you stay in US while the waiver application is pending, I-130 might not grant you anything on its own but it makes getting rid of a final order easier, etc), and the reality - if you are already in a mess like this leaving will just give you two re-entry bans. Still, she's done the correct things given the circumstances: got petitioned as soon as legally able to and likely planned to do an I-601A on either F2A or IR since you can do it in either case. Now, I would never recommend that someone enter without inspection or otherwise violate the terms of their visa, but well, it already happened, and you have to act accordingly.

So, speaking from experience - they will interview you for a standalone I-130 if you were in removal proceedings previously (or pre-1997 proceedings). Regarding DACA - good question, some googlefu points to Alvarado being 42, so she'd be at the upper end of age eligibility. Still, it's iffy traveling on AP with a prior order. Still, you have to remember that most people aren't really well versed in immigration law, they know half of what their lawyer told them. It's also possible she didn't meet the education requirements or was just concerned about presenting herself to the government, finally there are people who just sleepwalk through life like that. Regarding the re-petition, I think that her husband petitioned for her shortly after becoming an LPR (in F2A), and then filed an amended I-130 after naturalizing, that then moved the petition from F2A to IR. Still, she was whisked away by ICE after an interview where the USCIS officer said that everything looks good and would likely approve the I-130. So it's less that it was approved at the time, more that absent ICE chicanery the whole thing could continue along. I guess the overall game plan was: 1. Attend the standalone interview for I-130 and get approved 2. Use the I-130 to reopen the old proceedings. 3. Get an admin closure to file I-601A 4. Get the I-601A approved. 5. Recalendar and then either terminate or take VD. 6. Attend the consular interview and get the IR1 visa.

Strictly speaking nothing legally prevents you from doing that, but it does look pretty suspicious. First VAWA got denied because you've de facto committed bigamy. Now, I won't pretend to be an expert on matrimonial law but divorce from the first marriage didn't cure the second one unless you've basically remarried with the second spouse after getting the divorce from the first (since the second was void from the start, so it never really existed). So yeah, that first VAWA denial was justified. Now you're married to a third spouse from whom you're trying to seek a second VAWA. Like, I don't think it's insurmountable but do get a good lawyer and be ready to questioned pretty heavily about the validities of the second and third marriage because they might try to hit you with a 204(c) (marriage fraud). For what it's worth, messy situations happen, legal mistakes happen (especially with countries that end up having multiple coexisting legal systems (e.g. civil, sharia, and tribal)), lightning might strike twice, but you will need to dot all the i's and cross all the t's, and likely convince USCIS that you were sure that you were divorced at time of the second marriage, and you didn't enter into the second and third just for papers.

You can. Just scan the yellow letter and attach it and a scan of I-485 receipt notice as evidence. Or alternatively if the system is faulty maybe it'd make more sense to just send in a paper application.

VAWA Cancellation of Removal (EOIR-42B) is subject to the 4,000/yr cap. VAWA Adjustment of Status (I-360/I-485) is either not subject to numerical caps or gets counted into F2B (depending if the spouse was a US Citizen or an Permanent Resident). Honestly, the best solution in this case would be to motion for a termination with the court and then file I-485 with USCIS. Second alternative is to file I-485 with the court, you first file just the form I-485 (and possibly filing fee, not sure if they want one) with USCIS's Irving, TX lockbox. They will issue you a receipt notice. Then you take the receipt notice and file the I-485 and all related documentation with the court. Then the actual review of the I-485 will happen in court during an individual hearing, with the judge issuing a decision on the I-485. Then once a judge approves it, you wait a few days, schedule an infopass appointment, bring the judge's order and the I-485 receipt notice to the infopass, they will mark off the I-485 as approved, and print you your green card. Either way, Cancellation of Removal is likely heavily backlogged, so going via I-485 with either USCIS or the court will be faster.

You mention just the I-130 so I presume that it was a consular processing case, in case of which you or she should write to the consulate in question that the I-212 was approved, include a copy of the notice, and ask that they schedule her for another interview. This case should not be subject to automatic termination due to not doing anything with it for over 1 year (INA 203(g)) because the refusal reason was due to an admissibility (9 FAM 503.13-2(a)(2)(b)(8)). In the unlikely event that the case was sent back to the USCIS you should check on their website to make sure that it didn't otherwise get revoked and file I-824 seeking to have it sent back to the NVC.

Honestly in general I'd recommend just avoiding unnecessary travel until you have the green card in hand, however Matter of Arrabally (BIA, 2012) remains controlling and travel on AP doesn't trigger unlawful presence related re-entry bans. Only real concerning scenario that could happen is the current administration trying another blanket ban if you're from one of the countries they don't like (like the prior muslim ban) since those did exempt permanent residents but were completely silent on those in possession of advance parole.

First and foremost you should have her file a FOIA with CBP to see what exactly happened there, basically did they give her an expedited removal or did they have her withdraw her admission and depart on her own. First one comes with the 5 year ban, second comes with no ban. Now, it's unlikely that the consulate got it wrong, but you never know. I do question the 212(a)(7)(A)(i)(I) as that's more of a "didn't have the correct documents" bar to entry, though I guess it could be applied as "you are likely to work in US, but you don't have the right visa for that". On the bright side that's something that doesn't come with any further time bans on its own. So basically do the FOIA and see what falls out. If she was allowed to depart on her own then you'll want to schedule another appointment with the embassy and bring proof of that. If not then write to the embassy at least once a year asking that they keep the case open and she'll plan to immigrate after October 2026 when her 5 year ban expires. I don't see a misrep (212(a)(6)(C)(i)) anywhere here. While it's a good question if a misrep happened anywhere in the process doesn't seem like the consulate decided to slap her with that.

So those things are similar but unrelated and can run at the same time. In removal proceedings seeking VAWA you've generally got two options and you can both: You can file I-360 with USCIS and file I-485 with the court. Jurisdiction over I-360 always rests with USCIS. Jurisdiction over I-485 rests either with USCIS (not in removal proceedings or not in pre-1997 deportation proceedings) or with the Immigration court (if in removal/deportation proceedings). You can also file EOIR-42B to seek cancellation of removal, which is what you've done in this case. Now, both of these have similar but not identical requirements, cancellation of removal for example lets you get around the 2 year deadline to file after death/divorce, it also allows you to seek adjustment even if you were never married to the abuser as long as you have a child together, cancellation of removal also requires a finding of extreme hardship with VAWA cases. So what now, well you've got a few options: 1. You can file I-485 with the court, refer to this instruction sheet: https://www.uscis.gov/sites/default/files/document/legal-docs/DEFA-pre-order-instructions.pdf or, 2. Alternatively if you don't mind abandoning the EOIR-42B you can file a motion to terminate with the immigration court, and if you get that then removal proceedings will end and you can just file I-485 with USCIS. To answer this directly, no that's not exactly correct. I-360/I-485 and EOIR-42B are two different processes, both result in a green card but they're independent from each other. There is no requirement for you have a pending EOIR-42B to file I-485 with the court. Nor does an EOIR-42B require an I-485, if an EOIR-42B is approved then that approval will result directly in an issuance of a green card.

Hey so I wasn't able to get a copy of their denial notice but I got this reply from the person in question (K-2 who tried DACA AP to wipe the original K-2 entry): "I got the denial notice. USCIS basically wrote me a denial letter saying DACA is not valid immigration status, and going back to the states with AP does not overwrite the legal entry of K-2, so they rejected my AOS application." So, ngl, still not sure what the best course of action is here. Try to AOS and if that fails be ready to do I-824, once that's approved pay for DS-260, then file I-601A, then once I-601A is approved file DS-260.

It's a bit more complicated than that. It doesn't protect you on its own, but in absence of other options you can make a request for deferred action.