limegreenbowler

11 hours ago, Family said:

Your point is valid…see if you can find some recently litigated cases in the various circuits. ..I am not current 

Off the top of my head, I know if a beneficiary married then later divorced they were able to get F 2B visa ….all disclosed at NVC and interview…so no funny business. I know it DID , but don’t know what position consulates take now

 

I think in those cases you'd either see an annulment or some other legal finding that the marriage was never valid to begin with, and I imagine that government lawyers looked at the case and said this was an exception that met the law. I think the distinction between law and regulation in this case is a little silly--the law is written in broad strokes and cannot account for every eventuality, and in our system it's up to executive branch agencies to write regulations about how to implement the law. In this particular case, given that there is no provision for married sons or daughters of LPRs to have a category of their own (whereas there are for adult children of citizens), a clear reading of the law indicates there was no intent by Congress for them to be able to immigrate, and so the petition in cancelled. Any applicant would be able to litigate this, but given that they're going against more than 50 years of the law as implemented, I don't think there's any chance of success.

3 minutes ago, limegreenbowler said:

The law is not silent on this issue. The law for automatic revocation is in 8 CFR 205.1(a): https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-205/section-205.1

§ 205.1 Automatic revocation.

(a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval:

 

(I) Upon the marriage of a person accorded status as a son or daughter of a lawful permanent resident alien under section 203(a)(2) of the Act.

And this exact scenario is outlined in the Adjudicator's Field Manual (the new Policy Manual isn't fully online yet, but this guidance still stands): https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm21-external.pdf 

Review automatic revocation on p. 68:

The grounds for automatic revocation are set forth in 8 CFR 205.1(a) . Officers should be familiar with each of the events spelled out in the regulation. Under each of these grounds, the revocation is automatic when the specified events occurs, regardless of whether USCIS is aware of its occurrence or not, and regardless of when (or even whether) USCIS provides notification of the revocation. For example, if an alien who is the beneficiary of an approved 2nd preference visa petition as the unmarried son or daughter of a lawful permanent resident marries before immigrating to the United States or adjusting status, the petition’s approval is revoked. It should be noted that although it is the event of the marriage which triggers the revocation, the revocation itself is as of the date of the petition’s approval (in automatic revocation proceedings, revocation upon notice is different). Furthermore, because the petition’s approval has been revoked, it does not become valid again if the marriage of the beneficiary is terminated through divorce or death of the beneficiary’s spouse. (However, if the marriage is annulled by a court of competent authority, the legal effect is that the marriage never occurred and therefore, neither did the revocation.) 

14 hours ago, NEO2023 said:

INA 203(a)(2)(B) says that for the petition to be valid, your brother should be unmarried, which your brother satisfied in 2016. In addition to that, AFAIK, law is silent about what happens while waiting for visa. Since he is currently unmarried, I don't think there will be any problem with his interview. 

This isn't true, unless the parent naturalized before the son got married, as there is no category for married children of permanent residents. Adult children of citizens can move between F1 and F3, but as some others have pointed out, the petition was voided when he got married, even if he subsequently got divorced. The parent will need to file a new petition, and the old PD cannot be maintained.

18 minutes ago, Blandben said:

 That is the other thing that came up this weekend - I just assumed that after 20 years (and with the altered ESTA question) it was all processed. 

It's more of a mess than I realised.  This would be better if the ESTA question was clearer.   

The ESTA criminal question (unlike the drug one) is unclear enough that you will probably be ok here, but it's a question you should be prepared to answer. 

A UK conviction that is spent after ten years is still considered a conviction for U.S. immigration purposes. You will need to disclose this on your DS-160 and bring your ACRO police certificate to the interview. If your ACRO shows no live trace, they will ask you to bring the stepped down information. If you are ineligible, an officer may recommend a waiver for you (or they may not--it's at their discretion), but waivers do take about nine months to process.

If you have been traveling on ESTA without disclosing this, you open yourself up to an additional inadmissibility for misrepresentation. 

You should probably talk about this with the company's (or your own) attorney.

2 hours ago, jan22 said:

Another option is to ask the Embassy if they will accept you submitting the I-130 for the baby as soon as he/she is born and you have the birth certificate or at your family's visa interview if born by then.   Then they can issue the immigrant visa for the baby at the same time or very shortly thereafter.

This isn't an official reason for filing an I-130 directly at the embassy (bypassing USCIS), but some embassies do use their discretionary authority to allow this to be done in exactly this situation. I am not sure about London.

4 minutes ago, Boiler said:

If it was me

 

What sort of conversation did you have with the CO about this.

 

Were there others you worked with who wee on a J1, were they subject to 212e

 

Have you spoken to your Uni

 

 

If OP is on the skills list and it was missed before (not uncommon, unfortunately), it’s better that it’s caught now. If he went to naturalize later and it was caught then and they determined his green card was issued in error, it would be a far worse situation. 

28 minutes ago, mohtim said:

Its funded by the University in US and my DS2019 clearly stated not subjective to 212e. 

But as someone else posted, this is not determinative. Are you on the EV skills list? If so, there’s a good chance someone missed it originally (especially if you’re not Irish but applied in Ireland, which has nothing on the list and so officers don’t look for it) but your current officer caught it. 

Who funded your program, and is your country and skill code on the Exchange Visitor Skills List? It’s possible a mistake was made before that the current consular officer caught. 

Even if her five year bar expires, working on a tourist visa will often lead to a finding of misrepresentation at the interview (it's very context dependent), which will require an I-601, but there's no way to know until the interview itself and no way to apply for an I-601 for this in advance.

4 hours ago, carmel34 said:

Complete the I-360, send to the appropriate USCIS lock box.  All the instructions, eligibility, and information you need are on the USCIS website:

 

https://www.uscis.gov/i-360

This is unnecessary. A spousal I-130 where the U.S. citizen spouse dies will automatically be converted to an I-360 at the consular interview. The beneficiary is also now exempt from the I-864 requirements and should bring an I-864W to the interview. 

The beneficiary can email either NVC or the consulate, depending on where the petition is,  to let them know, but this will be done automatically when they show up for the interview.

12 minutes ago, AV53 said:

my question is the waiting time, the F2b category takes 5 years!

PD  Jan 22, 2010

Approval   Feb 1st,  2010

Probably longer than 5 years, as the category is oversubscribed. You can check the Visa Bulletin each month, but between April 2022 and April 2023, F2B has not moved at all and is still at PDs of 22-SEP-15.

4 hours ago, SteveInBostonI130 said:

This is for F3, and the PD is current?

 

So the petition was filed sometime before Nov 2008, correct?

 

I would not have thought USCIS would approved the I-130 within a year.  Some hypothetical dates/numbers:

 

- PD Oct 2008.  

- I-130 approved Oct 2012.

- 22 yr old is actually 22 and 11 months.

- Subtract 4 years from the 22 year old, the CSPA age is 18 years 11 months.  Qualifies to be derivative

- The 26 year old:  CSPA age is 22, does not qualify as derivative.

 

 

The second part of CSPA is the "sought to acquire within one year" part, which for DOS generally means paying the IV fee within one year of the PD becoming current. This is what kills a lot of otherwise CSPA-eligible applicants.

4 hours ago, chioparis said:

Now that you mention it - I reached out to CDJ asking them how to request to file i130 there and save time.  

 

I was thinking about the job offer, but they do mention "adoption of a child" as an exceptional circumstance to file i130 there.

 

https://www.uscis.gov/policy-manual/volume-6-part-b-chapter-3

 

"Adoption of a child – A petitioner has adopted a child abroad and has an imminent need to depart the country. This type of case should only be considered if the petitioner has a full and final adoption decree on behalf of the child and the adoptive parent(s) has had legal custody of and jointly resided with the child for at least 2 years."

 

****still - it mentions imminent need - so maybe I still need the job offer as you mention.

"Imminent need" is rather vague, and the folks at CDJ have been known to be quite generous in allowing for local filing of an I-130 if you can prove you have the required two years of legal and physical custody along with the final adoption decree. Make sure you don't file anything with USCIS before you hear back from CDJ.

Without knowing all the details of your case, it's hard to say, but it sounds like the original officer made an error (likely finding you 9A1 instead of 9A2 or 9C1 instead of 9C2, or an ineligibility was missed). If you've been out of the US for 10 years, 9A1 would have expired, unless you were removed from the border twice, in which case you'd have a 20 year bar--this could be the problem. From their communications, it sounds like they think the I-212 is sufficient and you don't have any ineligibilities that require an I-601 but that the I-212 needs to be corrected to include all the ineligibilities. It seems like they are working with USCIS to correct this since they made they error, which is standard practice, but that processes takes a couple of months. You are right to have your Congressperson lean on them. Good luck!

2 hours ago, Family said:

You are right. In the old thread there was indication the attorney had drafted an I-601 but was holding out for the details of the the unnamed agency and allegations…hopefully he signs in again and reads your recommendation, if it hasn’t been filed. 
 

But I cannot think of a mechanism to take up anything w DHS now that so many years have past.
 

This is exactly right--there's no easy mechanism to challenge a nearly 20 year old finding by DHS. Normally, an attorney would raise these concerns during the waiver process, which USCIS would take into account and may just decide to remove the incorrect finding (without reimbursing the fee!). If there are discrepancies between what the lawyer says in the waiver application versus what USCIS can see about what actually happened, however, it increases the chances for waiver denial. For that reason, it's better just to file a straightforward waiver request--a decent attorney should have a 90% or higher approval rate for waivers where the qualifying relative is a US citizen spouse, and it just makes it easier and less complicated for everyone. 

The easiest course of action is just to get an I-601 and then continue with consular processing. If you believe the finding was made in error, the consulate cannot help you because DHS made it, and the State Department cannot overturn this--they have to defer to decisions made by other agencies, even if they believe them to be incorrect. If you truly believe there isn't more to the story and 6C1 was made in error, you need to take it up with DHS to have it removed. 

13 minutes ago, kvito28 said:

Thanks for the info. This is very helpful. I assumed parents' consent would be needed but did not know about the need for parents to travel as long as they authorized it. Makes sense though.

They can certainly try--it's not likely to hurt anything, and they should definitely have letters from the parents authorizing the trip as well as all the birth certificates that prove the relationship, but it's ultimately hard to see a consular officer approving a visa for a child's purely voluntary tourist trip without a parent or legal guardian--too much risk that anything bad that may happen will rebound back on that officer.

It's not an official rule, but most consulates will not issue a tourist visa to a minor child unless at least one of the child's parents has a visa. There are certainly exceptions if the child has a valid reason to go to the US without his or her parents, but a trip to Disney with the grandparents is unlikely to be one of them.

14 minutes ago, SkolVikes said:

What kind of rebuttal would in your eyes be acceptable?

That would be a better question for an attorney who has a lot of experience in consular processing and knows the details of their case, but in general, a rebuttal would need to convince the officer that they legitimately entered as tourists and that something happened to cause them to violate their status within the first 90 days. 

Immediate relatives applying through consular processing are absolutely subject to the 90 day rule. Nothing in any of the FAM sections posted has indicated anything to the contrary. However, in order to make a finding under the 90 day rule, the officer must present the applicant with finding and give them the opportunity to rebut during the interview. The officer does not have to accept the rebuttal. It's possible that the officer did not do this and your parents are getting a second interview to give them an opportunity to rebut the presumption of misrepresentation. If their rebuttals are not accepted, they'll just get the same finding. But honestly, none of us can say until the interview. I am also curious to hear how this goes.