Unlawful Presence? Help!!!

[lauren32983]

I apologize if this is in the wrong place...(and that it is so long!)

Ok, my husband's situation is very complicated. We are currently at the NVC(Our I-130 was approved 2/08), I was told that the AOS Form was generated on 3/24 and the IV Application was generated on 3/31, yet I still haven't received anything in the mail. So I am trying to prep us for the interview which will hopefully be sometime in the next 2 months. Anyways~

My husband entered in 1989 on an F-1 student visa that was marked with the D/S. He never went to school, and did work(he has a valid SSN as well) He married his first wife in June 1997, and she filed an I-130 a few months later. He returned to visit his family in summer of 1998 on Advance Parole, which was marked AOS. (I am assuming this is because they had a pending I-130 and most likely a 485) He re-entered the U.S. in 1998 on this Advance Parole. They divorced in 2001 (divorce final 3/2002). I am almost positive that the I-130 was approved but that she then later revoked the petition. When she revoked the petition she also called INS on him and had him pickled up while visiting their daughter. He spent 2 weeks in detention in Kenosha, WI and was released after posting $10,000 bond.(Alos why wouldn't they have just deported him then?) From that time in 2002 he has been constantly under proceedings attempting various appeals. There was never a point where him and his lawyer were not appealing, definitely not more than 180 days (under proceedings). In April 2007 the IJ granted him Voluntary Departure, which he complied with and is now in Jordan (I am here with him for now). A big problem with this case was why did the INS grant him the Advance Parole? If he was illegal at this point in 98? When would unlawful presence begin accruing if re-entry was with Advance Parole based on AOS?

I am concerned as to whether the I-601 will be required as I would like to have it ready for the appointment at the consulate when the time comes. Also my lawyer wants $1500 to do the waiver packet and I don't know if this case is too complicated for me to do it myself if necessary, but I would hate to pay him and then end up not needing it. Also it would go through Athens or Rome if needed and would only be for this unlawful presence, which I am not even sure how to calculate? I thought I read that if you are under immigration proceedings that the time does not count towards unlawful presence?

Any advice would be greatly appreciated, I am very nervous and spend all my time reading this site, hours per day! Please help! I am going crazy in Jordan!!!

[JMRJ]

When she revoked the petition she also called INS on him and had him pickled up while visiting their daughter. He spent 2 weeks in detention in Kenosha, WI and was released after posting $10,000 bond.(Alos why wouldn't they have just deported him then?) From that time in 2002 he has been constantly under proceedings attempting various appeals. There was never a point where him and his lawyer were not appealing, definitely not more than 180 days (under proceedings). In April 2007 the IJ granted him Voluntary Departure, which he complied with and is now in Jordan (I am here with him for now). A big problem with this case was why did the INS grant him the Advance Parole? If he was illegal at this point in 98? When would unlawful presence begin accruing if re-entry was with Advance Parole based on AOS?

Right here. He started accruing unlawful presence after the Immigration found out that he was out of status up to the time he was granted the Voluntary Departure because D/S requires a formal finding of status violation from the DHS or IJ. In your case, you will need the I-601 waiver because the period between the finding of DHS and the grant of V/D is more than 181 days.


(II) Alien admitted for duration of status,
violates status, e.g., by working without
authorization, is out of status for any
period of
time, applies for a change of status (COS),
which INS denies on the ground that alien was
out of status. Unlawful presence
begins to accrue on the date of the denial.

V) Same facts as (II), but removal
proceedings are instituted after INS's denial
of COS, IJ agrees that alien violated status
and
grants V/D (with alternate order of removal)
180 days or less after the denial of COS: not
subject to 9B (period between INS
decision to deny COS and IJ's grant of V/D
counts as unlawful presence, but period was
less than 181 days,
http://immigrate2us.net/forum/showthread.php?t=130 (http://immigrate2us.net/forum/showthread.php?t=130)


I thought I read that if you are under immigration proceedings that the time does not count towards unlawful presence?


Not in this situation. After the grant of V/D, the clock stopped from accruing unlawful presence but it did not cure the unlawful presence he already accumulated.

Just to add, compile lots of evidence to prove the bona fide relationship, he may be scrutinized more closely due to his previous marriage.

But I am beyond my paygrade to give legal advice so consult Laurel or Heather.

[lauren32983]

Thanks for the info...His case is very complicated, after 6 years of appeals and such. We are already expecting a lot of scrutiny because of his past problems. If anyone knows who will be moderating Laurel's chat maybe you could let me know so I could send them my question for Wednesday?

[emt103c]

Proof of valid marriage should not be much of an issue with her living in Amman with him. . .should be pretty easy to get/prove.

I agree that you will need an I-601; based on information I've heard in the past, if the attorney thinks he's going to prepare a 601 for $1,500 he's probably not that experienced. A consultation with Laurel is not that expensive and I hear Heather Poole's consultation is free.

You could probably prepare the package on your own with all of the information available online. . .make sure to take a look at travel.state.gov and the CIA world factbook.

[lauren32983]

Thanks for your input. Yeah anyone who has been to Jordan knows that they wouldn't up and leave the U.S. to live here for any reason besides love! But pertaining the waiver, I don't know if I want to focus on being here for this extended time, I am worried they might think I am capable of living here for the long term, which I am NOT! But I just got accepted to my graduate program and it is a very good school (high tuition which will help this waiver case, but not me able to make it without my husband:( ) I will check out the CIA Factbook, already saw that the travel.state site basically says Jordan is not safe, good for my case!

[JMRJ]

You might want to talk to Laurel Scott to see what strong arguments you can use. They're strict.

Information on several CIS offices abroad

Rome – Unlikely to approve a case without at least one Level 2 argument. Response time to inquiries unknown. 6 months or more for a decision.


Athens – Traditionally this has been a very tough office to get an approval from, though it just received a new OIC. Extremely unlikely to approve case without at least one Level 2 argument, and at least one Level 1 argument preferred. Has been known to deny cases even with a Level 1 argument if the alien’s immigration history is especially complicated (e.g. multiple deportations and misrepresentations). If Counsel has the option to have the case adjudicated through another office (e.g. Iranian “homeless case”) then do so. It is advisable to not go through Athens if there is another option. Always investigate the option of having the client move to a country in Europe so that the waiver will not go through Athens. 12-14 months for a decision. CIS office assistants respond quickly to telephone inquiries.
http://www.immigrate2us.net/forum/showthread.php?t=1445&highlight=athens+rome

[emt103c]

Lauren: You focus on your living there for the interview to prove valid marriage. . .by documentation of you living there.

In the HSL and waiver packet you focus on the hardships. You can mention the hardships of your "stays" in Jordan, but focus on the dangers, etc. . . they are very independent of one another. . .they really don't pay attention to anything but your immigration record and packet when adjudicating a 601, just what is presented to them.

[Ginger]

When INS grants an affidavit of support , there is a tiny print on the back stating that if you have need present in the US after you visa expired you should not leave the country even thought an affidavit was granted.
This is what you need to find out:
- you husband came to the US but never went studying = he did not meet a requirements of his visa. Could there are be a problem because of that? Could illegal presents start from the day he did not enter the school ( as he suppose to)?’
- when you used an affidavit of support and then came back – most likely you will be told that he should not have done that, that the officer on the port of entry made a mistake letting him back. The question is – would it be considered re-entry after being illegally present in the country ( 10 years ban). If yes, he might be not eligible for the waiver ( if you re-enter the US when you have a ban you are not eligible for the waiver or need to wait for 10 years to apply for the wavier).
- When his first wife revoked his petition – what was the reason. If she put “marriage fraud” – he might have a very big troubles and not be eligible for the wavier for life.

I do not want you to be scared. You just need to find out all this info so it would be easier to help you on what to do next. I do think that you need a lawyer but you need a good one. There are plenty of people in this board ( myself including ) who have been misled by the lawyer, charged lots of money and led to even more troubles due to the bed advise.

Good luck to you and hopefully everything will workout for you.

[JMRJ]

When INS grants an affidavit of support , maybe you meant adjustment of status? here is a tiny print on the back stating that if you have need present in the US after you visa expired you should not leave the country even thought an affidavit was granted. This is what you need to find out:
- you husband came to the US but never went studying = he did not meet a requirements of his visa. Could there are be a problem because of that? Could illegal presents start from the day he did not enter the school ( as he suppose to)?’ probably misrepresentation but not illegal presence
- when you used an affidavit of support (Advance Parole) and then came back – most likely you will be told that he should not have done that, that the officer on the port of entry made a mistake letting him back. The question is – would it be considered re-entry after being illegally present in the country ( 10 years ban). If yes, he might be not eligible for the waiver ( if you re-enter the US when you have a ban you are not eligible for the waiver or need to wait for 10 years to apply for the wavier). Meaning 9C? It only applies to Entry without inspection (EWI) after a previous immigration violation.
- When his first wife revoked his petition – what was the reason. He no longer qualified for the visa petition because they divorced. If she put “marriage fraud” – he might have a very big troubles and not be eligible for the wavier for life. Lifetime bans with no immigrant waiver available apply to drug convictions aside from 30 grams of marijuana or less, espionage ,terrorist activities, false claim to U.S. citizenship, etc.- But not on this case.

[lauren32983]

I know the lawyer was arguing with the BIA judge about this Advance Parole issue. The judge was like he never should have been given the Advance Parole, and the lawyer said it was their error. I guess on the application there was a question that states are you currently under immigration proceedings. He answered no. And he wasn't. This was 8 years after he entered on the student visa and never attended school. Needless to say, it was the governments mistake even granting him the Advance Parole according to the immigration judge. And also their mistake letting him back into the country. But at that time he had a pending I-130 and AOS application. And he technically re-entered legally since it was Advance Parole. So I think our main issue will be the overstay on the Advance Parole? But the whole time he was in overstay he was technically under proceedings since he was in with the BIA. I thought I read somewhere that if you are under proceedings the time does not count towards the unlawful presence? Like if you have a pending AOS petition. And his petition was approved, then revoked. So that was the argument with the judge the whole time. So I wonder would it count since it was being appealed? I know it was misrepresentation for not attending school, but when he left in 98 on the Advance Parole does that go away? I know some stuff doesn't go away even if you leave the country, but I thought that was just for EWIs.

[jpaula]

I thought that if you were ever denied a visa due to marriage fraud you could never again receive immigration benefits based on marriage. Is this not true?

To the OP, I filed a waiver that was approved while I was living in Algeria with my husband. You can use the fact that you are living there to provide first hand evidence as to why your life is endangered by being there. Give detailed examples of your life there as compared to the US. If you write it well, I think it is actually more powerful than Travel Warnings (not that you shouldn't add them too). I took a leave from grad school to move to Algeria so, I had alot of lost education opportunity argument as well. Just start documenting it all and start writing down specifics about your experience there.

We have a memeber here who recently had a waiver approved while living in Jordan as well.

[lauren32983]

Thanks jpaula, yeah it is definitely rough here. I don't know if that is true about the fraud part. I mean they approved out I-130 and all. She was mad about the divorce, but he wasn't using her for the papers. They were married for 5 years. After she left him, he was in a serious state of depression and even tried committing suicide. But she is a vindictive person, and wanted him out of the U.S. so he wouldn't ever be able to see their daughter again. She made up a lot of lies about him. Would the INS look at it as fraud no matter what since she revoked the petition?

[JMRJ]

I thought that if you were ever denied a visa due to marriage fraud you could never again receive immigration benefits based on marriage. Is this not true?


If the marriage is not bona fide, you are not eligible to receive a visa based on that marriage and there is no recourse.

Lauren's husband's case is different. He was denied with the AOS because he got divorced with his ex-wife that's why he was sent back to his country. Lauren is pursuing a visa and an application for I-601 waiver based on her own marriage to her husband. His particular immigration history does not bar him for life to apply for the I-601 waiver.

[JMRJ]

But at that time he had a pending I-130 and AOS application. And he technically re-entered legally since it was Advance Parole. So I think our main issue will be the overstay on the Advance Parole? But the whole time he was in overstay he was technically under proceedings since he was in with the BIA. I thought I read somewhere that if you are under proceedings the time does not count towards the unlawful presence? Like if you have a pending AOS petition. And his petition was approved, then revoked
The Advance Parole was for the pending AOS application. The main issue was the accumulation of unlawful presence after his AOS was denied. The fact that he had an approved petition did not protect him from accruing unlawful presence after the finding of a status violation.

An approved petition is just that there is a visa number available to apply for the visa.

[monki12]

hi lauren, did you see laurel's reply? here it is..just in case.

monki12: From Luaren32983: My husband entered 1989 F-I D/S. Never attended school. Got married in 1997. Applied for I-130/AOS. Went to Jordan for 1 month in 7/98 on Advance Parole, marked AOS. Re-entered on Advance Parole. Got divorced in 2001. Ex-wife revoked petitions. They were approved but not finalized yet. Since she revoked them he attempted various arguments with BIA. Always under proceedings via appeals from 2001-2007. Granted Voluntary Departure in 6/2007. What bar applies, since he was under proceedings this whole time? Will these complications pose a problem for a waiver? I am currently in Jordan with him for now, our waiver would go through Athens.
Laurel: Sounds like fraud for coming in on a student visa and never attending school. That's a permanent bar, though there's a waiver. When his I-485 was denied, he began accumulating unlawful presence as there's no appeal to a denied I-485. He may have been appealing the revoked I-130. Anyway, looks like also more than a year unlawful presence. I think your biggest problem is that he came on a student visa and never attended school. If I were the adjudicator I would really frown on that.

I think you will need a waiver for the illegal presence and for the fraud, since he never went to school.....good luck.

[JMRJ]

Okay, that's what I thought in here too.

- you husband came to the US but never went studying = he did not meet a requirements of his visa. Could there are be a problem because of that? Could illegal presents start from the day he did not enter the school ( as he suppose to)?’ probably misrepresentation but not illegal presence

[lauren32983]

Thanks guys! Does the I-601 cover fraud or is that a different one?

[emt103c]

It's the I-601.

[monki12]

i think it does both...the i-601 waiver.....

[Ginger]

JMRJ, thank you for the correction. Of cause not an affidavit of support. I meant a tiny print on the back of Advance parole. I did hear about case when person left the country and was not permitted back even thought advance parole was given. The reason was: overstated, INS granted parole by mistake, you had to read everything that was written in the back. So, I guess it would be all depends on the officer ( how he/she would want to look at it).

As for the lifetime ban, when I left the country (overstay), I got 10 years ban for the overstay. I was told that IF I would try to come back to the US (legally-illegally), I would get a lifetime ban for that. This I was told at the embassy.

There was a story on this forum (before it crashed) on woman flying from Canada to Mexico. She had a 10 years ban and was waiting for the waiver to be approved. She had to change flights in the US. She got on the plane, had no intention to leave a transit zone. Upon arriving to the US, officer deported her back to Canada and told her that it considered intent to enter the US again (even thought she was only a transit passenger and they let her to board the plane in Canada) and told her that she has a lifetime ban.

It is all in the hands of the INS officers – if they would want to interpreter return with the advance parole as a second entry upon getting a ban – they would do that. I hope that they would not.

As for the INS mistake - well, I guess I am a live example that mistakes of the immigration service would be your mistake. I was told that I could stay in the country and “clock stopped” since my papers are in the proceeding. And I stayed. Oh well, 1.5 years later story was changed “yea, officer made a mistake, she should not have told you that……”. If I would have left the country (and not listen to the INS officer), we would not have to go thru the waiver and I would not have any ban. So, I guess, wherever they tell you – you have to double-check to make sure that they know what they are talking about.

As for the fraud- if his ex-wife reworked a petition due to the marriage fraud – well, that is the end of the road. Committed a marriage fraud = no way to adjust your status or get back to the US. If you are saying that she wanted him to be kicked out of the country – why knows what she told immigration service. In any way – does not heart to found out.

As for the I-130 being approved, in immigration right hand does not know what left does. They go by the book: (1) take money, (2) check papers (for the I-130), fingerprints,….. and so on. Only on the Interview they might tell you what’s up.
Again, giving you an example: we went to the greencard interview. Officer told me that I have to go to my country and have a greencard interview there. Meanwhile I can stay and wait till all papers ready, my status would not be illegal. 2 weeks from that day I got an invitation for the fingerprints, month after that – work permit. One year after that I applied for the work permit- fingerprinted again, went to get second time work permit- there immigration officer told me that I am illegal in the country. We were shocked and outraged. I was in the INS about 8 times after they “told me wrong that I am legally in the country” and NO ONE ever told me anything. That might tell you how big mess is there.

Of cause, those are the worst cases in area and that is why I am suggesting to find out all that details before starting paying for the waiver. If (hopefully not) your husband would not be able to get back to the country, might as well put money and efforts thinking on where else 2 of you can live and be happy.

[emt103c]

There was a story on this forum (before it crashed) on woman flying from Canada to Mexico. She had a 10 years ban and was waiting for the waiver to be approved. She had to change flights in the US. She got on the plane, had no intention to leave a transit zone. Upon arriving to the US, officer deported her back to Canada and told her that it considered intent to enter the US again (even thought she was only a transit passenger and they let her to board the plane in Canada) and told her that she has a lifetime ban.


This is another example of someone being given inaccurate information. She does not have a lifetime ban, because she did not attempt to enter without inspection. She was going through custums and at that time was sent back. Therefore she cannot be attempting to enter without inspection. I would be willing to bet if she were applying for a spousal visa with a good attorney the error would be corrected.

The sad thing is that since this was before the crash, it was probably during the transition period where transits without visas were first suspended by homeland security. . .she probably hadn't even figured out there was a change yet.

[lauren32983]

As for the fraud- if his ex-wife reworked a petition due to the marriage fraud – well, that is the end of the road. Committed a marriage fraud = no way to adjust your status or get back to the US. If you are saying that she wanted him to be kicked out of the country – why knows what she told immigration service. In any way – does not heart to found out.

As for the I-130 being approved, in immigration right hand does not know what left does. They go by the book: (1) take money, (2) check papers (for the I-130), fingerprints,….. and so on. Only on the Interview they might tell you what’s up.
Again, giving you an example: we went to the greencard interview. Officer told me that I have to go to my country and have a greencard interview there. Meanwhile I can stay and wait till all papers ready, my status would not be illegal. 2 weeks from that day I got an invitation for the fingerprints, month after that – work permit. One year after that I applied for the work permit- fingerprinted again, went to get second time work permit- there immigration officer told me that I am illegal in the country. We were shocked and outraged. I was in the INS about 8 times after they “told me wrong that I am legally in the country” and NO ONE ever told me anything. That might tell you how big mess is there.

Ok, I am a little confused. Laurel's post said that she would be most concerned about entering on a F-1/Never attending school....I don't think he was accused of marriage fraud either, so how would that be "the end of the road"? I am pretty much sure she told the INS a lot of bad stuff about my husband, but nobody has mentioned to me up until now that he is completely ineligible to re-enter because he committed "marriage fraud". He was appealing the revoked I-130 petition. I was under the impression that we would need the waiver, but it would only be for the unlawful presence and the possibility that Laurel brought up that the adjudicator would frown on him originally entering on a F-1 and not attending school. Could someone please clarify for me?