I601 Waiver/Administrative Appeal (long)

[Flag1976]

Hi everyone,

I am new to this forum and I would really appreciate any feedback or advice that you could give me. My wife and I have been married since early 2004. She is living in Brazil and we have no children. Her I-130 was approved in March of 2004 and she had her interview at the US conculate in Rio de Janeiro with a few months of this. Her immigrant visa was denied due to the 10 year bar (she was accused of previously overstaying a tourist visa for over 1 year before we were married). At this time, I applied for the waiver. I was under the impression that all this waiver had to consist of was a letter explaining the difficulties that i would have if my wife were not allowed to come to the US. This waiver was denied in late 2005 by the Lima office, which said that I had failed to prove extreme hardship. I went to an attorney who was recommended by a friend. This attorney filed an appeal with the AAU, but all this appeal consisted of was a brief; he told me not to supply any supporting evidence. This was at the end of 2005.

Having not head anything on the appeal by May of 2007, I became nervous. I hired a new attorney. He decided that I should supplement my appeal while at the same time filing a new I-130 so that in the event that the appeal is denied, the process to schedule a new interview will have already been started. I think that the supplement to the appeal is strong. I have an 8 page affidavit describing my difficulties (financial, family, inability to advance in my career, difficulties I would encounter in relocating to Brazil etc.). I also have a 30 page psychological report diagnosing me with major depression and anxiety disorder, which are the result of my being separated from my wife). I am an only child of older parents and this is also documented. Additionally, I have traveled to visit my wife 15 times since we were married. I know that all of this should have been presented in the original waiver application, not in the appeal, but I was not aware of the process. I know that I should have done more research, but the consulate told me that all a waiver was was a written request by me to ask the government to permit my wife to enter the country.
Has anyone else been through a similar experience? Do you think that I have a reasonable chance of getting this appeal approved? Does the AAU accept supplemental evidence to an appeal that was filed so long ago? Or will my best shot lie in filing the new I-130, waiting for it to be denied, and filing a new waiver with the office in Lima? Should I get my senator involved? Please, any advice you could give me would be greatly appreciated. I have already lost nearly 4 years of time that I could have spent with my wife.

[Pinkpig]

Have you filed the new I-130? If so what is the status of the new I-130?

Did you also file the I-129f, because quite possibly that will get to Rio for a quicker interview than the I-130 winding through the NVC?

Have you tried contacting Rio and asking them if they will schedule you a new interview based on the old I-130 or if they want you to do an entirely new I-130? They are fairly good about answering their emails.

Palinurus has some experince with filing an appeal through Lima, then revoking the appeal and going with a new interview. I think she had to request that her appeal be dropped before she could file the new I-601.

Then others have been able to schedule a new interview with a new waiver without redoing the I-130.

I think that Rico (denied in Lima for not enough hardship) and Shrek (denied in Lima and wrongly charged with (9C) are both going through appeals in Rio.



IMHO: Bottom line probably would be to do the new filing I-130 and I-129f and go for a new interview in Rio, then submitting the very strong waiver package to Lima for adjudication, unless Rio will schedule a new interview based on the old I-130.

You might want to do a consult with Laurel Scott at visacentral.net to see what she thinks...she has had experience with Rio and Lima.

[jerrys]

this really sucks............

[Flag1976]

Thanks for your reply. I just filed the new I-130 about 3 weeks ago, with the Vermont office. That is a good idea to try contacting Rio and see if they will schedule a new interview with the old I-130 from 2004; I will do that but I could have sworn that I read they were only good for 2 years. I have never heard of an I-129 F, could you give me more info. on that? Thanks again!!!!

[Lulu]

I-130s don't expire since all they do is establish a qualifying relationship. It is valid as long as your marriage is. Definitely contact Rio about re-opening your case. The I-129F is for the K3 visa, which was designed as a non-immigrant visa to get your spouse in the US faster when I-130s take forever. They do generally go faster than I-130s, and get you faster interview dates. If Rio will give you an interview based on your original I-130, the K3 is irrelevant to you (since the I-130 is already approved). You may wish to file the K3 if you have to wait for the new I-130 (which you shouldn't have to do).

[blueblue]

I am sorry to hear of your situation. It is unbearable to keep hearing so many stories like this.

Based on your post, here are some things to consider. Some of these may not be relevant to your case but there is not enough information to determine from your post. But in case they are relevant, here they are:

Was the appeal filed in Lima within the 30 days (33 if mailed) deadline? You say it was denied in Lima in late 2005 and the appeal was filed at the end of 2005. If it was not filed within the 30 days deadline (at least the I-290B & fee) they may deny it as not timely filed.

I am assuming you still have not heard anything on the appeal. If it was filed end of 2005, that was 20 months ago now. The AAO says their 601 appeals are running at about 18 months. I would contact them at 202-272-1212, give them your A# and they can tell you a status of the case and they can also tell you if they got the additional evidence you sent in May. You should have heard something on the appeal by now.

Definately also contact your Senator or Congressman's office to make an inquiry for you. They many times can find out information or help unstuck things you can't do yourself, or even your attorney. Not a fix all, but certainly an important advocate in the process. Especially where you are now.

Lulu (cute baby!!) is right that the I-130 doesn't expire. However, some embassys still make you file a new one, just to be difficult (IMO). Contact yours to see if they will let you just file a new I601 on the same I-130.

When did your wife's 10 year ban start? When did she leave the US?

[Flag1976]

Hi, thanks for you post. We filed the appeal with this AAO in Washington, not in Lima. I actually did not sumbit the new evidence until last month, although I first met with the attorney in May. I figured that I would wait the 30 days and then call to confirm that they received it. I was not sure if they would even consider new evidence, but I figured that it was worth a try. Like I said, I also filed the new I-130 just in case. My guess is though, we stand a better chance with the new I-130, interview, waiver rather than through the appeal, which I understand is very hard to get a favorable decision on.
My wife's 10 year bar started in 2003.

[palinurus]

Hi, thanks for you post. We filed the appeal with this AAO in Washington, not in Lima. I actually did not sumbit the new evidence until last month, although I first met with the attorney in May. I figured that I would wait the 30 days and then call to confirm that they received it. I was not sure if they would even consider new evidence, but I figured that it was worth a try. Like I said, I also filed the new I-130 just in case. My guess is though, we stand a better chance with the new I-130, interview, waiver rather than through the appeal, which I understand is very hard to get a favorable decision on.
My wife's 10 year bar started in 2003.

You can call the AAO office and ask about your appeal as long as you have the case number. They are pretty nice and will return your call (at least they did mine). At the time we filed our appeal the wait time was 16 months. I called after 12 months and they told me another 9.

Lulu is correct you don't need to file a new I-130, you should simply be able to request an interview and refile your waiver.

As far as dropping the appeal I have conflicting info from different consulates, but the Lima office was very keen to make sure that we had withdrawn the appeal and I had to send them the AAO acknowledgement letter. Since you are going through Lima i'd say that's the case.

OK, whether to withdraw and file a new waiver or wait for the appeal is a tough decision. It took us a long time to make ours, and we had reason to believe that our new appeal would be stronger than the first so that's why we did it that way but your own circumstances will let you know what to do.

If I was you I would look at your denial letter, and review it to see if the decision was made outside of law, or recognized practices, caselaw. Your appeal is NOT about whether you have hardship, it is about whether you had the hardship in your waiver and the initial decision constituted abuse of power. Check your submissions to make sure that this is what you are arguing.

hope this bit of info helps. We are just now waiting to hear from Lima about our 2nd waiver (fingers crossed).

P