need help from I-212's and I-601's

[Felipe]

Grettings everyone:
I'm a citizien from Colombia, strugling to get back to my wife and my life (you all know how it is) I was deported in March 2006. Immigration states I stayed illegally but the fact is my assylum case was pending for a veredict at the US 5th court of appeals and still they deported me.
My I-130(my wife filed it since May 2003) was finally approved in October 2006 so I went to my interview with the consul in April 2007, it went extremelly well but Immigration denied the I-212. The reason they give me is that the time my case was on appeal before the federal court still counts as unlawful presence! it makes no sense to me but the give me two options:
To appeal the I-212 deicsion or to file the I-601

I would apreciate sincere, honest advice from you guys.

Thanks so much for your answer

[corazoncita]

Which option has a shorter processing time? Do you have strong hardships?

[Lulu]

I'm confused. Why was your asylum case pending at the US 5th court of appeals? Why wasn't it pending with an immigration court? If your case belonged there (and I will assume it did), was the appeal filed on time (within 30 days of the denial)? This is very important. If not, your case was not appealable, and therefore you started accruing time in unlawful presence from the time your case was originally denied and your voluntary departure ran out.

Where was the I-212 filed, in the US before your interview in Bogota, or in Bogota following the interview? What type of evidence did you submit with it? With the I-212, the favorable factors have to outweigh the unfavorable ones. In your case, that may not be difficult as you have USC family and honestly believed you were lawfully present in the US because of the pending case. But for an I-601, you will have to prove extreme hardship to your wife.

I also don't understand why they gave you the options they did. If they have determined that you were unlawfully present and have a 10-year bar, then you MUST file the I-601 AND the I-212 TOGETHER, with the consulate in Bogota. They will be decided together. In that case, the I-601 is decided first, and if approved, the I-212 is approved as well.

[mahmed01]

I completely agree with LULU, 'cause they should have given the only appropriate option that is left for u. First, we all know that u would be denied due to unlawful presence. So, since ur I-130 is approved, they should give u both I-212 and I-601. And why they said ur assylum case is pending? Didn't it end with ur deportation? May be Lulu or someone would be better knowledgeable to shed light on this.
Good luck.

[allousa]

This is a similar case to ours. My husband had filed for Asylum as he is Palestinian and considered stateless. He was denied and appealed. It was during his appeal process that we met and got married. His appeal was pending for a year and a half. They approved our I-130 (May 2001) but would not grant AOS until the Asylum appeal was dismissed. The Atlanta regional office lost my husband's file. We had been waiting for a couple of years for resolution to this when my husband's mother became gravely ill. He flew home to be with her. We were not told by our attorney that my husband would not be allowed to re-enter for 10 years...even though his case was in pending status. Needless to say, he is not our attorney anymore.

We have since hired better legal counsel. The previous posters are correct in that the I-601 and I-212 should have been filed at the same time. Our attorney was very blunt about the fact that if CIS has any reason to believe that a person filed for Asylum under fradulent reasons, that would carry heavy weight in denying a 601 waiver. Having said that though, from what I've read about cases approved, reuniting families that have children is of high importance.

It is really hard to compare cases and timelines because each case has specific issues. Best of luck to you and everyone else struggling through this process. If it takes another few months for our waiver application to be ajudicated, we will be at the 4 year mark! Grrrrr!

[joy&pain]

My suggestion would be to call Bogota to schedule an appointment to submit your a new I-212 and the I-601. Get working on your Hardship Letter NOW (there are stickys all over the site with examples).

We filed our I-601 & I-212 in Bogota in May 2007 and were originally told 6-8 months wait. Now we're being told 8-12 months. The Waivers for Colombia are processed at the CIS office in Panama City, Panama. The sooner you submit, the better.

[Felipe]

Thanks a lot to everyone for your answers, I´m gonna try to answer some questions you all are asking me.
First I´gonna answer Lulu´s question: the assylum was dismissed by the Immigration court of appeals due to miscounsel from my attorney back then. (she forgot to file a brief!) So that court didn't actually denied it, then I hired another attorney who filed Stay of deportation, Motion to reopen and motion to reconsider, those all were deined. I got married to my girlfriend that same year and she filed the petition I-130, that was 2003.
After that, I appealed my case before the US fifth court of appeals (my only legal avenue left regarding the assylum case) 3 years later and with thw assylum case still waiting for a decision from the US Federal Fifth Court of Appeals they deported me. That was a week after my wife and I had the interview regarding the I-130 which went with no problem.
After I was deported Immigration lost my file for the I-130, it wasn´t until October '06 that they finally approved the I-130 (I was deported in March '06) I finally got schedulled for the interview regarding the I-130 on April 30th, 2007 but a congressman that is helping us suggested that my wife should go ahead and file the I-212 before the interview with the consul which she did a month before I went with the consul.
By the time I had the interview at the US embassy here in Bogota, I had already received the bad news regarding the I-212 denied, it was then when we realized that they were counting my unlawful presence since May 2003, In other words they were not taking into consideration the stay of deportation, motion to reopen, motion to reconsider and the appeal before the US Fifth Court, I must mention that through all those years I kept renewing my employment authorization! As a matter of fact when they deported me I had renewed the Employment authorization about 2 weeks before.
During the interview with the consul he kept asking me: ¨Why were you deported?, why were you deported?¨ he couldn´t believed and he had me at his window for almost one hour, he finally said to me: ¨Sr. had no reason to deny your visa but since immigration denied the I-212 my hands are tied¨.
So my wife immidiately sent to the congressman´s office, all kinds of correspondence proving the different legal actions I mentioned to you guys before, Immigration told the congressman´s office that they were gonna do an informal review of the dates and they said that was gonna take up to 90 days.
About 3 and a half months later, immigration stands on the decision based on the fact that the time that my case was before the US fifth court of appeals accrued as unlawful presence!! That throws me ´cause I did everything through the legal avenues.
So after the unformal review from immigration they leave me two options: To appeal the I-212 denial or to file the I-601 but It really bugs me to know if for real what they state about my unlawful presence is true. It´s fishy to me.

I Thank you guys for taking the time to read my long story but I guess it was necessary.
I got some news for you guys, I was able to contact the US embassy on the phone today(they normally don't hear anything regarding residence applications over the phone) and some nice lady toll me to buy a pin and to request an appointment with the consul to start the process of the I-601 if necessary.
I would appreciate I any of you guys can find out about the unlawfull presence thing, maybe from any immigration attorney.
Regarding hardship, well.. my wife is diabetic and she's at the point of taking subcutaneous inyections daily, I have no medical insurance to cover her in case she had to move, I just get by economically by teaching english. It hasn't been possible for me to get a job because in this contry you are too old after 35, besides she doesn´t speak the language and she has a teenage son who I love like my own child and he would be left by himself in case she had to move here, besides we're asking the mortgage company to get us in a forberance plans since we are behind in the house payment.

Well that my story guys, your comments are very welcomed and let´s hold up together.
Felipe

[allousa]

Felipe, they also considered my husband as overstaying his visa even though he had filed an appeal and a motion to dismiss the appeal after our I-130 had been approved. I wonder how many people are getting caught in this ridiculous situation.

It is my opinion that you will need to file a 601 as well.

I would strongly suggest that an attorney help you with the 601. Some people have had success doing it on their own, but the proof of hardship is key. I don't know much about the 601 process in the Americas as ours have been through Morocco and now Rome.

Good luck with this process.

[Felipe]

Thanks allousa for your advice, As you may understand, we have no sources to spend money in more attorneys, but the information my wife and I are getting from all of you guys it's been extremelly helpful.
I already requested an appointment with the consul at the US embassy here in Bogota, hopefully we'll file the I-601 then, I will kee you posted as the situation evolves.