Petition denied!!!!

[DaughterinDistress]

I will really appreciate if any one can help me please.

My Sister in Florida, who is a US citizen, petitioned my Mother who is now in the Philippines for Family Based Immigrant Visa (I-130) but she just got denied for reason of overstaying 365 days or more. She voluntarily departed from the States without expense to the US government and without an order of removal or deportation having been entered(just to attend my wedding) in 2001.

When I went home about 3 years ago I tried to apply her a tourist visa so she could come back home to US with me even temporarily for few months just to visit but she was denied for reason of overstaying. The consul officer told us to apply again and she might get one next time so she did after a year and again she got denied for the same reason. Now, this 2nd consul officer told my Mom that the only way she could come here is through a Petition and that is the reason why we pursued her Petition but again she got denied for same reason: overstaying.

Why did they make us believe that only a Petition can bring her to the States? If the consul officers had only told us there is no way for her to come her because of her overstaying we would not have pursued the Petition.

Also, when does the 10 year bar begin and when can we apply again? But I really want her to come now as she is already 83 years old. Is there a way for me as her daughter and legal representative to do something for her to be able to come here? Can I appeal for the denial? Is there a waiver fo inadmissibility that can surely help her come here? And which is the best way to do right now??

PLEASE HELP!!!!! THANK YOU!!!!

[emt103c]

Okay, so my understanding is that you wish to bring your mother to the United States as an immigrant, and you filed an I-130 on her behalf? and, At the interview, she was denied for her overstay?

I am assuming they let you know that she is eligible for an I-601?

Most people do not realize until the last minute that an ineligibility must be overcome by a hardship waiver, the I-601. . .you have come to the right place. Take a look at the links above and all over the I-601 sections for information on how to complete the I-601 package. Your sister must prove that it would cause she (and you can count as well, I presume) extreme hardship if your mother is not allowed to move to the United States.

Please let me know if my presumptions are correct or clarify the question. I hope this helps.

Welcome!

[M&M]

Exactly what EMT said and one thing to add... the 10 year bar starts from when your mother left the US, so if that was in 2001, she's already served 7 years of it.

[douginguam]

a. My Sister in Florida, who is a US citizen, petitioned my Mother who is now in the Philippines for Family Based Immigrant Visa (I-130) but she just got denied for reason of overstaying 365 days or more.
VD not removal or deportation in 2001.

3 years ago her tourist visa - denied for reason of overstaying.
... we pursued her Petition but again she got denied for same reason: overstaying.

Why did they make us believe that only a Petition can bring her to the States? If the consul officers had only told us there is no way for her to come her because of her overstaying we would not have pursued the Petition.

When does the 10 year bar begin and when can we apply again?
PLEASE HELP!!!!! THANK YOU!!!!

DiD,
I am sorry to be the bearer of bad news about this. I feel for you and your mother. But you should get to the facts. Most of the information you have been given to date seems to be poorly based - and quite useless. Why consuls gave you bad information I do not know.
Immigration law suggests that you have been misled to start any of the actions you have so far taken, but worse it also says that you have no positive steps that you can take nor any recourse.

Your mother would have no chance at a (non-immigrant) tourist visa after the first visit becuase there was a strong indication that she was not likely to return to the Philippines (strong US based family ties and previous overstay)
This is covered under Section 214(b) which is part of the Immigration and Nationality Act (INA). It states: Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status... To qualify for a visitor or student visa, an applicant must meet the requirements of sections 101(a)(15)(B) or (F) of the INA respectively. Failure to do so will result in a refusal of a visa under INA 214(b). The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The law places this burden of proof on the applicant. (refer http://travel.state.gov/visa/frvi/denials/denials_1361.html ) Your mother would fail this test because of very strong US family ties and the earlier overstay.

However, filing the I-130 petition did not make much sense either. Your mother had a 10 year ban and your mothers I-130 petition had to be disallowed by USCIS becuase no waiver opportunity exists - waivers are strictly limited to spouse and children :-
From - 212(a)(9)(B)(v) Waiver.-The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause. refer - http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html (You are actually lucky they did not allow the process to go on further - it costs a further $500 to get to the visa denial stage)

When she can re-appply - that would be after 10 years has passed from the date of departure - 212(a)(9)(B)(II) a person who has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible. refer - http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html

Only a lawyer could give you counsel on anything further - but be careful of the sharks! (If the I-130 was filed by a lawyer, then you possibly already know one.)

I hope my answer doesn't make me sound harsh. I am only trying to help you get to the facts. From my viewpoint it is sad that the rules are so black and white - and so harsh. I wish you and your mother the best.

[Laura]

Doug is right - she is not eligible for a waiver of the 10-year ban unless she has a USC parent or spouse - a USC child is not a qualifying relative for the waiver. I'm sorry they didn't tell you anything, but they don't tell anyone anything. It would be interesting to know how much of the fees USCIS collects are for petitions that will never even have the possibility to be approved. I can imagine it's quite a hefty amount. If she left in 2001 though, you should be able to use the same petition for her in a couple more years and she should be able to get her residency, no waiver needed.

[emt103c]

I'm confused, I remember this debate went on before because of "easterlilly." Why are they letting her file a waiver when her son is her petitioner?

We all concurred that the law said one thing and the form another--at that point--but in the end they let her file the waiver. . .right?

[Laura]

Really? That's a mistake then. I don't remember easterlily's case but for sure the law only allows USC parents and spouses to be qualifying relatives for an unlawful presence waiver. I'm not sure if it's different if the waiver is for misrep or something else. That's the only possibility I can think of.

[Luckysprite]

According to Laurel's memo on the I-601, if it is a criminal waiver that is required than a child would be considered a qualifying relative.

It depends on the ground of inadmissibility. A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” whereas a waiver for criminal history (INA 212(h)) requires it to be established “that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.”

I am not familiar with easterlily's case either - but just clarifying who is considered a qualifying relative here for ... and perhaps it may have been a criminal waiver that was required and not necessarily one of unlawful presence?!?

[emt103c]

Okay, I found it here (http://immigrate2us.net/forum/showthread.php?t=12818). Post #30 explains my confusion. . .I believe it was asked in one of the chats too. . .the petitioner does not have to be the qualifying relative for the purposes of the 601, VERY CONFUSING. . .the son here did the petition, but the husband is who the waiver is based on.

[easterlilly]

My son is not my qualifying relative. He is my petitioner. Section 212(i) of the Immigration and Nationality Act which covers admission of immigrants excludable for fraud, states, in pertinent part:

The Attorney General may . . waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the Untied States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien . . . forgot to mention again that Immigration in the United States agreed with my lawyer argument that I did not commit fraud and thus did not require a waiver. Unfortunately, they issued the decision after I left the U.S voluntarily 2 years ago due to Exclusion. I overstayed in the US.
We are hoping the consulate will agree with my lawyer, as Immigration eventually did, that there should have been no need for me to file this waiver in the first place, since the Immigration Judge never found me guilty of fraud.
My papers is now at the NVC, hopefully will get an interview date.
Edit:
My USC husband submitted his hardship with a back of Social Worker evaluation, my two USC son, my USC parents...I hope this would help me get back to US with my family..

[momof1]

easterlilly how is it that your parents are USC and you are not? you don't have to answer. i'm just curious.

[easterlilly]

I was petitioned by my ex husband. I was disqualified from my father's petition because I got married early before the petitioned approved.

[Luckysprite]

easterlilly - thanks for your posts/replies/clarifications. Valuable information - and I just wanted to wish you good luck in your case!

[DaughterinDistress]

First off, I would like to thank all for your feedbacks... harsh sounding or not.. they are all appreciated!!! :cheerful:

Second off, let me clarify the story behind my Mom's Immigrant Visa denial:

On January 11, 1998, I accompanied by Beloved Mother to Florida, USA to visit my Sister. I left her in Florida and went back home to the Philippines. On November 17, 1998, I-130 Petition was filed by my Sister who is a US Citizen and for some reason the processing lagged for years and years... not sure if it was because my Sister failed to follow-up or if it was because she just waited for the immigration packages to arrive which did not due to Post Office delay or for some reason I don't know.

My Mother had to come back to the Philippines on April of 2001 to prepare for my forthcoming wedding then. I felt bad because if it was not for my wedding she would not have come back to the Philippines; however, the lawyer that was representing her then advised her that it was okay to overstay since a Petition was already filed on her behalf and that there will be no problem.

Then, in October of 2005 I went back to the Philippines to visit my Beloved Mother and I tried to apply a Non-Immigrant(Tourist) Visa for her so she could come back to the States with me. During the interview she was denied for reason of overstaying for more than 365 days. I asked the Consul who interviewed her how she can come to the US and got a reply to try applying again and we might get "lucky" on the next Consul and get a visa which she did in October of 2006 but then again she got denied for the same reason. That time the lady Consul was very nice and advised them not to try to re-apply for a Non-Immigrant(Tourist) Visa any more as she will NEVER be approved because of her overstaying and added that the only way she could come to the States is through a US Citizen relative Petition.

That was the reason why we pursued her Petition which had been pending for so many years and got re-opened because of us pursuing it. And yes we have gone through all the Final Stages of Petition Process which included Interview at the Philippine Embassy and Medical Examination. She was even immunized and was advised by the Doctor at St. Luke's that she will get another immunization when she gets to the States.

That is the reason why I am asking why they let us believe that the only way she could come to the States was through a US Citizen Relative Petition and why did they let her go through the Medical Examination if they will just deny her AGAIN for the same reason of overstaying! I CANNOT COMPREHEND this INHUMAN AND UNCARING PROCESS!!!

My Beloved Mother is already 82 years old.. she had NEVER been a liability to the US gov't even when she overstayed then and she will NEVER be a liability if they let her come her as I will be taking good care of her.

Is there no LENIENCY for old people like her? How about HUMANITARIAN REASON?

And since you guys said that the 10 year bar starts from the year she left the US which was in 2001 if we re-applied for her Petition in 3 years do we have to do it all over from the start or can we pick up from where we left of? And how sure it is that she won't be denied again for the same reason?

THANKS Y'ALL FOR THE VERY INFORMATIVE AND PROMPT FEEDBACKS. I TRULY APPRECIATE!!!
Edit:

Ooopsss I forgot to ask about the I-601... how can we prove hardship that they are talking about in that form??? I do not mind spending another close to $600 if there is 100% certainty it will be approved.

My Beloved Mother has already suffered too much emotional distress, pain and suffering because of this uncaring denial of her immigrant visa.

[emt103c]

DiD, it sounds like you must wait out the last few years of the ban. I am sorry that the attorney misled you, there are lots of them who have no idea what they are talking about.

The I-601 would have been presented as an option at the interview if she was eligible. For overstayers, adult children are not qualifying relatives for the I-601, it is IMO arbitrary that the law states this, but it does. When the time comes for the new petition, you will probably have to file a new one, though I am not sure. At that time it would be a good idea to contact USCIS to see if they still have it on file. At that point if they do you would file a form to have it transferred back to the embassy, if not, you would have to start all over with the I-130 again.

[douginguam]

First off, I would like to thank all for your feedbacks... harsh sounding or not.. they are all appreciated!!! :cheerful:

...why did they let her go through the Medical Examination if they will just deny her AGAIN for the same reason of overstaying! I CANNOT COMPREHEND this INHUMAN AND UNCARING PROCESS!!!

My Beloved Mother is already 82 years old.. she had NEVER been a liability to the US gov't even when she overstayed then and she will NEVER be a liability if they let her come her as I will be taking good care of her.

Is there no LENIENCY for old people like her? How about HUMANITARIAN REASON?

Ooopsss I forgot to ask about the I-601... how can we prove hardship that they are talking about in that form??? I do not mind spending another close to $600 if there is 100% certainty it will be approved.

My Beloved Mother has already suffered too much emotional distress, pain and suffering because of this uncaring denial of her immigrant visa.

DiD,
I think you'll find everyone here agrees that the immigration process is often cruel (you might read posts from neverending. She waited more than 3 years 3 months to be denied!). The process can also be blind and uncaring, stupid and compassionless and any other words you wish to add. It is also often quite unfair.

If you want to see something else heartless you might like to read about this Filipino family that are being deported after living in the states legally for 25 years - http://www.nytimes.com/2008/04/12/us/12naturalize.html# - it can all be ugly when run by a faceless beauracracy.

And, please be careful as the process can also be used for scamming - even by lawyers. There can be no guarantee of any approval, whether you pay $600 or $600,000. The law says an overstay waiver is available only to spouse and children.

Whatever you do, I wish you and your mother the very best of luck in this sometimes ugly game that is US Immigration.

[JandJ]

:sorry:

Good luck to you and your family!!

[DaughterinDistress]

I would like to thank you all for your feedbacks and thank you also for the good wishes.

I guess all I can do now is HOPE AND PRAY!!!!!

[easterlilly]

Hello,
I finally recieved my interview date which is on Sept 12, 2008, here in Manila consulate. I am very happy, excited, but nervouse. Finally after long almost 23 months of being away from my family, after my long battle to gain my status (16 years) , we are happy that it is moving on. I beleived some of you are wondering about my case. I myself was confused too. I thought I was deported ( I left US voluntarily on time at my own expense), then I found out I was not, I was relieved from Fraud case, but unfortunately I left the country.Mt lawyer is hoping that I will not be needing a waiver.. but I have ready in my hand, in case the consul would ask me to file one.. I will bring it with me on my interview and would file it right away if I will be require to do so.
My USC son file a petition base on category IR5-Parent of US citizen.
I am excited and hoping to be reunited with my family this christmass. Please pray for us and those who are in the midst of trials and pains. God knows His plans for us not to harm us but to prosper us , to give us hope and the future..Jer 29:11
I need advice, guide and opinion what to do from this day on, do I need to get medical now, police clearance, pay visa ..etc..etc... it will be much appreciated ... :waiting::waiting::waiting::waiting::waiting::wait ing::khappy::khappy::khappy::khappy::khappy::khapp y:
I will keep you posted...

[simply-heartfelt]

Good Luck!!!!!