Ten Year Ban [Archive] - Immigrate2US.net

Blackout76

06-30-2007, 08:36 PM

I posted something this morning but had to go to work so i made it very brief.

I am new to Immigrate2us and i have found it in good time because i am about to have a nervous breakdown, I would really love for someone to help and advise me because the reality of my wife and children not being able to come to the U.S is just settling into my system, My heart is pounding and my feel like having a heart attack.

I filed a 1130 here in the U.S for my wife in 1999 and she overstayed until Oct 2004. (Should have sent her back but we had problems with inlawsso she stayed)

Oct 11 2004 we left the U.S.A with 2 U.S born children,(Big mistake)
As soon as we leave we get an approval notice from uscis.. (what luck, should have waited another 3 months).

Went through the whole immigration process and reached the Interview.
Wife got denied immigration visa and had to file I601 waiver.

I wrote the damn thing myself because i did not want to spend anymore money on attorneys..

We got denied the Visa on the 28th July 2007.

At first i thought i could suck it up but now i am worried..especially when someone told me i should have wrote about the USC children on the I601.

What do i do..?
Do i Appeal or re-file..

Also, i became eligible to apply for Citizenship 5 years ago and applied in Feb..
How long wouldthat take...

If anyone can tell me what is going on i will feel much better...

Pinkpig

06-30-2007, 08:55 PM

Hi Blackout76,

Welcome to the site. I am so sorry for your suffering. Take a deep breath and please do not have a heart attack right here on the site.

There are many folks here who may be able to help you but first you need to supply a bit more information.

"We got denied the Visa on the 28th July 2007." (What is the correct date of denial? Would it be June 28, 2007?)

"Also, i became eligible to apply for Citizenship 5 years ago and applied in Feb..
How long wouldthat take..." (http://www.uscis.gov/files/article/M-476.pdf 13. How long will it take to become naturalized?
The time it takes to be naturalized varies by location. USCIS is continuing to
modernize and improve the naturalization process and would like to decrease the
time it takes to an average of 6 months after the Form N-400 is filed. 15. How do I find out the status of my naturalization application?
You may check the status of your naturalization application by visiting
www.uscis.gov or by calling Customer Service at 1-800-375-5283
(TTY: 1-800-767-1833).)

"What do i do..?
Do i Appeal or re-file.." (This may depend on what country you filed in and why you were denied. Did I read that you filed in London? Why were you denied?)

Here is a bit of information that you may want to read about denial/re-file/appeal: http://immigrate2us.net/forum/showthread.php?t=100

Can denials to Applications for Waiver of Ground of Excludability be appealed?
An appeal following an administrative denial to an Application for Waiver of Ground of Excludability must be made to the Administrative Appeals Office (AAO). It must be filed within 30 days of the date of the denial. Note that it is possible to fee-in-amend-alter with the appeal. In such a case it is necessary to submit the I-290B and filing fee within 30 days of the denial (33 if mailed), but on the form there’s a box that can be checked indicating that the representing attorney will send the brief directly to the Administrative Appeals Office within 30 days. Appeals are currently taking 14-16 months. As the waiver decision is discretionary, it is very difficult to win an appeal. AAO discourages new arguments being presented on appeal that were not in the original I-601 packet, but new or ‘updated’ evidence is generally acceptable. In the appeal it is best to argue one or more of the following: (a) Abuse of Discretion, (b) Mistake of Law, or (c) Mistake of Fact. You are not explaining why the client’s case meets the definition of extreme hardship; you are explaining why no reasonable person could have found that the client’s case doesn’t meet the definition of extreme hardship. Those are two very different things. The focus of any I-601 packet is the facts of the case. The focus of an I-601 appeal is the law and what lies within and without the parameters of the adjudicator’s discretion. The I-601 appeal is NOT merely a submission of a stronger I-601 packet.

Due to the lengthy processing time and low chance of success, consider refilling a de novo I-601 packet instead, especially if the client attempted the first I-601 pro se and it is clear that a better packet can be compiled. The law is unclear on whether it is possible to file a de novo I-601 based on the same immigrant visa or K visa case. Some consulates will allow simply re-filing, but most will require starting over with a new visa petition. Most of the consulates within the jurisdictional area of the Vienna USCIS office will allow a re-filing of the I-601 without a new petition. Always inquire to be sure. Even starting over with a new immigrant visa petition will typically get a decision faster than an appeal. Also, having to start over with a new visa petition allows time to put together a better waiver packet. The process will allow for several months, rather than the 30-60 days given for preparing an appeal.

For an in-country I-601 denial, the appeal will probably not stop the client from being placed into proceedings as the I-485 would also be denied. There is nothing to lose by attempting to get Deferred Action following the I-601 denial. Other tactics for how to handle immigration proceedings following I-601 denial are beyond the scope of this advisory.

The I-290B is normally filed with the consulate, but in a few parts of the world it is filed with the CIS office. Be sure to review the instructions on the denial notice.

Any Motion to Reconsider will be automatically converted into an appeal if the CIS office denies the Motion. Normally no notice of the decision on the Motion to Reconsider is given if it is denied. It is only possible to know it has been converted into an appeal by making inquiries. Consider carefully filing a Motion to Reconsider before the OIC if claiming Abuse of Discretion before the AAO. It’s hard to fashion an Abuse of Discretion argument that is not a bit insulting to the OIC who made the decision. This person is going to read the Motion and may remember Counsel’s name the next time one of Counsel’s waivers crosses his/her desk. The Motion to Reconsider filed with the foreign CIS office is almost never successful unless there is a new adjudicator who made a very clear legal error (e.g. thought a fiancé(e) couldn’t file an I-601).