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View Full Version : In desperate need of assistance with waiver. (Long)


CARUSA
07-02-2007, 02:03 AM
Hi I am in desperate need of some assistance with understanding how the i212/I601 process works. Let me give you all some background information:

I am a 26 year old American woman married to a 41 year old man from Central African Republic. We have four children together the oldest is almost 6 and the other three are 3, 2 and 9 months..My husband came to this country in December 1993 to participate in the IMET program. He was supposed to leave when his duties here were completed but didn't due to the political unrest in his country. Instead, upon completion of his duties, he reported to INS and begin the process for seeking asylum. In 1997 his asylum was denied by an immigration judge and he appealed to the Board of Immigration appeals. During all of this he and I married in 2001 a few months before I had our first child.

Three months after we were married we got a letter saying that the BIA had decided to uphold the immigration judge's decision and that he had a certain period of time to leave the U.S. I think 90 days. We immediately went looking for an attorney and found one who said he would handle our case. Unfortunately we found out later that this guy had several disciplinary actions on his record and was under suspendion when he took our case. Anyway he told us all we needed to do was apply to adjust my husband's status. So he started out by just filing the I-130 which I thought was odd cause we knew a couple whose attorney filed their I-130 and AOS papers together but I didn't really question this. Well our petition was approved in mid 2004 and the notice was sent to our attorney who was supposed to send it to us. The approval notice he sent to us had a note saying there may be important info on the back or something like that but the back was blank, I think he sent us a copy instead of the orignal we requested because the original may have said something about my husband not being able to apply for AOS and he didn't want us to know.

Later that year I begin dong my own research trying to see if i could complete the process myself I ordered the aos packet from the Immigration website and when I received it and read the instructions I noticed it said that a person who was ordered deported could not adjust their status. This is what led me to the web where I did my research and found out that, that was unfortunately true. I was heartbroken, angry and in disbelief all at the same time. I couldn't believe that someone could take advantage of people the way our attorney did and he saw that we had just had a baby and were desperate and all he cared about was making some money off of our desperation. Well its over and done now and I know there is nothing we can do about that so now that our hope in this immigration bill passing has been shattered, we have no choice but for my husband to go back to his home country some time soon and for us to apply for a hardship waiver for me and our four kids.

The problem is I have no idea where to start. I have no clue what papers to file, when to file or where they should be sent. I am totally lost. Can anyone help me understand what I need to do? Thanks for reading this, any replies will be greatly appreciated!

Cynthia
07-02-2007, 04:16 AM
Welcome Carusa... Sorry to hear about the "yucky" lawyer you had. :(

If I'm not mistaken, a Voluntary Departure (VD) and Deportation are TWO different things. Altho, I could be wrong, what the BIA issued was prolly a VD from the sound of it and not a deportation.

I'm also not familiar about IMET (first time reading it). I'm sure others will chime in soon.

But for now, all I can say is that your hubby does not hv to leave (IF he has to) until it's time to file the I-601. Start reading the Sticky of Examples of Hardship Letters in preparation for the I-601 or I-212 (if it's needed).

Hang in there... Others will chime in soon....

MistyB
07-02-2007, 10:32 PM
I believe you are correct Cynthia. I think a VD is different from deportation. It sounds like he was supposed to leave but was not necessarily ordered to do so within the 90 days.

If you have to file a 601, you cant ask for a much better argument than the Central African Repub.

pen1137
07-02-2007, 10:56 PM
yes, what is IMET? as long as he entered legally, he can keep fighting this...

oh, where is sesat with his long list of steps for fighting stateside...???

i believe laurel has said the deportation notice has to come directly from the immigration judge, not the BIA, altho i could be wrong.




(hi sis and misty, how ya doing?:wave:)

kkalan
07-02-2007, 11:07 PM
Complicated case you might need a good attorney to get a good advise.

Pinkpig
07-02-2007, 11:11 PM
http://www.humanrightsattorney.com/sub/index.jsp?contentid=iagytWHQdf94xIjVjCBATK5r

Here is a total explanation of deportation/VD.

I can not find anything on IMET.

You definitely need a good immigration attorney to straighten this out.

It looks as though you may have options but your case is way to involved for anyone on this site (except of course Laurel).

Pinkpig
07-02-2007, 11:25 PM
What state do you live in?

Was the I-130 filed for your husband before April 30, 2001

Exception: Amnesty and 245(i)

Section 245 (i), which was available until April 30, 2001, allowed any person who entered the U.S. illegally or who had overstayed a visa and was now out of status, to apply for a green card through adjustment of status, despite being unlawfully present, if the noncitizen had a family member or employer willing to sponsor him or her for an immigrant visa and filed this application before the April 30, 2001 deadline.

Grandfathering under 245(i). Even though 245(i) is expired and no longer available to allow adjustment for those unlawfully present, some noncitizens may still be able to take advantage of this law and not have to leave the U.S. to consular process, if an immigrant visa case was filed for them before the deadline but the person now wishes to file a different immigrant visa case due to changed circumstances (i.e., a new employer or new marriage). The original case had to be "approval when filed" in order for you to use a new case to take advantage of the expired 245 (i) amnesty-type provision.

This is a legal standard that is best explained by an immigration lawyer, who can better determine if you would be able to file a new case and take advantage of grandfathering.

Immigrants with prior deportation orders or immigration violations who live within the 9th Circuit and who are married to U.S. citizens or lawful permanent residents may be able to get their green cards, despite their prior immigration violations. Those who live in the states of California, Arizona, Nevada, Alaska, Hawaii, Montana, Idaho, Oregon, Washington and the territories of Guam and the Mariana Islands may benefit from this new caselaw.

In Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), the United States Court of Appeals for the Ninth Circuit held that an immigrant who was inadmissible (not able to get a green card) because of these prior immigration violations:

Any alien who has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed and who enters or attempts to reenter the United States without being admitted

could apply for a green card without having to leave the U.S. if the alien was grandfathered under section 245(i) or whose family member or employer filed an immigrant visa before April 30, 2001. A grandfathered immigrant can also include an immigrant whose parent or spouse has an immigrant visa petition filed for them but not one directly filed for the immigrant.

An alien is allowed to take advantage of this decision as long as s/he applies for retroactive consent to reapply for lawful admission.

In Perez-Gonzalez v. Ashcroft, the court found that the statutory terms of §245(i) recognized that individuals are living in the country without legal status and that the provision was reenacted to allow relatives of permanent residents to avoid separation from their loved ones.

MistyB
07-03-2007, 02:47 PM
(hi sis and misty, how ya doing?:wave:)


Been better sweetie but hanging in there..getting a divorce.

How are you guys holding up?

pen1137
07-03-2007, 07:10 PM
ah, misty, sorry to hear that.:sad: just leep hanging! that's what we're still doing with the waiting. it'd sure be nice to have a normal life, huh?!?

MistyB
07-03-2007, 08:52 PM
Normal??? what's that?! :cool:

CARUSA
07-04-2007, 04:39 AM
Thanks for responding. IMET stands for International Military Education and Training its a program that encourages diplomacy between the US and other countries by allowing selected members of foreign militaries to come to the U.S. for training under the instruction of U.S. military personnel. He came on an A-2 visa which is a diplomatic visa but I don't think he has diplomatic immunity.

He was ordered deported initially by an IJ in 1997 and promptly appealed that decision the BIA upheld that ruling and reinstated the IJ's orders in 2001. I believe the letter he received said that if he didn't voluntarily depart that he would be deported. 245i doesn't apply to us because we didn't file a petition until September of 2001.

Our case is a very complicated one, unfortunately it seems like the immigration attorneys here in San Antonio are not used to handling hardship cases.

The strangest thing is that last year my husband and the financial advisor at the nursing school he was attending wrote a letter to the Department of Homeland Security to inquire about his status and their reply was that he was "neither here legally nor illegally." I never heard of this I guess even they are confused!

Once again thanks for the replies I am going to stick around and use this site to find out more about those waivers in case I need to go that route.

Cynthia
07-04-2007, 07:22 AM
yes, what is IMET? as long as he entered legally, he can keep fighting this...

oh, where is sesat with his long list of steps for fighting stateside...???

i believe laurel has said the deportation notice has to come directly from the immigration judge, not the BIA, altho i could be wrong.




(hi sis and misty, how ya doing?:wave:)


hmm...wondering where's sesat as well...

Hello Sis! Doing good. :)

Cynthia
07-04-2007, 07:56 AM
From the sound of it, he did entered legally. Interesting, as this seems to be the first case for A visas... Found reading this but not much detailed infos:

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=e6f9e66480441fe548dfe78bf2aff 82c

Wish we can look up if A visas eligible to AOS. :(

Would really like to suggest to get a consultation before you hire an atty.

You're more than welcome to stick around. The HSLs are there to help everyone out...:)

Keep us posted..