Withdrawing the application for admission

[Shrek]

I would like to ask some general questions and then I will post my information and timeline.
My fiance came to the US on a B-2(tourist) visa in 2001 and stayed until Nov. 2003, an overstay of over 2 years. She returned to the US 5 weeks later in Dec. 2003 and was questioned about her overstay. She was admitted. Before the 6 months was up, we applied for and received a 6 month extension of her visa. She returned to Brazil in Nov. 2004 before the extension expired. We thought that she had a clean slate, I mean why would they admit her and extend her visa if there was a problem?

She returned to the US in June 2005 and was refused entry. She was told that her visa was not valid due to the original overstay. She was permitted to withdraw her application for admission, her visa was stamped cancelled and she returned to Brazil that night.

This began our nightmare which I will detail in the near future. I have been through the fiance visa, I-601 process etc. My first question: Is withdrawing the application for admission looked upon as being deported by the Embassy abjudicating the waiver? Does this mean no chance for waiver approval and an automatic 10 year bar?

Thank you for your help. I am a long time lurker here and this is my first post.

[USnoiva]

I hear what you're saying about them letting her back in and extending her visa. Let's just say that immigration is a little "slow".

It finally caught up with her, but since they did let her in "legally" the 2nd time and she withdrew her entry the 3rd time, I think you may have a chance with the I-601.
Did they stamp anything into her passport the 3rd time?

It's hard to say until you actually get to the visa appointment and it all boils down.

Where do you stand now in the process? waiting for a fiancee interview?

I really hope that withdrawing admission isn't considered deportation. I would tend to think it isn't.

[Pinkpig]

I would like to ask some general questions and then I will post my information and timeline.
My fiance came to the US on a B-2(tourist) visa in 2001 and stayed until Nov. 2003, an overstay of over 2 years. She returned to the US 5 weeks later in Dec. 2003 and was questioned about her overstay. She was admitted. Before the 6 months was up, we applied for and received a 6 month extension of her visa. She returned to Brazil in Nov. 2004 before the extension expired. We thought that she had a clean slate, I mean why would they admit her and extend her visa if there was a problem? Good Question.

She returned to the US in June 2005 and was refused entry. She was told that her visa was not valid due to the original overstay. She was permitted to withdraw her application for admission, her visa was stamped cancelled and she returned to Brazil that night.

This began our nightmare which I will detail in the near future. I have been through the fiance visa, I-601 process etc. My first question: Is withdrawing the application for admission looked upon as being deported by the Embassy abjudicating the waiver? NO Does this mean no chance for waiver approval and an automatic 10 year bar? No not that one thing.

Thank you for your help. I am a long time lurker here and this is my first post.

I don't know where you are in the process. Have you filed your fiance peititon yet, or have you been through the waiver adjudication process and gotten a denial from Lima?

[Shrek]

They stamped cancelled on her visa and application withdrawn on passport.

And we have been through the fiance visa and 601 waiver process beginning in August of 2005. She submitted the waiver in Rio in Nov.2006. She called Rio yesterday, July 6, to see if they knew how much longer it would take to get an answer and she was told that the waiver had been denied. She was told that they hadn't notified her yet because they had to send the paper work back to Peru because Lima had spelled her name wrong.

Now naturally she is quite shocked and upset and asks why it was denied. She was told that she filed a waiver under 9b for illegal presence but since she had been deported she wasn't eligible for a waiver and was barred for 10 years. She was so dumfounded she didn't even think to ask any more questions and it was too late for me to call back when she got in touch with me. Why would Rio ask for a waiver of overstay and then Lima say she wasn't eligible? Or perhaps there was a bit of miscommunication on the reason for denial?

I have used a prominent Boston lawyer for this entire process and I am assuming that as of Friday he had not been notified. And again, until we actually see the paper with the reason for denial, much of this is speculation, I am basing my thoughts on what Rio told her. I was hoping to get some ideas here to help me get through the weekend until I can make some calls on Monday.

We have been waiting for 23 heartbreaking months to be together. Where do I go from here? Can it be appealed? Should I contact Senator Kennedy's office?

[bamajoey]

The 10 year bar is for her 2 year overstay. It has nothing to do with her being denied at the poe. You submit the I-601 and the I-212 at your first visa interview. They will tell you everything you need to submit at the interview to waive the bar and the being denied the port of entry waiver.

Also you will need to be married ( I believe ). A fiancie ( sp) visa did not get it for me. I needed to marry for it to have a chance to work. I was in the same situation as you so I know a little.

Take care and God Bless.
Bamajoey

[Shrek]

The 10 year bar is for her 2 year overstay. It has nothing to do with her being denied at the poe. You submit the I-601 and the I-212 at your first visa interview. They will tell you everything you need to submit at the interview to waive the bar and the being denied the port of entry waiver.

Also you will need to be married ( I believe ). A fiancie ( sp) visa did not get it for me. I needed to marry for it to have a chance to work. I was in the same situation as you so I know a little.

Take care and God Bless.
Bamajoey

I have already been through the entire process. Rio asked for a 601, not an I-212. They said a fiance visa is elibible for a waiver. Thanks for the kind words.

[Pinkpig]

Shrek,

Understand. Here is one link for you to read as I know that you are desperate for information. I am looking for another one for you but in this Laurel Scott does address some about appeals: http://immigrate2us.net/forum/showthread.php?t=100

I will post some other things as soon as I find the links I am looking for.

Here is the first one: http://immigrate2us.net/forum/showthread.php?t=120

Here is another one: http://immigrate2us.net/forum/showthread.php?t=130

212((a))(9)(B)((i))(II) aliens who departed
after an (9B2) unlawful presence of one year
or more, provided the unlawful
presence occurred on/after 4/1/97


212((a))(9)(C)((i))(I) aliens who were
unlawfully (9CP) present more than one year
in the aggregate, provided the unlawful
presence occurred on/after 4/1/97, and who
subsequently reentered/ attempted to reenter
without inspection on/after 4/2/98.

[bamajoey]

You need to be married to file an I-130 to waive the bar. An she will need an I-212. Get married and refile the I-130. Being married has more rights than fiancie in the overstay case.

Keep an open mind my friend. I know it is difficult and even worse than that.
BamaJoey. Stay in touch.

[Pinkpig]

It would help if we knew on what basis they denied her ability to file the waiver. Was it a 9c.

If that is the case there has been one person on this site that has argued successfully against that point with pretty much exactly what you have posted to be the facts of your case.

It sounds like it is pretty clear that she was 1.allowed to withdraw her petition at the POE and was not charged with any 2. deportation or 3. voluntary departure. These 3 things are very different.

Just from what you have presented they charged her in Lima with 9c overstay of more than 365 days and the re-entering (the key here is that she re-entered with inspection through the POE. They allowed her to re-enter when they should not have. She did not try to EWI (enter without inspection) which is the biggy.

This is a very fine point of the law as I understand it and it can be argued that the permanent ban with availability for the waiver after being out of the US for 10 years should not apply here as she entered with not without inspection.

Let me ask Marie is she will be able to get the post where one of the members argued this point exactly and won.

Please correct me if I have mis-stated your situation.

[USnoiva]

You may want to try contacting Sen. Kennedy. It can't hurt.
I always thought that being "turned around" at the POE was not at all deportation. I thought they stamped a code or something in your passport (or you received a letter) when you were in fact deported.
Whatever the reason for denial. It's worth challenging.

[Shrek]

Pinkpig, at this time I believe it was denied due to 9c. And she was admitted the second time in Dec. 2003 after the 2 year overstay. And was given an extension of her I-94 in Vermont. At the 3rd attempt in June 2005, she was denied entry and was permitted or basically forced to withdraw her application for admission. So it seems clear to me that she entered with inspection and was not deported. This is why Rio denied her on her fiance interview in June 2006. Section 212(a)(9)(B)(i)(II), Unlawfully Present.

And why would Rio ask for a 601 if in fact she wasn't elibible? And then Lima has a different view of it than Rio? Somehow this does not seem just. I know I must wait until she gets the official notification to see the exact reasons for denial. At this time we are going off of her understanding of the phone call to Rio with Bianca at the Embassy. I guess it's pretty sad when you are on a first name basis with an Embassy employee!

Thank you all for your help and support.

[Shrek]

If the reason for denial is indeed 9c, what can I do? She clearly entered with inspection both times she entered the US. It's in the system. How can they make this claim? I know, they can do whatever they want. I must fight it. They have made three errors in this case and we must pay the price. Is there no justice or logical way to correct this?

[Pinkpig]

Pinkpig, at this time I believe it was denied due to 9c. (That is what I think as well.)And she was admitted the second time in Dec. 2003 after the 2 year overstay. And was given an extension of her I-94 in Vermont. (Both errors by USCIS and not uncommon.) At the 3rd attempt in June 2005, she was denied entry and was permitted or basically forced to withdraw her application for admission. So it seems clear to me that she entered with inspection and was not deported. (Yes, that all seems clear to me as well and I agree with you. I do not think she has any deportation or removal charges against her but that depends on what the OIC wrote on the actual documents that he placed in her immigration file at the POE. I don't think this third attempted entry and withdrawal of petition is your problem. I think your problem is the 2 year overstay and then the 2nd re-entry after the overstay of 2 years. Officially the visa would have been invalid because of the overstay. The fact that they let her re-enter and then extended the re-entry may give you some basis of argumentation. I can dissect the immigration law and even their explanation of the explanations but I think you need a good immigration lawyer to look at all the options going on here. I think there are several.)

And why would Rio ask for a 601 if in fact she wasn't elibible? (I am under the impression that Rio is not the most efficient or effective or knowledgeable embassy in the world. You are not the first person that this has happened to.) And then Lima has a different view of it than Rio? (Lima has the final say and they can do pretty much whatever they want.)Somehow this does not seem just. (IMHO there is not much about our legal immigration policies that seem just for those of us trying to get legal the legal way.)I know I must wait until she gets the official notification to see the exact reasons for denial. (Yes, that is true and if she is notified by mail you have only 33 days to file an appeal.) At this time we are going off of her understanding of the phone call to Rio with Bianca at the Embassy. I guess it's pretty sad when you are on a first name basis with an Embassy employee! (There are many of us who are pretty sad just like you.)

Thank you all for your help and support.

You are welcome. Just a couple of other things: Your lawyer may not (probably will not) receive anything officially.

How much experience does your lawyer have with waivers/appeals. Rio/Lima etc.?

When you get the facts of your case I would strongly recommend you get a second maybe third opinion from experienced immigration lawyers that are friends of this site. One is Laurel Scott and she does phone or email consulations for around $150. Her site is here: http://www.visacentral.net/ and our lawyer here: http://www.humanrightsattorney.com/sub/index.jsp?contentid=aj1fn0qvC9ovwim6wK4fjM4q

Also, I would advise you to read everything that you can in the next 48 hours so that you have a pretty good idea of what you are dealing with. I have found that even very experienced immigration lawyers do not know everything there is to know about this process.

FYI: Legally you can file a waiver for a fiance with just the I-129f petition, should be considered no different than a spousal I-130 petition. Historically Lima is one of those places that gives more weight to married petitioners filing waivers, legally or not.

I will continue to look for the post from the member of this site that argued what I think you are up against and won a few years ago.

All my best.

[Pinkpig]

If the reason for denial is indeed 9c, what can I do? She clearly entered with inspection both times she entered the US. It's in the system. How can they make this claim? I know, they can do whatever they want. I must fight it. They have made three errors in this case and we must pay the price. Is there no justice or logical way to correct this?

First of all you have to confirm why Lima has denied you.

If it is what you and I think it is and nothing else...I think you have a pretty strong case.

But, you have to prove your innocence. In this case you are guilty until proven innocent. Also, approving waivers is not a high priority for our government.

So, you have to decide what the best move forward is. It may not be an appeal.

[Shrek]

I have an immigration lawyer in Boston who has considerable experience with waivers. It is the Law Offices of Joseph O'Neil and he came highly recommended. When this happened back in 2005, I talked to several lawyers before chosing this firm. And I agree it is worth getting a second opinion.

Now on filing this appeal within 30 days, she hasn't even been notified yet. Rio had to return the paperwork to Lima because they spelled her name wrong. Is this going to be another problem? The only reason she knows of the denial is her chance phone call to Rio on Friday.

Her passport is stamped admitted Dec10, 2003. How is this entry without inspection? Isn't this clearly an error on Peru's part? It wasn't an issue in Rio. She still has the I-94 extension issued by Vermont. Now we must undergo an appeals process for another 1 1/2 years? I am an American citizen following the letter of the law and this is how I am treated?

She is guilty of the overstay, no doubt. Now they have made three major errors and again we must pay the price. Insane. Can a US Senator help expedite this?

[Shrek]

And are you suggesting that it may be better to start over again with another petition in Vermont instead of appealing? Again, I sincerely thank you for your help. I am so distraught now I am having trouble functioning, and my Princess in Brazil is equally depressed.

Someone should be able to make a phone call and fix this mess.

[eve_brazil]

Hey Srek;
I'm sorry to hear about your denial. You have already gotten great advices from Pink. I wouldn't be able to add much, but i'd like to tell you what the CO in Rio told me at my waiver interview. I asked him what would be the best thing to do if i got a denial. He told me straight forward that i should get married and then try again instead of just going for an appeal.He said only then i'd have better chances of an approval.
My case had similarities to what happened to your fiancee.I was also addmited after my overstay. They only send me back from POE after my 4th visit--after my overstay.
It's true that immigration is slow.Keep fighting though. Don't give up!!!

[Shrek]

Eve, could you please post your timelines as to when you entered and exited the US and when you were turned away at the POE? Were you able to withdraw your application for admission? Any info will be greatly appreciated.

[bamajoey]

I can understand the frustration you must be going through. 3 and 1/2 years ago my wife was denied entry at the Atlanta airport through inspection. They sent her back because of her overstay even though she had a proper visa and passport. We still had to file a I-212 at the visa interview along with the I-601. No biggie for the I-212 they file them together and if the I-601 get approved the I-212 most alway does to.

Now on to the real problem. What are all your options and alternatives. I use to be in counseling and that is what we always looked at.

One suggestion is that if this princess is your soul mate do whatever it takes to be with her. The commitment is what last. Marry her and she could move to a country like mexico or canada close to the border and you could move to a border city so you could work in the u.s. and still be with her. Then you could be together while you wait out the process.

This is just one option my friend. You can be together with both of you sacrificing and changing your life to make it happen. Are you both willing to change your life to be together.

I know it sounds crazy but it can work.
Stay in touch,
Bamajoey

[kitkat1]

You need to be married to file an I-130 to waive the bar. An she will need an I-212. Get married and refile the I-130. Being married has more rights than fiancie in the overstay case.

Keep an open mind my friend. I know it is difficult and even worse than that.
BamaJoey. Stay in touch.

You don't need to be married to submit a 601 waiver because the law allows waivers based on fiances as well. True, some people might find it harder to prove hardship if they aren't married.

You don't need a 212 unless there was an official deportation.

[eve_brazil]

Eve, could you please post your timelines as to when you entered and exited the US and when you were turned away at the POE? Were you able to withdraw your application for admission? Any info will be greatly appreciated.

HI Shrek...here's what happened to me:

I went ot FLA in Jan, 2000 (over)stayed until december 2001 (making a total of 1 year and 11 months in the US)
Then, i came to Brazil and returned to the US.The crazy thing is that I was normally admmited in all of those tHREE different occasions i visited. I entered normally with a valid turist visa and returned without overstaying all of those 3 times i was allowed entry after my overstay.
Last time i tried going again it was in december 2004.Like all the other previous times i entered, i thought i would have no problem. But this time,the asked me about my trip back in Jan 2000. They saw i had overstayed and then sent me back on my very next flight.They also cancelled my visa.I was forced to sign alot of papers and i really dont even know what it was....I too confused at the time ,so i dont know about this "withdraw for admission".My visa was cancelled and they put a number on the back.They said they would send me a letter but i never got anything.At the time i was just very confused and frustraded...You just can not think about anything.
I am not sure if this helps, so feel free to ask me anything else you think you can help your case.

[bamajoey]

Kitkat1, you need to read what the law says about the I-212. Official deportation is not correct. A simple removal at the airport or any POE can trigger a I-212.

Take care,
Bamajoey

[Shrek]

Eve, so when you went for your K1 interview, you were denied a visa because of your overstay and they told you could file a waiver? Could you possibly check to see what your specific reason for denial was and let me know what law was stated, it was probably 212 xxxxxx. Thank you for your help. I will probably have some more questions for you as your case sounds similar to mine.

[Shrek]

bamajoey, thanks for the kind words. Where was your wife from and where did she file her 212 and 601? Could you please post your timeline and details of your case? Thanks for your reply.

[kitkat1]

Kitkat1, you need to read what the law says about the I-212. Official deportation is not correct. A simple removal at the airport or any POE can trigger a I-212.

Take care,
Bamajoey

A simple removal at the airport often IS deportation. It all depends on the wording from the IO. Removal implies deporation. Voluntary departure, for example, doesn't.

[Coventrated]

HI Shrek...here's what happened to me:

I went ot FLA in Jan, 2000 (over)stayed until december 2001 (making a total of 1 year and 11 months in the US)
Then, i came to Brazil and returned to the US.The crazy thing is that I was normally admmited in all of those tHREE different occasions i visited. I entered normally with a valid turist visa and returned without overstaying all of those 3 times i was allowed entry after my overstay.
Last time i tried going again it was in december 2004.Like all the other previous times i entered, i thought i would have no problem. But this time,the asked me about my trip back in Jan 2000. They saw i had overstayed and then sent me back on my very next flight.They also cancelled my visa.I was forced to sign alot of papers and i really dont even know what it was....I too confused at the time ,so i dont know about this "withdraw for admission".My visa was cancelled and they put a number on the back.They said they would send me a letter but i never got anything.At the time i was just very confused and frustraded...You just can not think about anything.
I am not sure if this helps, so feel free to ask me anything else you think you can help your case.

An overstay automatically cancels a visa, so how did you get another visa after the original one was cancelled?

I assumed it would be practically impossible with an overstay on your recent history.

[Shrek]

An overstay automatically cancels a visa, so how did you get another visa after the original one was cancelled?

I assumed it would be practically impossible with an overstay on your recent history.

An overstay technically makes the visa invalid, however, up until a few years ago, many people were allowed to re-enter after an overstay. Their visas were not cancelled and they were admitted. INS began cracking down on this the past 3 years or so, and most are turned away and the visa is cancelled.

Im my case, my fiance had overstayed by 2+ years, left the US, returned again and was admitted, applied for and was given a 6 month extension, left the US and was refused re-entry the next time and her visa was then cancelled and she was sent home. She was able to make a phone call and called me from Washington DC. I spoke to the INS official who detained her and asked him why they allowed her to re-enter in Miami after her overstay, and why did Vermont grant her an extension if her visa was no longer valid. I said "So the official in Miami didn't do his job properly, the Vermont Service Center didn't do their job properly but you did. His response was and I quote
" Sometimes three people are speeding but only one gets caught"

I will never forget that as long as I live.

[Shrek]

I talked to Rio today and they said the reason for denial is 9C. However, they still cannot send us the official denial notice because Lima spelled my fiance's name wrong so Rio had to send it back to Lima for correction, and the offficer in Lima was on vacation so they are waiting for it to be sent.

I also spoke to Laurel today for a second opinion. She said we need to have the denial letter in hand to see the exact reason for denial. There may be more to it than just 9C as Rio is only telling me what is in the computer. They don't have the letter in hand. The original denial letter sent to Rio was dated May 21, 2007. It is July 9 and we don't have it in hand.

We are absolutely losing our minds waiting. We have waited for 2 years and still don't know exactly what is going on or what we can do. With the denial, our options are surely limited. We can only hope a mistake of fact was made and we can file a motion to reconsider. An appeal will take 18 months, and if we lose, she must serve the 10 year bar.

It all seems so unjust. She is guilty of overstay and denied, yet criminals and people who have been deported get approved. Unbelievable. Thanks to all for your help and support.

[jerrys]

Shrek,

we all feel your pain, believe me. just seeing these denials scares everyone including me because i myself am going through lima too. if you dont mind me asking how strong was your hardship case and do you guys have any kids together. i hope something can be done about this bull**** law. it really is inhuman. keep your head up big man..........

[Shrek]

I am still waiting for the official denial letter. My lawyer has requested a copy be faxed to them. Even the denial has been messed up.

[Shrek]

I'm losing my mind waiting. This is the second weekend we must suffer through without knowing what went wrong. We both feel so lost and empty. Our hopes and dreams vanished into thin air.

[Shrek]

My denial was due to 9C. So even though she was admitted at a POE and her visa was stamped admitted and she had a stamped I-94, they are saying she was unlawfully present due to her prior overstay. Same as swimmming across the river in the eyes of Lima. Unbelievable.

It comes down to interpretation of the law. It looks like an appeal is all I have left. Where is the justice?

[Spouse]

Hi.

1) For all intensive purposes "withdrawing the application for admission" will probably count as a deportation. The I-212 is most likely necessary. But as previously mentioned - no biggie there. Same thing, different form.

2) Yes, contact senators, congressman, EVERYONE... but do it wisely, humbly, and with EVIDENCE of what you are saying.

3) The reality is the laws are confusing and cases like yours with legal re-entry are somewhat rare. Hence, many adjucators are not familiar with them and think about 9c without thinking about the "admitted" part. Don't waste your time wondering "how they could do this to you", but rather how you can convince them to look at it from another angle.

I went through a VERY similiar situation and won (in spite of any idiotic advice that I received from immigration lawyers... this doesn't mean that they are all bad, but if I had listened to the ones I had, we never would have won the case.)

[Pinkpig]

Hey Spouse and Shrek,

Did you guys make contact yet. I will see if I can find Shrek's email address and get you together asap.