Need second opinion for I-212

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Hello everyone:
I would really appreciate if any one can give me some advice or answer my questions.
My wife is going to "Remove" from USA on Nov 2007. The following is the timeline about my wife case:
1998-2000: My wife use F-1 visa entered USA to study and got B.S. degree.
2001: I become LPR (Green Card holder).
2001: I married my wife (I am LPR at this time) and I submitted I-130 for her after we married.
2003: I-130 approved.
2002 to 2003: My wife use B-1 (tourist visa) enter USA (enter US more than two times)
2003: My attorney told her to apply Political Asylum in order to stay US legally.
2004: Immigration Court reject my wife case.
2004: Appeal my wife case
2005: Reject by court again and order her to "Remove" US.
2006: Reach her I-130 Priority Date
2006: I become USC.
2007: We have a baby, USC.
2007 July: File I-485 and I-212 to adjust her status
2007 Oct: Interview at INS. Due to her prior "Removal" order from court, officer said that USCIS did not have jurisdiction to process her I-212. She has to leave US, then submit I-212.
Now: After that INS Interview, my wife is released on an Order of Supervision and she is going to leave US on end of November, next month.

I have few questions about my wife case.

First, I talked to my attorney, read this forum and did research on internet about my wife case. I found out that although she overstay in US more than two years, she entered US with inspection by INS officer (She was using B-1 visa to enter US on 2003), married with USC (I am USC now), and have USC baby. She only needs to file I-212 waiver, do not need I-601, in order to re-apply her green card again. Based on this forum,

http://www.immigrate2us.net/forum/showthread.php?t=1849

Marie's reply: I quote that That's not exactly correct. If you marry a USC and were inspected at the POE, an overstay, even longer than 6 months, is forgiven when you file for adjustment of status.
I601 waivers are also applicable for things that would make you ineligible for adjusting your status: criminal record, HIV + active TB, and entering without inspection are the most common"


My first question is
1. Does my wife really need to file I-601 also or just need to file I-212 after she leave US ?

Second, I know in order to get I-601 approved, it needs "Extreme hardship" and it is really hard to get I-601 approved . However, for I-212 waiver, I checked on USCIS website "Adjudicator's Field Manual " Section 43.2,

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=724ce55f1a60168e48ce159d28615 0e2

and found out that I-212 waiver do not require "Extreme hardship", based on ( f) Consideration of Discretionary Factors
Furthermore, my wife and I do not have any criminal record in US or our hometown country. She never works in US since when she hold F-1, from 1998 until now. I work for City Government (Civil Service) and City will write a hardship letter for me.
Therefore my second question is
2. Based on our situation/condition, if my wife only needs to file I-212, do we need more supporting documents in order to get I-212 approved ?
3. In general, is it easier to get I-212 waiver approved compare with I-601 waiver?

Thank you very much for your help. :)

[emt103c]

As far as I know you are correct that she can apply for the 212 before being removed, however, since she was ordered to leave in 2005 you may now have 2 years of unlawful presence to deal with.

What did your attorney tell you?

You said you already filed the I-212, where is it being adjudicated? Do you have the receipt? The interviewer doesn't have jurisdiction over the I-212 but the USCIS does.

If it is pending then she might not be removed until it is adjudicated. Did you have a hearing with an immigration judge? (you said she's being deported) Did you tell them you have an I-212 pending?

If you do have to do an I-601, with an infant for you to take care of, consistent work in the U.S., etc, depending on the country where she is from, the 601 could very well be approved.

Either way, you need an EXPERIENCED attorney to answer these questions.

See here:

http://immigrate2us.net/forum/showthread.php?p=9664#post9664

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First, thank you very much for your suggestion.
My attorney told me that my wife only needs to file I-212, no need for I-601. That is why I am really confuse and seeking help on this forum.
Yes, we did file I-212 and I-485 together. At interview, the INS interviewer said that they do not have jurisdiction for I-212. My wife has to “leave” US “first” then submit to USCIS, because my wife I-212 can not be processed by USCIS while she is still in US. The removal order from immigration judge has to be processed first. On the other hand, we received USCIS notice (3 weeks ago) which is denied my wife I-212. If USCIS can not adjudicate my wife I-212 while she still stays in US, how can they deny my I-212? I am more confused??? Well, I think I only can look forward at this time. Re-apply her green card from my hometown country but does need to file I-601 too??

[lyro07]

Well the I212 is for deportation, the I601 for overstayed the visa in your case. Both forms need to be filed together at the alien country. You only need to write one HSL that covers both waivers. My understanding is if I601 approved, the I212 is also approved. Filing both forms/waivers mean there is an extra fee. You can't file these waivers until you're/your wife officially denied a visa at the visa interview in her home country and is told that she is eligible for the waivers. Based on her immigration history that you've stated, she is eligible for one. She needs to remain outside the US during the process. Good luck

[lyro07]

I read somewhere that eventhough someone has overstayed their visa, they could adjust their status in US without living the country. But, I don't know what steps you need to take. I know that they have to take care the deportation order with the judge maybe before going for AOS interview without living the country. Maybe you should ask an attorney if there is possibility that your wife doesn't have to leave the country. As far as waivers go I think file them outside the US easier to get approved than in country one.

[klaudialaw]

Hello! Your wife does not need to leave the country. I just heard of an exact situation. The order of removal can be fixed with an attorney. If you send me a private message on this forum I would be able to give you info on the attorney who handled that case.

[emt103c]

Hello! Your wife does not need to leave the country. I just heard of an exact situation. The order of removal can be fixed with an attorney. If you send me a private message on this forum I would be able to give you info on the attorney who handled that case.


If you know someone with the solution to this problem, this person seems to have it too:

http://immigrate2us.net/forum/showthread.php?t=4197

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Thank you for your suggestion.
Yes, I am going to consult EXPERIENCED attorneys. I think I had better do some homework/research first, then, talk to another attorneys. Before, I was fully trust my original attorney, then, it became my wife got removal order. Well, again, I only can look forward at this time; blaming or bad mouth is not going to do any good. Therefore, I am seeking help through this forum. If any one can help me clarify my confusion or answer my questions, I am really appreciated.
Thanks emt103c, lyor07, and Klaudialaw for all your reply.