Need Advice

[JackSD]

Prior to me meeting my wife, she had previously entered the US on a B2 visa in June 2000, overstayed until October 2003. She returned on a B2 visa in January 2004, (3 months later) was admitted, and applied for a change in Visa to that of a student in June 2004. She received a denial letter sometime in September 2004. The denial letter also told her to leave the country.

I'm a US Citizen, I met her in March 2006, we got married in May 2007.

What kind of problems are we going to have? She is still in the country, I'm getting ready to file the paperwork but I thought I'd throw this out there to see if I can get some advice on what we should expect.

Thanks

[Laura]

Hmm.. Won't she need a waiver because she overstayed for more than a year and then left and re-entered, albeit legally? Someone else will chime in, but you could also try to ask Attorney Laurel Scott at her free online chat tomorrow at visacentral.net at 11:00 central time.

[JackSD]

I don't think anyone knows she overstayed the first time. She didn't go through the US Visit exit system, she just hopped on a plane and took off. The immigration officer didn't even ask her about her last visit when she entered in January 2004.

[kitkat1]

I don't think anyone knows she overstayed the first time. She didn't go through the US Visit exit system, she just hopped on a plane and took off. The immigration officer didn't even ask her about her last visit when she entered in January 2004.

I would talk with a qualified attorney - schedule a consultation. You may be able to simply adjust her status in the US with no problem since she entered legally (and overstays in this situation when married to a USC are generally forgiven). But you'll want to be clear on whether or not she'll be denied and need a waiver because the denial letter told her to leave the country and she didn't (outstanding deportation order?)

Bans are bans -- doesn't matter who knows or if you turned in an I-94 -- because you cannot lie during the immigration process (see the bottom of each and every form). If you do, the result is usually much, much worse.

[JackSD]

I was more worried that they would consider her visa fraud for overstaying, leaving, then coming right back and overstaying again.

[Pinkpig]

JackSD,

Sounds like your case may be a bit complicated and will hinge on how they interpret what has happened in your case so far. You definitely need a lawyer to evaluate the facts of your case...lying on any of your paperwork is not an option. leaving out certain facts will be considered misrepresentation if you are called on it. best to get all the facts on the table and then assess your options legally, honestly from the start.

For starters have a read here:

http://www.humanrightsattorney.com/sub/index.jsp;jsessionid=A4210A5823665BB3AACCE32523556 DE6?contentid=Z4RZmj62Bje6E0mtMENZUCkL

[JackSD]

I talked to a lawyer today, he said since my wifes last entry was legal, she should have no problem adjusting status. I'm meeting with him tomorrow so he can review my paperwork and I'll drill him some more.

We're not going to lie on the forms, she overstayed the last time and did not turn in her 1-94 when she left in October 2003, yet she was readmitted in January 2004 with another six month I-94.

Any questions you think I should ask him?

[JackSD]

I talked to an attorney today. He says if they find out my wife overstayed on her first visit to the US (June 2000 thru October 2003) that we'll need to file an I-601 because she'll be subject to the 10 year ban.

He said if I get an officer that isn't very detailed, they might not notice that the G-325 says lists that she lived here in 2003.

Can she be subjected to the 10 year ban even after she was re-admitted into the country legally? Also, is it possible to file the I-601 waiver while she's living in the country?

I'm thinking about waiting to file until October 2008, so that the G-325 will truthfully list an address in Brazil in October of 2003, meeting their 5 year history requirement.

I feel like all the air just got let out of my balloon.

[kitkat1]

Unfortunately the fact the someone at a POE wasn't doing their job and let her into the country when she shouldn't have been let in does not take away the need for a waiver.

I would NOT count on "getting an officer that isn't very detailed" and that kind of advice worries me.

She can stay in the US and file the waiver in the US since it will be after her denial at the AOS interview, assuming they don't deport her. I wouldn't suggest waiting another year and a half - she is deportable now. The sooner you get moving, the better IMO.

[Laura]

Jack, as Kitkat said, this is the kind of situation that should merit an in-country waiver, which means you won't have to be separated. Try not to worry, and bad idea to try to cover it up.

[JackSD]

Thanks for the advice. I'm not really trying to cover it up, I'm just trying not to make it so obvious. If I file today, the US address in 2003 is going to be right there in the "previous addresses" section. If I file in October 2008, it won't be in the "previous addresses" section because 5 years prior to October 2008 she was in Brazil.

For all I know, they have no idea she overstayed the first time, I just don't want to point it out for them. If they do know, then they know and there's nothing I can do about it.

What are some of the reasons you can put for a waiver? It wouldn't be a financial hardship and we dont have kids. Do we even have a chance?

[kitkat1]

Jack, did she have a deportation order as part of the denial that directed her to leave the country? If so, you will also need a 212 waiver, and I would talk to a lawyer about what will potentially happen if she goes to the AOS interview.

Otherwise, IMO I would not wait. She's out of status and likely deportable -- any number of things could happen that could result in deportation and it will not help your case.

Hardship letters are written by the USC to prove extreme hardship in the event that the spouse's visa is denied and ultimately you have to relocate permanently to her country. So it's all about how that would impact you. It would be a financial hardship -- do you speak Portuguese? Are jobs in your field available? What's the unemployment rate there? What would happen to your IRA/401K/Future Social Security earnings if you had to leave the US forever? What about health insurance and medical issues?

Start thinking along those lines. I would begin by reading attorney Laurel Scott's 601 guidance memo on her site: www.visacentral.net. That will give you a good idea of what is required. You can also read the 601 memo posted on many embassy websites -- there's one on London's site here: http://london.usembassy.gov/dhs/uscis/extreme_hardship.pdf

Good luck.

[VENZwife]

It doesn't matter that they didn't catch it when she re-entered the second time, she still wasn't supposed to re-enter and was technically ineligible for the visa in the first place, and is still subject to the bar. I don't know what they would consider it, since she knew she wasn't eligible for the visa and she applied for it anyway. They may not have asked about this, but I bet there was something on the visa application that she had to omit. Its amazing the things that are and are not caught sometimes.

I definitely wouldn't lie on the forms. Being caught in a lie can be 100 times worse than the actual crime, and can carry a lifetime bar. My guess is when you file, they will most likely catch that and deny your AOS. Its only after you are denied that you can file the I-601 (if eligible) to waive the bar. They will probably sometime also send her a notice to report to removal proceedings in front of an immigration judge.

I am really shaky on the whole I-601 process from within the country. I would consult your lawyer, and perhaps go to Laurel Scott's free chat on Wednesdays to verify this information.

You should hope for the best, but always be prepared for the worst. I'd be working on writing the best I-601 waiver I could, and have it ready just in case. I wish all the best of luck to you, and hope things come out positively.

[Pinkpig]

Jack,

Just some things to think about because IMHO from what you have posted you may have some issues. I have not heard of any one having an immigration story where the applicant came out with the break. I have heard several stories where the applicant was not given any benefit of the doubt and suffered the worse case scenario. Therefore I am a bit skittish about questions and unknowns. So just beware and keep asking questions.

You may be eligible to file an in-country I-601.... I would not let her leave the country or go to any interviews with immigration officials before you know exactly what will happen. You need a solid opinion on this...

Have you done a consult with Laurel? It would be well worth your $150.


Then here is the other side of the story if she is not able to do an in-country waiver and has to leave the country. Do you know if she has an order of deportation?

Read Shrek's story here:

http://immigrate2us.net/forum/showthread.php?t=378&highlight=shrek%2A

It sounds like she may have a 9C. Overstay of more than 365 days and then re-enter or attempt to re-enter. As you can read in Shrek's posts it does not matter if they let her re-enter or not. They can interpret this as 9C.

I must caution you that even if they miss this in Rio, I am guessing that Lima will catch it.

The interview process in Rio/Lima can be quite extensive...

If you have prior immigration violations and you are going through Rio, your fiance may need to have fingerprints taken in Rio and fingerprint clearance before Rio will even schedule an interview for her.

Also I think it will show up before you get that far.

The Lima office is a definite wild card. Many posters have confirmed this.

If she is allowed to file the I-601 waiver, you are going to have to prove hardship on you, the USC if she is not allowed to re-enter the US.

There are approved HSL's from Brazil filers in the sticky's. Have you read those for an idea of what it takes to get an approval from Lima. One more thing is that Lima does not like mis-representation.

You just need to have this all nailed down so that you know what your choices are.

Good Luck!

[JackSD]

She hasn't received a deportation order.

The story is identical to Shreks, except that they never questioned her about her original overstay on her second visit, and she hasn't left the country. She came to US, was let in and overstayed 3 years. She left to Brazil, returned 3 months later, was let in and is still here, its been 3 years. She hasn't received a deportation order. We've been married for 2 months, we haven't filed anything yet. She even filed for an extension right before her I-94 from her 2nd visit expired and it was denied. It wasn't denied because of a prior overstay, it was denied because she didn't demonstrate any real need.

I was just looking at Laurel Scotts website and considering doing a consult tomorrow.

[JackSD]

Forgot to mention, she was originally issued a 10 year multi entry Visa. She didn't re apply on her 2nd visit to the US. She was interviewed in Houston when she arrived and issued the I-94 but she didn't re-apply for a visa the 2nd time.

[Pinkpig]

She hasn't received a deportation order.


I was just looking at Laurel Scotts website and considering doing a consult tomorrow.

Just because she has not received a deportation order does not mean that one does not exist...

Laurel will tell you straight up. You can believe whatever she says. She knows her stuff.

Also if you have not take a click around our lawyer's site. The link is in my signature. She also will tell you straight up.

I know that there are other good immigration lawyers. I just do not know them. I know that these two will tell you the facts and not sugarcoat anything.

That is what you need to know in order to decide about your future. Good Luck.

[kitkat1]

Forgot to mention, she was originally issued a 10 year multi entry Visa. She didn't re apply on her 2nd visit to the US. She was interviewed in Houston when she arrived and issued the I-94 but she didn't re-apply for a visa the 2nd time.

You don't reapply for each visit - not until a visa is going to expire. You are only inspected at the Point of Entry - so no problem there.

As PP said, just because you haven't received a deportation order or aren't aware of it does not mean it doesn't exist. I am especially leery in this case since she received a denial letter in the mail that clearly stated she had to leave the country - sounds a lot like deportation to me.

[Pinkpig]

Forgot to mention, she was originally issued a 10 year multi entry Visa. She didn't re apply on her 2nd visit to the US. She was interviewed in Houston when she arrived and issued the I-94 but she didn't re-apply for a visa the 2nd time.

An overstay invalidates a 10 year multi entry visa...

Many times when people arrive at a port of entry they are allowed to enter the US even if they have immigration violations, whether they show up on the computer or not. We have had multiple folks on this site who were allowed to enter the US even though they should not have been cleared to enter for a variety of reasons.

Shrek is another example of this happening. I think Eve is another one and they are just folks that I know about recently from Brazil.

Many folks do not know the immigration laws and are allowed to enter innocently. I think this happens many times with a multi entry visa. Sometimes they dont catch it or they dont ask the right question etc.

So the fact that she was allowed to enter even though the visa was invalidated because of her overstay is not uncommon.

[Pinkpig]

Jack, are you in CA?

Sponsoring your spouse for a green card
Before Filing Anything - Potential Issues That Could Result in Denial of a Marriage Case
Even if a U.S. citizen or Lawful Permanent Resident spouse files an immigration case to sponsor his or her spouse, it does not guarantee that the noncitizen will be eligible for a green card. This is due to many possible factors including (A) how the noncitizen entered the country (illegally or with a visa and the type of visa upon entry); (B) the noncitizen's immigration history and past entries and stays in the U.S.; (C) the noncitizen's prior misrepresentations to any CIS, INS, or DHS agent at the border, in application for a visa, or within the U.S. to gain an immigration benefit; (D) insufficient documentation to show CIS that the marriage is bona fide(i.e., a marriage that was entered into for love, not immigration purposes); and (D) a finding by the CIS interviewing green card officer that the noncitizen engaged in visa fraud upon entry into the U.S. or at any time in the past. These are just a few examples of possible grounds for denial of what a noncitizen or U.S. citizen spouse may feel is a straight-forward marriage-based green card case.

These are complex issues that are best addressed before any paperwork is filed for your noncitizen spouse, to ensure that the noncitizen spouse is actually eligible to receive a green card before exposing him or her to CIS and losing money and time in the process.

Possible Ways to Sponsor Your Spouse

What do I do if my spouse is currently inside the U.S.?

If the non-citizen spouse currently lives in the U.S., s/he may be able to obtain lawful permanent residency status (green card), through the process called Adjustment of Status (AOS) in the U.S. without having to leave the U.S. and pick up an immigrant visa at a consulate abroad. Another benefit of this AOS process is that a work card is filed at the same time as the AOS application, resulting in the noncitizen's ability to work wherever s/he can find a job in the U.S. within a few months of filing.

Can my noncitizen spouse travel outside the U.S. while a green card case is pending at CIS?

If the noncitizen has no prior overstays of the previously granted permission of time in the U.S., then s/he may also file for a special travel document to allow the noncitizen to travel outside the U.S. while the AOS case is being decided and before a green card interview has been scheduled. Otherwise, if the noncitizen travels without this special travel document, CIS will consider the AOS case to be abandoned, will deny the case, and will likely not allow the noncitizen spouse to re-enter the U.S. for some time.

How long does it take my spouse to receive a green card once the case is filed?

The other main benefit of the AOS process, at least in California and some other areas of the U.S., is that the green card process can be completed and the green card obtained in as little as 7 months after filing (based on current processing times), if an experienced immigration attorney files the case. For lists of current processing times by district CIS office, click here.

What's the actual process involved in filing this type of case?

The process is different, whether you hire an attorney, a non-attorney, or try to file the case yourself.

What does an experienced Attorney certified filing include? Individuals representated by consultants, notarios, or filing by themselves, do not find out until an average of 1 ½ - 2 months after filing if the filing is incomplete or improperly filed, causing the individual to have to provide additional documentation or re-file the case, which is not always possible since sometimes important amnesty deadlines are missed by filing the wrong or incomplete paperwork the first time around.

Experienced immigration Attorneys, on the other hand, can certify filings of AOS (green card) cases with US CIS, signing off that all necessary supporting documentation is submitted with the filing, queing the case to an interview slot faster which also cuts down time on the issuance of the work card. An experienced attorney knows what forms and supporting documents to include which significantly reduces the chances that the case will be slowed down by months with CIS requests for additional evidence.

Can I still file for my spouse if s/he Entered the U.S. Illegally?

A noncitizen has entered the U.S. illegally if s/he was not inspected by a CIS Officer who asked to show identification and visa for traveling into the U.S. at the point of entry into the U.S. Generally, if a noncitizen entered the U.S. illegally, s/he will not be able to apply for Adjustment of Status and receive the green card or lawful permanent residency status because of that unlawful entry. Instead, the noncitizen's U.S. citizen spouse must file an Immigrant Visa petition in the U.S. and once approved, the petition is forwarded to the consulate located closest to the noncitizen's foreign address and the noncitizen must pick up the visa and green card abroad, from this consulate.

This is obviously much less convenient than being able to obtain a green card in the U.S. through a CIS office.

Further, the moment a noncitizen who has been in the U.S. illegally for six months or longer leaves the U.S., s/he triggers what's called the 3 and 10 year bars to re-entry. These bars hold that the noncitizen will likely be denied re-entry into the U.S. despite the marriage to a U.S. citizen because of his or her previous unlawful/illegal stay in the U.S. There are limited exceptions or waivers available to the enforcement of these bars of re-entry but waivers, especially, are very difficult to get approved. Thus, it is crucial before a nonimmigrant leaves the U.S. that his or her immigration history be analyzed by an experienced immigration attorney to determine if the huge risk is truly worth the potential benefit.

The other two options for avoiding the bars of re-entry are to stay in the U.S. and try to take advantage of a past amnesty-type statute provision called INA 245(i) or file for an extreme hardship waiver* based on the marriage, claiming that the U.S. citizen spouse will suffer extreme hardship if his or her spouse is deported. These, like the waivers for the 3 and 10 year bars, are very difficult cases to prove, considering how many waivers like this are filed every year and the skepticism of many CIS and Immigration court personnel about what constitutes extreme hardship. Whether a noncitizen spouse qualifies for either exception to the unlawful presence rules to be able to attain a green card in the U.S. is a case by case basis and should be reviewed with an experienced immigration attorney.

* WARNING: It has been a trend among some attorneys who want a potential client's money on the underlying AOS case, to charge a very low rate for an extreme hardship waiver in very difficult cases with little compelling evidence. Be weary about exposing your spouse who is out of lawful immigration status to CIS by filing a green card case if the case will ultimately depend on the merits of the extreme hardship waiver, if the attorney cannot explain how the facts in your case are compelling (mere hardship and loss of togetherness, a business, relocation, separation, by itself is not enough for extreme hardship !). Be weary that if a lawyer is charging you, say $1500 for a waiver, there is no way that lawyer is going to be putting much time into your case. Unfortunately, you will find even with lawyers, that you get what you pay for.

[JackSD]

Yes, I am in California.

[Pinkpig]

JackSD,

http://immigrate2us.net/forum/showthread.php?t=68

I found this thread of folks who are doing in-country waivers. You might want to read through here and see what has happened to them or maybe you might want to contact them. Sounds like at least some of them are using a lawyer and may have somethings in common with you.

[JackSD]

Just talked to Laurel Scott, she said that we'll need to file the I-601 waiver. Either at the AOS interview or when we file the form to remove here temporary status as a legal resident depending on when the issue comes up.

She was not sure if she would fall under 9C, which would bar her from getting a waiver, but she's definitely 9B, which means she'll have to apply (as I undersood her).

She also said there was a very low chance that they would arrest her at the AOS interview, unless she has an outstanding deportation order. I explained that she was denied an extension of her I-94, she said that is not the same thing as a deportation order.

Thanks all for your help. Mailing packet today.

[Pinkpig]

Just talked to Laurel Scott, she said that we'll need to file the I-601 waiver. Either at the AOS interview or when we file the form to remove here temporary status as a legal resident depending on when the issue comes up.

She was not sure if she would fall under 9C, which would bar her from getting a waiver, but she's definitely 9B, which means she'll have to apply (as I undersood her).

She also said there was a very low chance that they would arrest her at the AOS interview, unless she has an outstanding deportation order. I explained that she was denied an extension of her I-94, she said that is not the same thing as a deportation order.

Thanks all for your help. Mailing packet today.

Great to hear this JackSD. Good luck with the process. I hope that it is quick and painless!!1