help on 212 section

[Marisol]

Though I have a question that maybe you can help me with. I have a friend that is in some situtaion that I really don't understand. Here is what I know they got married in 2004 he went to his first interview in 2006 and his waiver was denied he was told that he could appeal to the decision and he did. He was told to send I-290B with fees. I do that he didn't have a clue about hoe his waiver should have been. He waiver was not good. They sent back that his application was not eligible under Section
212(a)(9)(B)(i)(II) and then it mentions
Section 212(a)(9)(B)(v) can u tell me anything about this two section

[y14gemini]

I am not sure but I believe 212 (a)(9)(B)(i)(II) is about illegal presence and 212 (a)(9)(B)(v) is in regards to a waiver but I am NOT 100% sure! Someone will chime in and give you the correct information. Try reading the I-212 section.

[Marisol]

thanks

[y14gemini]

No prob, I also found this:

The new INA §212(a)(9)(B)(i)(I) provides that any alien who has been unlawfully present in the United States (presence in the United States after the expiration of lawful status or presence in the United States without being admitted or paroled) for a period of more than 180 days but less than 1 year and voluntarily departed the United States (whether or not pursuant to section 244(e) prior to the commencement of proceedings, is excludable for a period of 3 years. The new INA §212(a)(9)(B)(i)(II) provides that any alien who has been unlawfully present in the United States (presence in the United States after the expiration of lawful status or presence in the United States without being admitted or paroled) for 12 months or more is excludable for 10 years.

And....

An immigrant waiver is available under INA §212(a)(9)(B)(v) for an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.

You can find more here:
http://americanlaw.com/exclud9A.html


I asked a different question in another post and KitKat (Thanks again) replied to me with this for my question and it had the above info in it, which was about your question :) Wow that was a mouth full!

[kitkat1]

Right - it means he wasn't eligible for a waiver in the first place because he had more than one year of illegal presence and then re-entered or attempted to re-enter illegally. This assumes that his illegal presence and re-entry was after April 1, 1997.

The second part refers to the availability of a waiver -- but in his case, he cannot submit a waiver until he has been outside of the US for 10 years.

Are there any important details missing from the story? The consulates do make mistakes, but it's pretty unusual for someone to be told they can submit a waiver and then later be told they are ineligible. Did his re-entry occur after the initial waiver submission or denial?

[Bebeau]

A waiver should be available for 9B except if this case is 9C

[emt103c]

This actually belongs in the 601 side.

The laws are exactly what y14gemini said and this actually only refers to unlawful presence of greater than a year, not 9C.

There should have been more on the paper as to why the waiver was denied, these are just the laws telling him why he could file the waiver and why he was denied the visa without the waiver.

Did they give a reason for denial of the waiver? Has he since appealed?

[Shrek]

This sounds more like the initial visa interview and the visa being denied due to 9B(i)(II), an overstay of one year or more, triggering the 10 year ban, for which a waiver is available under part v. It makes no sense for DHS to deny a waiver due to 9B when the law specifically provides a provision for one. Now I can see the consulate saying 9B and having DHS overrule the decision and apply 9C, so no waiver would be available. But having it denied due to 9B at the Homeland Security level makes no sense.

There must be more to the story, especially if DHS sent information about filing an I-290B, which is a Motion to Reconsider/Appeal. Gotta be more to it, I would think.