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Thread: Help! My foreign spouse or fiance is/was present in the US illegally. What do I do?

  1. #1
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    Question

    "I am a U.S. citizen and my spouse/fiance is or was present Illegally - what do I do?"

    based on the original 2007 document by Jardinera, with updates contributed by:
    Los G, PinkPig,
    Tropical, TSK, Cupcake
    and
    Attorney Laura Fernandez


    A lot of people land on immigrate2us with the same basic problem, something akin to the statement above.

    If you are in the same boat, please read this before posting your questions on the forum. Hopefully it will give you a good starting point, and a basic outline of the process.

    Note: This document is just to give you an idea of what happens during the process. This is not to replace the counsel of a good and trustworthy attorney. You should always talk to a good lawyer before going through any immigration process. For suggested attorneys who you can trust, see the list of attorneys recommended by members of Immigrate2us.

    The process described below applies only in situations where the foreigner is NOT eligible to adjust status in the US and will be applying for a visa at a US consulate in another country. Normally, you must do this process if:

    • The foreigner Entered Without Inspection (EWI), regardless of their age at the entry, and no matter what country they are in right now.

    OR

    • The foreigner entered legally (with inspection/with a visa), but accrued unlawful presence in the US and then left the country.

    On the end of the US spouse/fiance, he or she may be living in the US, or living abroad but is not a citizen or legal resident in the foreign country.

    If the US citizen is legally residing abroad, your family may be eligible for a special process called Direct Consular Filing, and that is a totally separate process, more details on that here.

    For simplicity, we'll focus on the foreigner who ineligible to adjust status in the US here. If you are wondering about the process for a person who entered the U.S. on a valid visa that allows adjustment of status, overstayed and is still in living in the U.S., please see this guide for Adjustment of Status on the Family Based Immigration site.

    ----------------

    Why can't we file for an Adjustment of Status with I-485?
    In most cases, EWI foreigners are not eligible for in-country adjustment of status (in which you file form I-485 along with the I-130 petition), even when they are married to a U.S. citizen (USC). There are only a few rare exceptions:

    1. If the intending immigrant is eligible under INA 245(i), also know as the LIFE Act. If it's possible that a petition was filed on the immigrant's behalf by April 30, 2001, or think you might be eligible under 245(i) for some other reason, please read this immihelp page on 245i, and consult a trusted immigration attorney.
    2. If the intending immigrant has been detained by ICE and is currently in removal proceedings. In this case, they may be eligible for Cancellation of Removal. Eligibility for Cancellation of Removal (COR) is limited to those who have been in the US for 10 consecutive years, have a clean criminal history, and have a US citizen or permanent resident spouse, parent, or child who would experience "exceptional and extremely unusual hardship" with the foreigner's removal. COR approval rates are generally pretty low and there is an annual cap on the number of people who can be approved under COR, so it's a risky path to attempt. If you believe your case is a potential COR case, consult a lawyer to discuss your chances.
    3. Victim-based exceptions - notably VAWA benefits and U visas. VAWA is generally for people who are married to a USC/LPR, or children of a USC/LPR, AND the USC/LPR is physically or psychologically abusive to the immigrant. The U visa is for victims of crimes in the U.S. If your spouse is undocumented/EWI and has been the victim of certain qualifying crimes in the U.S., he or she may want to investigate whether a U visa might be available. U visas are a slower path to permanent residence, but an EWI immigrant will not have to leave the country in order to get lawful status, if they qualify. Several I2US recommended attorneys work on these types of cases.
    4. Parole in Place for spouses of active-duty military. Many districts (but not all) in the US have begun allowing the active-duty military member to request "lawful admission" for their EWI spouse, allowing them to then adjust status in the US based on marriage as if they had entered the US lawfully. This procedure is called Parole in Place (PIP). This may also be coupled with an I-130 expedite request in the event that the military spouse is deploying. Jardinera explains the difference between PIP and consular processing in this post. There are some recent threads from members pursuing this path here, here and here.

    Generally though, anyone who EWI and seeks legal status must go through consular processing, meaning a US consulate in another country, usually in their country of origin, will process their visa before they can re-enter the U.S. legally and attain lawful permanent resident (LPR) status.


    If I file for my spouse/fiance, does it protect him/her from getting deported? Does it make it easier for ICE to find him/her?
    Please know that beginning this process does not protect the unlawfully present immigrant from detention, removal or any other immigration-related sanction. At the same time, starting the process is not known to trigger any immigration-related sanctions. Immigration and Customs Enforcement (ICE) has lots of work to do without chasing down those immigrants who are attempting to do the right thing.

    What do all these acronyms mean that I keep seeing around here?
    You can find more commonly used acronyms here.
    Last edited by Los G; 06-05-2011 at 11:26 PM. Reason: clarifying who does consular processing
    Please post your immigration questions on the forum, not in a private message. Always consult an experienced lawyer before filing.
    *If you believe you or someone on your behalf checked the "US Citizen" box on an employment document, please do not send a private message. Talk to a trusted lawyer about what could happen. *
    Getting StartedGetting Legal Status for Your Loved OneWaiver Eligibility
    Recommended Lawyers Visa BulletinHelp from Elected OfficialsTranslations

    Consular ProcessKnow before filingSpouse/Fiance Petition Petition Processing TimesNVC Stage Medical/InterviewI-601 WaiverAfter Approval
    Other Routes Adjustment of Status in the US Direct Consular Filing

    Living Outside the USLife in MexicoMoving to Canada Moving to Other Countries

    Officially banned for life w/no waiver (6cii)- but we don't give up! Read our story
    Lawyers I've worked with and highly recommend: Laurel Scott Laura Fernandez Lizz Cannon





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  3. #2
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    STEP 1: [optional but STRONGLY recommended] Consult with a lawyer

    Why?
    Immigration is one the trickiest, most complex, and most life-altering application processes a person can go through. If you go through the process with poor legal preparation, you could find yourself/your spouse in a bad situation, the worst of which would be banned for life with no waiver eligibility. It's not something to take your chances with.

    Immigration lawyers make a living from understanding and applying these complex laws. There are a many misinformed lawyers out there, which is why it's important to only talk to a lawyer highly recommended by others who have gone through a similar case. Click here for a list of attorneys recommended by other forum members.


    Also, NEVER, EVER seek immigration help from a notary/"notario" in the US. If a notario is offering immigration (or any legal) assistance, they are breaking the law, as only certified, licensed attorneys are permitted to charge for providing legal assistance.


    What can a lawyer do at this point?
    Most foreigners who EWI, committed a crime, violated immigration law, or have certain other complications, will require a waiver of inadmissibility during this process. However, for certain immigration violations, no waiver is available, or the foreigner must wait outside the US for a period of years (depending on which section of the law applies) before they can file a waiver. A good immigration attorney can review your spouse/fiance's immigration history, discuss your potential hardships, and help you determine whether you are eligible and a good candidate for the waiver process at the US consulate in the country where you will be filing.

    If you are not eligible for the waiver, or not a good candidate for the waiver, it is generally not advised to go have the foreigner leave the country. Your options are to wait in the U.S. hoping the laws will change, or relocate to the immigrant's home country, or some other third country, and wait out the duration of the ban.


    What things can make a person need or be ineligible for a waiver?
    For the master list of all inadmissibilities, see this document from the Dept of State. Some of the most common inadmissibilities include if the foreigner:

    • Was unlawfully present in the US for more than 180 days but fewer than 365 days after April 1, 1997.
      INA 212(a)(9)(B)(i) - 3 yr ban, immediate I-601 waiver eligibility with a qualifying USC/LPR relative. NOTE: Time spent unlawfully in the US while under the age of 18 DOES NOT count towards the 180 days, in this specific section of the law.


    • Was unlawfully present in the US for more than 365 days after April 1, 1997.
      INA 212(a)(9)(B)(ii) - 10 yr ban, immediate I-601 waiver eligibility with a qualifying USC/LPR relative. NOTE: Time spent unlawfully in the US while under the age of 18 DOES NOT count towards the 365 days in this specific section of the law.


    • Was unlawfully present in the US for more than 365 days after April 1, 1997, left the US, and then entered via EWI.
      INA 212(a)(9)(C)(i) - lifetime ban, no waiver eligibility until he/she has spent 10 yrs outside the US. NOTE: Time spent unlawfully in the US while under the age of 18 DOES count towards the 365 days in this specific section of the law!


    • Was deported/formally removed, left the US, and then entered via EWI.
      INA 212(a)(9)(C)(ii) - lifetime ban, no waiver eligibility until he/she has spent 10 yrs outside the US.


    • Attempted to enter the US or seek any immigration benefit by means of fraud or misrepresentation.
      INA 212(a)(6)(C)(i) - lifetime ban, immediate I-601 waiver eligibility with a qualifying US relative.


    • Falsely claimed US citizenship for an immigration benefit after September 30, 1996.
      INA 212(a)(6)(C)(ii) - lifetime ban, no waiver eligibility ever.
      • For example, if your significant other was caught using a U.S. citizen's birth certificate to enter the U.S. after 1996, he/she would not be eligible for residency ever. Another common scenario where this applies is when the foreigner entered the US through an entry point and they (or someone with them) verbally said the foreigner was a US citizen. It is critical to speak to an attorney if this scenarios applies to you.



    • Ever was convicted of a drug crime besides a single, simple possession of marijuana under 30 grams.
      INA 212(a)(2)(A)(i)(II), INA 212(h) - lifetime ban, no waiver eligibility ever.
      • Also, if there is something on one's record that creates just "suspicion" that the intending immigrant is a drug trafficker, the consular officer can impose a lifetime bar with no waiver under INA 212(a)(2)(C). No history of drug use should be taken lightly, even if it seems minor. Please consult a trusted immigration attorney and seek the advice of many people before going forward if your significant other has any of these issues.



    • Has any history of gang activity, or any history that could be interpreted as gang activity, or any gang-related tattoos.
      INA 212(a)(3)(A)(ii) - lifetime ban, no waiver eligibility ever.
      • The law allows the consular officer to deny a visa to any immigrant he/she believes is seeking entry into the U.S. to engage in unlawful activity. This very general and vague clause has been used to deny anyone who is even associated (past or present) with gangs or gang activity to be ineligible, with no waiver.
      • We've seen some heartbreaking cases related to this ban. People who have been living upstanding lives for decades. People who never were actually involved in gangs, but had a tattoo that was commonly used by gangs. It is essential that you talk to a lawyer if there's any chance your spouse/fiance could get accused of prior gang activity.



    • Skipped an immigration court hearing in the US.
      INA 212(a)(6)(B) - 5-year ban with no waiver
      • The most common instance of this is a non-Mexican who EWI through the U.S.-Mexico border, was stopped by border patrol, detained briefly, given a court date for some time later and then released into the U.S. Typically, people skip these court dates and remain in the U.S.
      • Just to clarify, Mexicans in this situation (caught by BP in the wilderness) are generally taken back across the border and not given any sort of formal removal (or a court date), so this bar does not, by any means, apply to everyone caught crossing the border.
      • However, if at some time during a person's stay in the U.S., they were issued an immigration court date but DID NOT ATTEND, this bar would apply once they leave the U.S. As of Feb. 2011, several members from El Salvador, Guatemala, and Honduras and several members filing in Lima have been stuck with this bar AFTER filing their I-601, so please be careful if this could apply.


    There are too many scenarios to list all of them here, so if there is something nagging at you besides the things mentioned above, or if you're not sure which apply to your case, please talk to one of the recommended lawyers.

    What if we're not sure of my fiance/spouse's immigration history?
    For those who have had a prior interaction with the law, but aren't sure what it exactly amounted to, sometimes there are further checks that can be done before you even begin the process. FBI fingerprinting produces an arrest record; most of the time, a formal removal/deportation will show up on this report, which can be useful for those concerned about INA 212(a)(9)(C)(ii) applying due to EWI after a prior interaction with immigration. A FOIA (Freedom of Information Act) request can be a bit more in-depth, and provides available information on the foreigner's prior interactions with border patrol, USCIS, or immigration courts. See the links below:


    This is scary. I'm not sure we can do this.
    This process isn't for everyone. When your spouse/fiance leaves the US, your family faces turmoil; financially, emotionally, spiritually, physically, plus the potential immigration pitfalls that could keep your loved one (and your family if you choose to join them) outside the country for a very long time. This forum stands as proof that hundreds of people have survived this process, but most also have scars and battle wounds to show for it. Before you decide to seriously begin the process, read Imp's post on making the decision to voluntarily enter the waiver process.

    For more details

    Last edited by Los G; 08-21-2012 at 07:32 AM. Reason: updating some FOIA info
    Please post your immigration questions on the forum, not in a private message. Always consult an experienced lawyer before filing.
    *If you believe you or someone on your behalf checked the "US Citizen" box on an employment document, please do not send a private message. Talk to a trusted lawyer about what could happen. *
    Getting StartedGetting Legal Status for Your Loved OneWaiver Eligibility
    Recommended Lawyers Visa BulletinHelp from Elected OfficialsTranslations

    Consular ProcessKnow before filingSpouse/Fiance Petition Petition Processing TimesNVC Stage Medical/InterviewI-601 WaiverAfter Approval
    Other Routes Adjustment of Status in the US Direct Consular Filing

    Living Outside the USLife in MexicoMoving to Canada Moving to Other Countries

    Officially banned for life w/no waiver (6cii)- but we don't give up! Read our story
    Lawyers I've worked with and highly recommend: Laurel Scott Laura Fernandez Lizz Cannon





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  5. #3
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    STEP 2: PETITION STAGE
    Total cost: $340 or $420 respectively depending on whether it's for a spouse or fiance
    Total time spent at this stage: Roughly 3-10 months, depending on which petition and where it was filed. Fluctuates constantly, review the visajourney timelines section for member reported processing times for IR1/CRI or K1 visas, and our own i2us processiong spreadsheet for I-130.

    Forms
    I-130 for a spouse (CR1/IR1 visa), $420
    OR
    I-129f for a fiance (K1 visa), $340

    AND
    G-325a Biographic Information (Petitioner and Beneficiary)
    G-1145 E-notification of Petition Acceptance (optional)

    What is the purpose?
    At this stage, USCIS determines whether the foreigner has a relationship that qualifies him/her to immigrate to the US, and whether that relationship is legitimate and not fraudulent. For this reason, as long as you properly file the petition, include the required supporting documentation as described in the instructions, and submit proof that your relationship is true and not fraudulent (also described in the instructions), the petition should be approved.

    How long does it take?
    The processing time varies, but generally hovers around 6 months for spouse petitions, shorter for fiances. You will get a notice that the petition was received, usually within 30 days or so (this is called the Notice of Action 1, or NOA1). When it's approved, you get a NOA2 informing you it's been approved. You can now file form G-1145E with your petition, allowing you to receive an electronic notification of receipt.

    To see what processing times currently look like, check out the user-reported timelines at VisaJourney, which includes information from probably the greatest number of petition filers on the internet, and our own spreadsheet where we're tracking i2us filers waiting on their I-130 approvals.

    Why do some people have to wait longer?
    Note: If you filed your petition within 2 years of your spouse going through removal/deportation, the standard processing time for the petition does not apply to you, unfortunately, as petitions in these circumstances are subject to deeper scrutiny, are sent to local offices to be adjudicated, and often require an interview with the petitioner at a local USCIS office before it can be approved. In very unfortunate situations, we've seen this take as long as 18 months, but we've also seen some recent ones approved in under a year. It's an extremely frustrating situation because when your petition is in this category, there aren't really other timelines to compare your case against, but you might find some camaraderie in this thread.

    If you are summoned for an interview in this situation, it's nothing to be alarmed about, you will merely submit proof of relationship in an interview setting instead of via mail. You will be asked questions about your relationship, take along plenty of pictures and any other information showing the validity of your marriage.

    The interview will happen before your I-130 is approved. You will receive notice of an interview in a USCIS office near your residence. Your I-130 may be approved at the interview or you will receive notice of decision a few weeks after your interview. Or, if you're lucky, you may be one of the rare cases that gets approved at the local office without requiring an interview. However, it's safest to expect an interview.

    Is there any advantage to one of these visas over the other (Spouse vs. Fiance)?
    In terms of the end result, not really. Overall waiver approval chances are generally the same. Fiance (K1) visas often process a bit faster, but cost more money in the long run, and require a separate Adjustment of Status package and interview once the foreigner enters the US and marries the petitioner. Spouse (CR1 or IR1) visas take a bit longer to process, but cost less altogether, and when the immigrant enters the US, they are generally done with the immigration process. Another advantage to the Spouse visa is that the immigrant is allowed to work upon entering the US, while a immigrant entering on the Fiance visa has to wait until the Adjustment of Status packet has been filed before they can receive their Employment Authorization Document.


    What happens once the petition is approved?
    See Step 3, the NVC Stage!


    For more details





    Last edited by Los G; 10-14-2012 at 03:41 PM.
    Please post your immigration questions on the forum, not in a private message. Always consult an experienced lawyer before filing.
    *If you believe you or someone on your behalf checked the "US Citizen" box on an employment document, please do not send a private message. Talk to a trusted lawyer about what could happen. *
    Getting StartedGetting Legal Status for Your Loved OneWaiver Eligibility
    Recommended Lawyers Visa BulletinHelp from Elected OfficialsTranslations

    Consular ProcessKnow before filingSpouse/Fiance Petition Petition Processing TimesNVC Stage Medical/InterviewI-601 WaiverAfter Approval
    Other Routes Adjustment of Status in the US Direct Consular Filing

    Living Outside the USLife in MexicoMoving to Canada Moving to Other Countries

    Officially banned for life w/no waiver (6cii)- but we don't give up! Read our story
    Lawyers I've worked with and highly recommend: Laurel Scott Laura Fernandez Lizz Cannon





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  7. #4
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    STEP 3: NVC Stage
    Total cost:
    $318 for spouses, none for fiances
    Total time spent at this stage: 3-4 weeks if you work quickly


    Forms: These are specific to the Spouse visa process.
    For Fiance visas, there is paperwork to collect but nothing gets submitted at this point. Click here for information on documents to prepare for a K visa interview.

    STANDARD TRACK




    OR ELECTRONIC TRACK (only applies for applicants filing in specific countries, including Mexico, Peru, and Montreal, Canada):




    What is the purpose?
    This stage is to assemble the documents that the consulate needs for the immigrant visa interview. These include:

    • Choice of Agent (DS-3032 or DS-261, depending on which track you get), where either a lawyer is named or the US petitioner is designated as the agent who will handle all paperwork. If the US petitioner will be the agent, use as permanent an address in the U.S. that you can find. This is where all further mailings and notifications will be sent. Changing your address with USCIS is a nightmare. If you anticipate moving before the end of the process, it's best to use a more permanent address like that of a parent's home.
    • The Affidavit of Support (I-864), where the US petitioner or another trusted sponsor proves that they can financially support the immigrant once they arrive in the US. It is important during this process that the USC petitioner or a combination of the USC and their household members have enough income to meet 125% of the poverty line. If the USC petitioner does not earn enough money to meet 125% of the poverty for the immigrant and his/her dependents, they must find a co-sponsor who can prove the required amount of income, or they can add the income of another household member to their own using form I-864A. The income used on the I-864 must be derived from lawful employment, so despite what the form says about the intending immigrant's income being countable, if the intending immigrant is earning that money through illegal employment, it can't be counted. See here for the specific reference governing that requirement.
    • The immigrant visa application (DS-230 or DS-260, depending on which track), where the applicant details his/her entire employment, educational, and residential history, including prior entries to the US and any immigration violations.
    • The civil documents, including birth certificates, marriage certificates, police certificates in countries where it's required (not required in Mexico), and passport photos. Police certificates may be difficult to obtain within the U.S., an alternative to this is to request the case be closed and the police certificates will be provided at the interview.



    What happens at this stage?
    The National Visa Center (NVC) receives your approved petition from USCIS, assigns it a case number based on what country you'll be interviewing in, and takes care of requesting the required fees and documents. They will initially contact you with your case number and a request to pay the processing fees and instructions for how and when to file the forms/documents. The fees can now be paid online. Nothing gets "denied" at this stage, although there can be holdups if you improperly file something (you will get a RFE, request for evidence), or if the Dept of State wants to do further background checks (which is called AP, Administrative Processing). Once the NVC is confident that they've gathered all the documents the consulate needs, they will close your case and send it on to the consulate so that the immigrant visa interview can be scheduled. Normally the consulate will contact you once they've set up your appointment date. See more on that in Step 4.

    How long does it take?
    If you have all the paperwork prepared before your petition is approved, and you submit everything right as soon as you're asked, you can clear this stage in a little less than a month.

    What if we can't get everything done right away?
    The NVC holds your case open for a year after they last hear from you. "Hearing" from you can mean anything, including submitting a fee or document, emailing a question, calling an NVC operator to ask a question, etc. If they don't hear from you for a year, they archive your case, and then you later have to file a special (and expensive!) form to re-activate it. In other words, you can drag out your case for years if you want, just by calling them once a year.

    For more details

    Last edited by Los G; 09-26-2012 at 02:47 AM. Reason: updating fees
    Please post your immigration questions on the forum, not in a private message. Always consult an experienced lawyer before filing.
    *If you believe you or someone on your behalf checked the "US Citizen" box on an employment document, please do not send a private message. Talk to a trusted lawyer about what could happen. *
    Getting StartedGetting Legal Status for Your Loved OneWaiver Eligibility
    Recommended Lawyers Visa BulletinHelp from Elected OfficialsTranslations

    Consular ProcessKnow before filingSpouse/Fiance Petition Petition Processing TimesNVC Stage Medical/InterviewI-601 WaiverAfter Approval
    Other Routes Adjustment of Status in the US Direct Consular Filing

    Living Outside the USLife in MexicoMoving to Canada Moving to Other Countries

    Officially banned for life w/no waiver (6cii)- but we don't give up! Read our story
    Lawyers I've worked with and highly recommend: Laurel Scott Laura Fernandez Lizz Cannon





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    STEP 4: MEDICAL EXAM & VISA INTERVIEW


    Total cost: Varies by country - roughly $300 for the medical (Spouse visa only), required courier fees (varies widely by consulate), plus travel expenses, which can be significant
    Total time spent: Roughly 8-12 weeks from NVC Stage completion to interview day

    Forms: none

    How do we get to this stage?
    After the NVC receives all of your applications described above, and after they review them and consider them complete, they send your petition and all application materials to the consulate in the country where you indicated you would apply for a visa, and your interview is scheduled. Usually from filing the last documents with the NVC to your interview date is about 8-12 weeks. Mexico schedules interviews quickly. Some Central American and other consulates worldwide take a lot longer to schedule.

    How do we prepare?
    You will be notified of your appointment and given specific instructions for the consulate where you will interview. Most of the consulates also have those instructions available online. Be sure to gather more evidence of the legitimacy of your relationship, and you should bring copies of absolutely everything you've submitted, because consulates sometimes misplace things you've already turned in. If the foreigner is still unlawfully present in the US, this is where you start making preparations for him/her to return to their country of origin to attend the interview and remain until waiver approval. Also, if you will need to file a waiver, at this point you want to make sure your waiver package is nearly complete and ready to be submitted.

    What happens at this stage?
    First, you have a medical exam. For most countries, this is a walk-in process that you need to do 2-3 days before the visa interview, and you can only go to the medical clinic(s) the consulate designates. Your consulate will give you specific instructions on how to do this. After that is the visa interview and then the waiver submission process if a waiver is needed (see Step 5 for more on waiver preparation and submission).

    What happens and what are they looking for in the medical exam?
    They are checking for any physical or mental conditions that would make the foreigner ineligible to immigrate. There have been many reports of the doctors and nurses at the clinics in CDJ asking immigration and criminal history-related questions. While there is concern about these practices, it is advised to answer all questions truthfully. BEWARE: major issues that come up in the medical include:


    Tuberculosis

    • Tuberculosis infections - even latent/inactive ones cause a holdup and they require treatment for several months. See this thread for more information.

    Alcohol/Drug Related Offenses

    Tattoos
    • Tattoos - this varies a LOT depending on which country, but some consulates have taken an great deal of liberty with tattoos. If they decide a tattoo is "gang-related", they can and often do ban applicants for life with no chance for a waiver based on "presumed gang ties", even if the foreigner never actually associated with gangs. If the foreigner has a tattoo, proceed with caution and consult an experienced immigration lawyer before leaving the US. Here is a very helpful thread on Tattoos at the Embassy in El Salvador.

    At the medical, they will also administer required vaccinations. There is generally no reason to get the exam or any vaccinations in advance in the U.S., because they will require them to be repeated anyway. After the exam, the intending immigrant will be given the results from the exam which need to be taken (still sealed) to the interview, usually the next business day.

    What happens at the visa interview?
    Ordinarily, the applicant must enter the consulate alone. The US citizen is usually not allowed into the consulate. The applicant spends a lot of time showing documents, appointment letters, etc. to the proper people, waiting in lines, waiting for their number to be called, etc. The interview itself lasts about 15 minutes and is conducted in the official language of the country/region where the consulate is located. In Mexico, it's in Spanish. In Rio, it's in Portuguese, etc. Typical questions relate to the relationship between the applicant and petitioner, the applicant's biographical history, and the applicant's history with US immigration. It's usually pretty simple, basic.

    If the applicant has no inadmissibilities, they get their visa approved right there. If, however, the applicant has any prior immigration violations, deportations, criminal incidents, or medical problems that make them ineligible under the law, the visa will be denied. If the applicant is eligible for a waiver, they will be notified at this point and given instructions for how to submit the waiver. Waiver eligibility is based on the letter of the law, so normally you know going into the appointment whether you will be eligible. Again, a major reason to talk to a lawyer before going through all this.

    For some members' experiences with the visa interview in Mexico, see the CDJ Interview Experiences thread. See also the informational videos linked at the bottom of this section.

    So what if the visa is denied?
    Provided you're eligible for a waiver, you proceed to the next step of this guide. If you're not eligible, you can attempt to appeal the decision, but this is a long and lonely road walked by some but conquered by very, very few. Normally, the visa decision will stand unless you can provide compelling evidence that the applicant is actually NOT in violation of immigration law. If the visa is denied and no waiver is permitted by the law, you've hit a very big wall.

    For more details


    Important Informational YouTube Videos about the Interview in Ciudad Juarez, Mexico



    Timelines of Members With Drug/Alcohol Related Inadmissabilities
    Last edited by Los G; 03-16-2011 at 07:12 AM.
    Please post your immigration questions on the forum, not in a private message. Always consult an experienced lawyer before filing.
    *If you believe you or someone on your behalf checked the "US Citizen" box on an employment document, please do not send a private message. Talk to a trusted lawyer about what could happen. *
    Getting StartedGetting Legal Status for Your Loved OneWaiver Eligibility
    Recommended Lawyers Visa BulletinHelp from Elected OfficialsTranslations

    Consular ProcessKnow before filingSpouse/Fiance Petition Petition Processing TimesNVC Stage Medical/InterviewI-601 WaiverAfter Approval
    Other Routes Adjustment of Status in the US Direct Consular Filing

    Living Outside the USLife in MexicoMoving to Canada Moving to Other Countries

    Officially banned for life w/no waiver (6cii)- but we don't give up! Read our story
    Lawyers I've worked with and highly recommend: Laurel Scott Laura Fernandez Lizz Cannon





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  11. #6
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    STEP 5: WAIVER SUBMISSION
    Total cost: $585 for I-601 waiver if needed, $585 for I-212 waiver if needed
    Total time spent: Waiver decision takes under 3 months as of September 2012

    Waiver forms:

    • I-601 ($585) Application for Waiver of Inadmissibility
    • I-212 ($585) Application for Permission to Reapply for Admission into the United States After Deportation or Removal


    What is the waiver?

    Hardship waivers are a form of discretionary relief available to people who are otherwise inadmissible to the US due to violations of immigration or criminal law. Waivers are not automatically granted just by filing the waiver package. Even though a person may be a spouse/fiance of a US citizen, they are not automatically entitled to have a hardship waiver approved.

    In order to have your waiver approved, you will need to prove that the USC will suffer extreme hardship were the intending immigrant not allowed to re-enter the U.S. for the duration of their ban (most commonly 3 yrs, 10 yrs, or lifetime depending on the inadmissibility). While it might seem obvious to most of us that a 10-year separation or forced relocation to another country constitutes extreme hardship, that is not enough, even for the least stringent Consulates. Assembling an I-601 waiver is a major effort involving a great deal of research, writing, editing, and organization. You can find a lot of resources related to the I-601 here on the forum. See the links throughout this section.

    There are actually multiple types of waivers. I-212 waives the bar set in place by being deported. I-601 waives the 3 and 10-yr bars for unlawful presence in the US, the lifetime bar for fraud/misrepresentation, health-related bans, and any criminal bars eligible to be waived, among other inadmissibilities. For the I-601, the US citizen qualifying relative must prove that they will suffer extreme and unusual hardship if the foreigner is not permitted to immigrate to the US. Some people just need I-601. Others just need I-212. Some people need both. A good lawyer should be able to prepare you for which you'll need, but ultimately you'll be informed at the visa interview after the visa is denied.


    What if we have multiple inadmissibilities? What waivers do we file then?
    A single I-601 waiver can cover all of the inadmissibilities listed above (unlawful presence, fraud/misrep, health-related, criminal, etc.) as long as the codes for all the applicable inadmissibilities are listed on the original I-601 application. A single I-212 covers deportation bans if they're eligible to be waived. In cases where you must file both, you should submit them together in the same waiver packet. If the I-601 is approved, the I-212 normally will be as well, as long as the waiver addresses the mitigating factors that should overcome the aggravating factors, alongside the hardship arguments for the I-601 waiver.

    When do we file the waiver(s)?
    You file it as soon as the consulate gives you clearance to do so. In order to get permission to file the waiver, the foreigner first needs to have an immigrant petition approved and processed through the consulate where they attend a visa interview. After the visa is denied, the applicant is given instructions for filing the waiver, if they're eligible to file. In the past, waivers were filed at the consulate. As of June 2012, a new Lockbox procedure went into place and all waivers worldwide are submitted to a central location in the US, resulting in much more standard adjudication times. Mexican filers can still submit their waivers to the offices at Ciudad Juarez if they choose, until December 2012. For detailed information on Lockbox waiver filing, see this thread.

    Can we save time and file it ahead of time?
    At the time of this post, it is not actually possible to file the waiver ahead of time. However, USCIS has announced a procedure change that will result in being able to file the waiver ahead of time and potentially go to a visa interview with approved waiver in hand, resulting in dramatically less time spent abroad. This thread is where we are collecting information regarding this procedure change. We don't know yet WHEN this change will go into effect, but we do know that USCIS is working on planning the logistics and setting up the necessary system. Once they make an official announcement, we'll be sure to let everyone know on that thread.

    Is it easy/hard to be approved?
    It is hard to be approved, but your chances are much better if you've done your research and prepared a strong packet. Basically, when looking at a waiver, the adjudicator looks at all the aggravating factors (the bad stuff: inadmissibilities, crimes, etc.) and then compares that to the mitigating factors (the extreme hardships of the US citizen, plus any good stuff, like age when they entered/were brought to the US, good character if it's a criminal waiver, etc.). If the mitigating factors are strong enough to overcome the aggravating factors, then the waiver is approved. If there aren't enough mitigating factors, they're not strong enough, or they're not well-documented, the waiver is denied. That's what makes it hard. It's not enough to be facing extreme hardship without your spouse. You must explain it clearly in your waiver letter, and then include strong evidence of every claim you make. It's hard work.

    In general, waiver approval rates for simple unlawful presence cases are pretty high. Any extra complicating factors reduce waiver approval rates. To get a good idea of your chances of waiver approval, talk to a lawyer who has experience and success with waivers through the country where you're filing.

    Who reviews the waiver?
    The waiver is reviewed by very limited, specialized staff from the Dept of Homeland Security (DHS) at the adjudication center in the US (or Ciudad Juarez through December 2012).

    How long does it take to process?
    Prior to the Lockbox, processing times varied widely, from 3 months in Mexico, to 9-10 at Lima, to over a year in Honduras, to 18 months or more in El Salvador. Any stories you hear from prior to June/July 2012 would reflect those processes. Now, with Lockbox filing, the stated goal was under 3 months and as of September 2012, processing has held to this goal. You can see processing times for users of this forum in the Lockbox timelines thread.

    My case was put into administrative processing (AP), what does this mean?
    Occasionally a person's case may be put into administrative processing pre and/or post-waiver approval. There is nothing that can be done to avoid this nor make the consulate process anything faster. It typically takes 6-8 weeks, but may take shorter or longer, depending on why the case in in processing. Very rarely do people know exactly why their case is in AP, but a frequent reason can be additional background checks.

    You can find more information about AP at the Dept of State website.

    What about Mexico?
    Since 2007, Mexico featured a special program, due to the fact that the vast majority of waivers filed worldwide are for Mexican filers. Until December 2012, waivers filed there go through a triage system. There are actually adjudicators on-site who go through the waiver quickly, once they get to it (used to be same-day, now takes weeks or months!). If the case is clean, the aggravating factors are few, and the waiver is clearly approvable, they will approve it "immediately", and the applicant will receive his/her visa. If it's not clearly approvable, it is never denied, but it is "referred" and put into the regular review process, also known as "the backlog" around here. This regular process is what waivers once went through at every other office in the world, and takes about 8+ months right now in Mexico. After that, the waiver is either approved or denied. If a waiver is referred for standard processing, you can submit a packet of additional evidence during the time it's pending adjudication to ensure that your case will be considered approvable when they review the waiver. Also, those who filed waivers in Mexico prior to Lockbox filing have the option of paying the fee and filing another waiver straight to the Lockbox, after which point the two waivers are said to be joined in the Lockbox and adjudicated together (see information in this post). There is a great deal of information on all of this in the I-601 Mexico section.

    There is no guarantee that a waiver will be found "clearly approvable," but the experiences of I2US members generally suggest that if there is no criminal history or deportations, the applicants clearly present strong hardships, and they provide sufficient documentation for all the claims made the brief or hardship letter, there is a very good chance they will be approved. Some aspects of waiver referral are within your control, while others aren't. See this post for some of the major factors.

    To see some statistics on forum members' experience with the waiver adjudication program in Mexico, see Azul y Vampy's thread for Visa interviews and Waiver Appointments in Mexico.


    Are the chances of approval lower if the US petitioner is living in the foreigner's country?
    Not necessarily. The waiver must demonstrate two things: the US citizen would experience extreme and unusual hardship in permanently relocating to the foreigner's country, and that the US citizen would experience extreme and unusual hardship living in the US without the foreigner there. However, during the immigration process, the US citizen has to choose one of these two options temporarily. The point is to prove that neither option is possible long-term. When you're living in the foreigner's country, it's often much easier to find documentable proof that you're experiencing extreme hardship there. Even though you're presently living there, you can still prove that it's impossible to continue to do so for the long-term. This forum features a lot of people who had waivers approved while living in their spouse's country.

    It is important to note however that your move to the foreigners country must be on a temporary basis. You must maintain a US domicile in order to complete the visa process. The sponsor (petitioner) does not have to precede the applicant to the United States but, if he or she does not do so, he or she must at least arrive in the United States concurrently with the applicant. Evidence that the sponsor has established a domicile in the United States and is either physically residing there or intends to do so before or concurrently with the applicant may include the following:
    1. Opening a bank account;
    2. Transferring funds to the United States;
    3. Making investments in the United States;
    4. Seeking employment in the United States;
    5. Registering children in U.S. schools;
    6. Applying for a Social Security number; and
    7. Voting in local, State, or Federal elections.

    Information can be found on the Department of State website or directly from the Foreign Affairs Manual 9 FAM 40.41 N6.1-2 Establishing U.S. Domicile

    What if the waiver is denied?
    DHS will contact you (usually the US petitioner) to inform you of the reasons why the waiver was denied. If this happens, the consulate will generally tell you that you have 30 days to appeal. You will want to talk to a lawyer about this, because filing an appeal is rarely the best choice. It's only a good option of the consulate made an error in applying the laws relevant to the case. This is not the most common reason for denial. The most common reason is "failure to demonstrate extreme and unusual hardship", which means they didn't consider the hardship arguments to be strong enough to counteract the inadmissibilities you sought to waive. Another reason why an appeal is rarely the best option is because many appeals take more than 2 years to process.

    What they don't usually tell you, but what most good immigration lawyers know, is that you have the ability to request a "re-file", which means you request a new appointment to file a new waiver. Having a denied waiver does not make you ineligible to file a new one, unless the reason for denial was that the consulate erred and you never were eligible for a waiver in the first place. The biggest prohibitive factor is the cost, as well as the time. However, with waiver approval standing as your only means of getting your spouse back to the US, re-filing is generally the best option unless living in your spouse's country (or a third/fourth/fifth country) is possible. The challenge with a re-file is that you need to assemble even stronger arguments than the last time, since clearly the last time, the arguments weren't enough.

    For more details

    I2us General Waiver Information Section

    Last edited by Los G; 09-26-2012 at 03:02 AM. Reason: reflecting Lockbox filing
    Please post your immigration questions on the forum, not in a private message. Always consult an experienced lawyer before filing.
    *If you believe you or someone on your behalf checked the "US Citizen" box on an employment document, please do not send a private message. Talk to a trusted lawyer about what could happen. *
    Getting StartedGetting Legal Status for Your Loved OneWaiver Eligibility
    Recommended Lawyers Visa BulletinHelp from Elected OfficialsTranslations

    Consular ProcessKnow before filingSpouse/Fiance Petition Petition Processing TimesNVC Stage Medical/InterviewI-601 WaiverAfter Approval
    Other Routes Adjustment of Status in the US Direct Consular Filing

    Living Outside the USLife in MexicoMoving to Canada Moving to Other Countries

    Officially banned for life w/no waiver (6cii)- but we don't give up! Read our story
    Lawyers I've worked with and highly recommend: Laurel Scott Laura Fernandez Lizz Cannon





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  13. #7
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    STEP 6: POST-WAIVER/VISA APPROVAL (we hope!)
    Total cost: $0 for IR1 spouse visa, $590 for CR1 spouse visa, $1070 for K1 fiance visa
    Total time spent: varies, but can take several months

    What happens at this point?
    The procedures from here vary a bit by country, but generally you are first notified by DHS that the waiver was approved. Then, sometime after that, you are summoned back to the consulate and your visa is issued. In some countries (i.e. Guatemala), this happens within days of the consulate being notified that the waiver was approved at DHS.

    Note that in Mexico, the process changes often due to the rapid adjudication program there and constant efforts to improve things, so for this stage, be sure to stay on top of what's happening in the I-601 Mexico section for the latest on what to expect here.

    Once the visa is issued, the foreigner has 6 months to enter the US.From there, the foreigner can either fly into the US or enter through the land border. The visa is stamped at the Port of Entry (POE), and for a spouse visa, this automatically sets off the cascade of processing for a Social Security Card and green card, plus it will generate a couple "Welcome!" letters that will show up at your US home address in the following weeks.

    What is the difference between the IR1 spouse visa and the CR1 spouse visa and how do you pick which you get?
    IR1 is issued if the foreigner and US petitioner have been married for 2 or more years ON THE DAY when the visa is issued. IR1 results in a green card valid for 10 years once the foreigner arrives in the US. CR1 is issued if they have been married fewer than 2 years ON THE DAY when the visa is issued. It actually has nothing to do with the length of the marriage when you apply, just when you get the visa. CR1, the "conditional visa", results in a green card valid for 2 years once the foreigner arrives in the US, and just before those 2 years are up, you must file for "Removal of Conditions" using the I-751. This currently costs $590.


    Theoretically, the visa type is ultimately determined on the date the visa is stamped at the POE, which is relevant in cases where a couple hits their two-year anniversary in between the visa issuance and the POE entry. However, it's a bit tricky to get USCIS to recognize the error if they fail to issue the correct visa. Still, it can be worth the fight because it's a difference of $590!

    What about fiance visas?
    If the foreigner entered on a K visa (fiance), the visa only permits a single entry within 6 months of the visa issue date. From there, the foreigner has 90 days to marry the US petitioner, and then they must file the "Adjustment of Status" package. This is quite costly, because K visas avoid a lot of the filing fees spouse visas pay during the NVC stage. Once the package is filed, an employment authorization document and Social Security number are generated, but no green card is issued until the applicants are summoned for an "Adjustment of Status Interview" at the local USCIS office.

    My spouse/fiance is back in the US but we're having trouble with the Social Security Number, Green Card, Driver's License, Credit History, filing taxes, etc. What do we do?
    Check the Post-Approval FAQs sticky, and then see if any recent threads in the Post-Approval area relate to your question. If not, add your question to that section and someone will most likely have some resources or ideas for you.

    When can we file for citizenship?
    If the foreigner has been a permanent resident for 3 years and is still married to the US citizen petitioner, they can file the N-400 for naturalization. If they aren't married to the US petitioner anymore, they must wait for 5 years until they can file N-400.


    For more details:
    Last edited by Los G; 05-15-2011 at 05:21 AM. Reason: formatting
    Please post your immigration questions on the forum, not in a private message. Always consult an experienced lawyer before filing.
    *If you believe you or someone on your behalf checked the "US Citizen" box on an employment document, please do not send a private message. Talk to a trusted lawyer about what could happen. *
    Getting StartedGetting Legal Status for Your Loved OneWaiver Eligibility
    Recommended Lawyers Visa BulletinHelp from Elected OfficialsTranslations

    Consular ProcessKnow before filingSpouse/Fiance Petition Petition Processing TimesNVC Stage Medical/InterviewI-601 WaiverAfter Approval
    Other Routes Adjustment of Status in the US Direct Consular Filing

    Living Outside the USLife in MexicoMoving to Canada Moving to Other Countries

    Officially banned for life w/no waiver (6cii)- but we don't give up! Read our story
    Lawyers I've worked with and highly recommend: Laurel Scott Laura Fernandez Lizz Cannon





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