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Thread: Dilemma (I-601, K1, F2B, ESTA)

  1. #11
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    @Inadmissible: She is not going to marry him now. She told him she is not going back to the US anymore under ESTA after learning that she was not supposed to use ESTA. Here is an important question. She misunderstood the ESTA questions and came to the US when she was considered inadmissible. She wants to report herself now before USCIS finds out. What is the best way to do it? call USCIS or to apply for new ESTA with truthful information (she is still not sure which question to check "yes"? Should she wait till her priority date becomes current and let USCIS knows at that time? Will an immigration lawyer accept a case 5-7 years in advance?

  2. #12
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    She should certainly get a lawyer now
    Nothing in life is guaranteed, especially anything to do with Immigration.

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    ESTA has a built-in eligibility requirement that applicant has no criminal record whatsoever. If the applicant has any blemishes then he/she needs to go through regular process of applying for visit visa at the consulate and disclose all potential inadmissibilities.

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    Not quite, but certainly nothing of substance.
    Nothing in life is guaranteed, especially anything to do with Immigration.

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    A new ESTA authorization is required if:

    You are issued a new passport,
    You change your name (first and/or last)
    You change your gender (ESTA does not currently have a gender X to choose from on the application. It is suggested that the traveler choose whichever choice they feel most comfortable with. ESTA will not be denied solely on the gender chosen on the application. )
    Your country of citizenship changes
    Your circumstances change, e.g., you are convicted of a crime of moral turpitude or you develop a contagious disease. Such a change may require you to get a visa to travel to the U.S. You must re-apply and your application must reflect the change in your circumstances or you may be denied entry upon arrival in the United States.
    https://help.cbp.gov/app/answers/det...d/1072/kw/ESTA

    During my IV interview at AMS, met an applicant, a Dutch citizen who had some visa overstay problem during his student years in the US and now he always had to apply for visit visa.

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    The CIMT you're mentioning shouldn't render her inadmissible because it was never charged or because the charges were dismissed, i.e. the police or court ruled there's nothing to prosecute and cut it short at that point. We have to remember that innocent people get arrested and guilty get over-charged and we operate under a system of presumption of innocence. US Immigration law for that reason only views what you were convicted of or what you formally admit to.

    For example if you are charged with assault in third degree (where there's intent to harm which makes it a CIMT), and plead it down to a reckless assault or disorderly conduct, which is not a CIMT, the entire conviction is not a CIMT. Court decision for the most part overrides any admission you make yourself.

    The arrest and any court decision will have to be disclosed.

    Other question being would the CIMT fit under petty offense exemption (sentence of less than 180 days, maximum sentence of 1 year or less), as long as it's only one. In this case even if the consulate were to decide that she did commit a CIMT, the main question would revolve around the maximum penalty.


    The way forward would be to file K-1, see what the consulate says and if they charge the inadmissibility, and file I-601 if they do.

    If they don't find a CIMT inadmissibility then she can get the K-1 visa, come to US, marry, and adjust as a spouse/fiance.

    If they do find a CIMT inadmissibility then she'll have to file I-601 to seek a waiver under section 212(h). Now, the waiver can be obtained if more than 15 years passed since the crime and the person has rehabilitated, or if they can demonstrate hardship to a USC or LPR Spouse, Parent, or Child. Fiance is considered a spouse for purposes of I-601 for K-1. Hardship to any other person has to be spun as hardship to one of those people (e.g. hardship to her non-LPR non-USC child and her sister can only be viewed in the scope that they'd cause hardship to the qualifying relatives). Regarding the actual hardship, it depends on the case but it can be argued anyways. The "extreme hardship" standard isn't actually that high.


    Final question if you want to preserve the petition by parent is how long it'd take for them to naturalize. If a long time then it's probably not worth the wait to have a plan B in case the relationship goes sideways and instead remember that it's possible to get a good faith waiver for removal of conditions.


    Will a lawyer take a case 5-7 years in advance? Probably not. If you were to retain one you'd want it to cover:
    K-1 visa (I-129F and visa processing), and adjustment of status, with I-601 for an additional fee should it be needed.

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