MUST READ!!!! CR1 possible 3 year ban!

[klicristina 0]

Here is my situation. I am an American citizen and my Brazilian fiance at the time came to the USA on March 3, 2007 on a K1 visa. We didn't get married within the 90 days, but rather at a later time on December 21, 2007. On February 27, 2008, we filed a change of status (I-485) before my wife's I-94 expired on May 1, 2008. We knew that we could not adjust my wife's status because we didn't get married within the 90 days requires by the K1 visa. Instead, we filed the I-485 based my wife's marriage to me, an American citizen. To complicate things further, we filed only the I-485 without the I-130 included. On July 29, 2008, we received a denial letter from USCIS stating that we couldn't adjust my wife's status because she entered the USA on a K1 visa and that we didn't get married within the 90 days window. We consulted with several lawyers and were adviced that we could adjust my wife's status based on her marriage to a United States citizen. We immediately retained a lawyer and filed an I-130. While waiting around, my wife was put into removal hearing with a court date of December 3, 2008. While the judge was sympathetic to our situation and totally believed that we have a bonifide marriage, he informed us that there was no legal ground from which my wife could adjust her status because she was a K1 visa holder and that we didn't get married within the 90 days window. The judge told us that my wife needed to leave the USA before January 17, 2009 to avoid the 3 year ban. My wife returned to Brazil on a voluntary departure order from the court on Juanuary 10, 2009. After going through this whole process, we now know that there was no way to adjust my wife's status because she entered the country on a K1 visa. My wife is having an interview in 9 days and we would like to know the following questions. Has my wife incurred any unlawful presensce in the USA during the time she entered the USA on March 3, 2007 until the time she left on January 10, 2009 that would caused her to to have a 3 year or 10 year ban? Are there any legal issues about my situation that would prevent my wife from getting a CR1 visa, for example her I-94 was about one year and three months long?

We would appreciate any comments or opinions concerning our situation.

Steve

[Lansbury 19]

Not sure from your post how your wife had an I-94 expiring May 1 2008 if she entered on March 3 2007. However the time for any ban would I guess start counting from when the I-94 expired. 180 days for a 3 year ban and 1 year for a 10 year ban.

However the words of the immigration judge would seem to show I'm wrong and while I know officials make mistakes I would always assume an immigration judge knows what they are talking about. Afraid it looks like you will have to wait for a definitive answer when your wife is interviewed.

Good luck I hope it is resolved without it being a problem.

Edited October 28, 2009 by Lansbury

[Chica Yeyé 41]

Lansbury, this is a double post

[klicristina 0]

FYI. There is more to my story. What you dont know is this. The judge based his 180 day count from July 22, 2008 because this is the date that my AOS was denied. It is also the date that triggered my removal hearing because USCIS knew that my wife began to be out of status from this date.

Thank you for your comment.