Do I need I-212 or I-601 or both?

tmojica · October 1, 2010

I am a U.S. Citizen and filed a Petition for Alien Fiance I-129F (approved through September 27, 2010) for my fiance in Dominican Republic. On August 10, 2010, I gave birth in the US to our daughter. On September 22, 2010, my fiance and I had our visa interview in Santo Domingo, DR and the visa was denied - Misrepresentation 212(a)(6)©(i). We were given form I-212 which the consulate officer told us to file.

From September 2005-October 2005 and then in March 2006-July 2006, my fiance used his younger brother's ID/birth certificate and obtained a visa to play baseball in the United States. He entered the US those two times using his brother's name and then returned to Dominican Republic on his own and at his own expense.

After reading I-212, I see that this form is for someone who has been deported or removed from the United States. Does anyone know if this is the form we should file or whether we should file form I-601 for a waiver. Some people has suggested that we file both the I-212 and I-601. We don't want to do the wrong form especially since we have a brand new baby daughter who had not even yet got to meet her father.

PLEASE HELP!!!

Used to be broken · October 1, 2010

Did you mean 212(a)(6)C(i)? That is a misrepresentation /fraud finding, which carries a lifetime bar, yes you will need a I601 to accompany it because in addition to the fraud/misrep finding even if they did not cite it on the VISA denial form, your fiance also incurred UNLAWFUL Presence and depending on how long he was here without proper authorization it carries either a 3 year or 10 year bar. BUT.. because he is your fiance not your spouse you have to research if you even can file an I601 application because a fiance VISA is a "non-immigrant" petition so I am not sure there is even a waiver available (I601) because at this point there is not a "qualifying relative" to petition for him, unless he has a US Citizen parent.

Because of the the way he entered using the identification that belonged to someone else they could also technically consider it an EWI, because the person they inspected wasn't the person they thought it was. Because he did it twice, he potentially has multiple EWI's. You could potentially run up against a number of really odd findings in your case and find that the adjudicators will not treat these issues lightly.

You do not have a "do-it-yourself" Immigration case. Do not simply fill out and submit I601/I212 and hope for the best result. Your case is complex and difficult and you need an experienced Immigration Attorney not a good one, but a brilliant one to overcome this. Its going to be extremely expensive and lengthy process. Depending on the age of your fiance when he committed these crimes which the USCIS/CBP finds very offensive because he not only fooled them once but twice they will also have an extremely critical eye towards any evidence you submit in support of your assertions regarding hardship.

Do not file anything else until you obtain an attorney if you want to have a shot at overcoming this.

I also would not go on the thinking that since they only told you about the I212 to just file that for many reasons , one is a "lone I212" is rare consulates do not know what to do with them,so they float around and end up in a black hole bouncing from USCIS to Embassy post and waste lots of time. Also the circumstances of your case are somewhat unique and indicate the consular simply made a mistake in admitting the need for the I601 unlawful presence waiver so you could end up waiting a very long time trying to process the I212 which will have a 50% chance of going into oblivion to later find you also needed the I601.

Edited October 1, 2010 by brokenfamily

canadian_wife · October 4, 2010

Laural Scott is exactly what you need. She is an expert immigration attorney who specializes in inadmissability. She offers a free chat on Wednesdays for exactly these types of 'quick questions'

scottimmigration.net

She explains things in simple terms and will give you an honest, straightforward answer

Good luck

momof1 · October 4, 2010

Did you mean 212(a)(6)C(i)? That is a misrepresentation /fraud finding, which carries a lifetime bar, yes you will need a I601 to accompany it because in addition to the fraud/misrep finding even if they did not cite it on the VISA denial form, your fiance also incurred UNLAWFUL Presence and depending on how long he was here without proper authorization it carries either a 3 year or 10 year bar. BUT.. because he is your fiance not your spouse you have to research if you even can file an I601 application because a fiance VISA is a "non-immigrant" petition so I am not sure there is even a waiver available (I601) because at this point there is not a "qualifying relative" to petition for him, unless he has a US Citizen parent.

Because of the the way he entered using the identification that belonged to someone else they could also technically consider it an EWI, because the person they inspected wasn't the person they thought it was. Because he did it twice, he potentially has multiple EWI's. You could potentially run up against a number of really odd findings in your case and find that the adjudicators will not treat these issues lightly.

You do not have a "do-it-yourself" Immigration case. Do not simply fill out and submit I601/I212 and hope for the best result. Your case is complex and difficult and you need an experienced Immigration Attorney not a good one, but a brilliant one to overcome this. Its going to be extremely expensive and lengthy process. Depending on the age of your fiance when he committed these crimes which the USCIS/CBP finds very offensive because he not only fooled them once but twice they will also have an extremely critical eye towards any evidence you submit in support of your assertions regarding hardship.

Do not file anything else until you obtain an attorney if you want to have a shot at overcoming this.

I also would not go on the thinking that since they only told you about the I212 to just file that for many reasons , one is a "lone I212" is rare consulates do not know what to do with them,so they float around and end up in a black hole bouncing from USCIS to Embassy post and waste lots of time. Also the circumstances of your case are somewhat unique and indicate the consular simply made a mistake in admitting the need for the I601 unlawful presence waiver so you could end up waiting a very long time trying to process the I212 which will have a 50% chance of going into oblivion to later find you also needed the I601.

It's very nice that you are trying to help but the majority of what you are posting is incorrect. A K-visa petitioner is also a qualifying relative, in addition to a USC?LPR spouse or parent, for the purposes of a waiver of inadmissibility...according to the 601 directions and form.

Also, an inspected fraudulent entry is not considered an EWI under current caselaw. That could change, but right now that's not considered an EWI.

The OP did not mention what type of visa he entered the US with or what his authorized duration of stay was. You're assuming that it was 6 months, but it was likely longer since the consulate didn't find him inadmissibile for unlawful presence.

Lone 212's for fiance petitions are filed at the consulate abroad whereas lone 212's for other petitions are filed where the removal occured. It can be a "black hole" especially when filed in the US, but I've seen better results with lone 212's filed abroad bc they are waiting in a "line" with other waivers while the others just sit on some desk in the US.

To the OP:

As for the 212 waiver, I can't see why one is necessary if he wasn't removed. In a situation where enters fraudulently or misrepresents themsef a 601 saiver is necessary. I just don't understand why you weren't told about it...but the consulate makes mistakes all of the time.

I wouldn't get discouraged if I were you. Honestly, lying to obtain a visa is a BIG DEAL. It's a difficult inadmissibility to overcome but it's not impossible. You need a very very experienced lawyer in dealing with this case as it's somethign you don't want to handle alone.

From our experience, we needed the 601 and the 212. The 212 was because of my spouse's deportion while the 601 was for his fraudulent entry under the visa waiver program and overstay. It was approved in April 09 and my spouse was back home to our family after 2.5 years apart. Good luck to you!

Edited October 4, 2010 by momof1

Used to be broken · October 5, 2010

It's very nice that you are trying to help but the majority of what you are posting is incorrect. A K-visa petitioner is also a qualifying relative, in addition to a USC?LPR spouse or parent, for the purposes of a waiver of inadmissibility...according to the 601 directions and form.

Thanks for straightening me out on this. Interesting info. I was partially correct though

Because a K-1 (and K-2) applicant does not yet have the requisite relationship to a United States citizen, to qualify for an immigrant waiver, the approval of the Form I-601 is granted on a conditional basis. That is, USCIS makes a final determination on the eligibility for an immigrant waiver from inadmissibility once the applicant (or the applicant's spouse) has celebrated a bona fide marriage to the U.S. citizen who had filed April 28, 2009 8 the K visa petition. If the applicant establishes eligibility for the waiver when seeking a K-1 or K-2 visa, the adjudicator conditionally approves the application. The condition imposed on the approval is that the applicant (or the applicant's parent) and the U.S. citizen who filed the K visa petition will celebrate a bona fide marriage within the statutory time frame of three (3) months, from the day of the applicant’s (or the applicant's parent's) admission into the United States.

Also, an inspected fraudulent entry is not considered an EWI under current caselaw. That could change, but right now that's not considered an EWI.

*Now I just read conflicting information on this ,, but cannot find link to it so I take your word for it.

The OP did not mention what type of visa he entered the US with or what his authorized duration of stay was. You're assuming that it was 6 months, but it was likely longer since the consulate didn't find him inadmissibile for unlawful presence.

**I think what was said was the OP entered twice with a passport that belonged to someone else? So while it may have been "inspected" and not EWI, according to case law. I think the appropriate paperwork is the I601 for misrep, and unlawful presence. I cannot see how this could be thought of as other than "unlawful presence", because again he entered with ID of someone else. That person was the one who was authorized entry not the person who was here. ? I don't think because the consulate didn't get to the question of if the previous presence was "unlawful" it doesn't mean it won't come up after processing the I212 because like you said, it doesn't make sense. So the reason I am saying you should get a lawyer to check this out is time wise for the OP it would be better to be prepared and address both issues, than go through the process and get denied anyway because of the need for the I601 as well. Also most lawyers will do both for the same fee at the same time, but if you have to go back and ask for more work later probably will be charged additonal attorney fees.

Lone 212's for fiance petitions are filed at the consulate abroad whereas lone 212's for other petitions are filed where the removal occured. It can be a "black hole" especially when filed in the US, but I've seen better results with lone 212's filed abroad bc they are waiting in a "line" with other waivers while the others just sit on some desk in the US.

To the OP:

As for the 212 waiver, I can't see why one is necessary if he wasn't removed. In a situation where enters fraudulently or misrepresents themself a 601 waiver is necessary. I just don't understand why you weren't told about it...but the consulate makes mistakes all of the time.

I wouldn't get discouraged if I were you. Honestly, lying to obtain a visa is a BIG DEAL. It's a difficult inadmissibility to overcome but it's not impossible. You need a very very experienced lawyer in dealing with this case as it's something you don't want to handle alone.

From our experience, we needed the 601 and the 212. The 212 was because of my spouse's deportation while the 601 was for his fraudulent entry under the visa waiver program and overstay. It was approved in April 09 and my spouse was back home to our family after 2.5 years apart. Good luck to you!

edward toro · October 6, 2010

It's very nice that you are trying to help but the majority of what you are posting is incorrect. A K-visa petitioner is also a qualifying relative, in addition to a USC?LPR spouse or parent, for the purposes of a waiver of inadmissibility...according to the 601 directions and form.

Also, an inspected fraudulent entry is not considered an EWI under current caselaw. That could change, but right now that's not considered an EWI.

The OP did not mention what type of visa he entered the US with or what his authorized duration of stay was. You're assuming that it was 6 months, but it was likely longer since the consulate didn't find him inadmissibile for unlawful presence.

Lone 212's for fiance petitions are filed at the consulate abroad whereas lone 212's for other petitions are filed where the removal occured. It can be a "black hole" especially when filed in the US, but I've seen better results with lone 212's filed abroad bc they are waiting in a "line" with other waivers while the others just sit on some desk in the US.

To the OP:

As for the 212 waiver, I can't see why one is necessary if he wasn't removed. In a situation where enters fraudulently or misrepresents themsef a 601 saiver is necessary. I just don't understand why you weren't told about it...but the consulate makes mistakes all of the time.

I wouldn't get discouraged if I were you. Honestly, lying to obtain a visa is a BIG DEAL. It's a difficult inadmissibility to overcome but it's not impossible. You need a very very experienced lawyer in dealing with this case as it's somethign you don't want to handle alone.

From our experience, we needed the 601 and the 212. The 212 was because of my spouse's deportion while the 601 was for his fraudulent entry under the visa waiver program and overstay. It was approved in April 09 and my spouse was back home to our family after 2.5 years apart. Good luck to you!

Well Some of your informations is also incorrect.

Number one: Yes technically it is true that an I-601 can be filed by a fiance. But I have researched this before and there is NO evidence of an single approval on this scenario. So, NOT technically, It is impossible.

Number 2: If the embassy did not give you a letter that says that your fiance has been found ineligible, you should proceed with the I-212 alone. If the embassy did a mistake, you will have some special treatment if you have to refile. It kind of happened to me. So I speak from personal experience.

Go and follow the embassy instructions. If they did a mistake you will be in a good position. Oh and by the way if you end up needing to file an I-601 you have no chance at all of getting it approved as a fiance 0%.

Edited October 6, 2010 by edward toro

momof1 · October 7, 2010

Well Some of your informations is also incorrect.

Number one: Yes technically it is true that an I-601 can be filed by a fiance. But I have researched this before and there is NO evidence of an single approval on this scenario. So, NOT technically, It is impossible.

Number 2: If the embassy did not give you a letter that says that your fiance has been found ineligible, you should proceed with the I-212 alone. If the embassy did a mistake, you will have some special treatment if you have to refile. It kind of happened to me. So I speak from personal experience.

Go and follow the embassy instructions. If they did a mistake you will be in a good position. Oh and by the way if you end up needing to file an I-601 you have no chance at all of getting it approved as a fiance 0%.

You should really go to I2us before you say things like that. I can name, off the top of my head, 5 members from Mexico alone with 601 aproved in conjuction with fiance visas. I can also name members from Sweden and from Tunisia. Remember, that the small snippet of people I can name off of the top of my head are just a small percentage of 601/K1 approvals. The internet paints a very small picture of what's really happening. For every one I find, there are many many more out there.

I can give you names if you like.

I never advised the OP to file anything that hasn't been requested of them. They do, however, make mistakes all fo the time. I can also give you a list of people who filed 601's on one inadmissibility and after approval were found inadmissible on other grounds thus requiring another 601 approval for that.

Edited October 7, 2010 by momof1

momof1 · October 7, 2010

Brokenfamily read matter of orozco about the fraudulent entry being inspected

Used to be broken · October 7, 2010

Well Some of your informations is also incorrect.

Number one: Yes technically it is true that an I-601 can be filed by a fiance. But I have researched this before and there is NO evidence of an single approval on this scenario. So, NOT technically, It is impossible.

Number 2: If the embassy did not give you a letter that says that your fiance has been found ineligible, you should proceed with the I-212 alone. If the embassy did a mistake, you will have some special treatment if you have to refile. It kind of happened to me. So I speak from personal experience.

Go and follow the embassy instructions. If they did a mistake you will be in a good position. Oh and by the way if you end up needing to file an I-601 you have no chance at all of getting it approved as a fiance 0%.

Number 1. This is tricky, because while they may allow you to file an I601 as a fiance even though you are not "technically" a qualifying relative, you only get "conditionally approved" and the approval is not FINAL until after you are legally married which then makes you legally a qualifying relative.

Also if they allow the fiance to file, they must have had a reason I don't think it is impossible to get an approval, a lenghty common law marriage or relationship, one where there are children involved, a fiance who has no family ties except the petitioner.. all come to mind. There are a myriad of other situations. They look at the whole picture and if you have been reading this and other forums you will see different cases are approved or denied for different reasons. Longer marriages sometimes have a better shot because they involve more equities, but I would not say as a general rule a fiance could not get an approval.

Number 2: The consulate is a "gate keeper" and generally has knowledge of the inadmissabilities but.. they make mistakes. The OP said the problem was misrepresentation, which cannot be waived on the I212. The I212 deals with exclusions and deportations. So either the consulate made a mistake or the OP has two issues. But filing the I601 on a misrep issue is not going to work, and it can't hurt to file both, the I212 is just another form. What is lost if they follow the mistaken consular advice is potentially lots of time. Depending on which country the OP is going through it could cost years to do it the way the consulate told them if its wrong which I am pretty sure it is for misrep.

This is why people have attorneys! They need to talk to one.

Used to be broken · October 7, 2010

Here is another resource; It talks about consular's making this kind of mistake

VI. Adjudication of the Waiver(s)

A. Overview

1. Identification of ground(s) of inadmissibility

First, it is incumbent upon the adjudicator to make a determination that the applicant is

inadmissible and identify all inadmissibility grounds that apply; the adjudicator should not

assume that the Consular Officer correctly identified the inadmissibility grounds. If additional

inadmissibility grounds are identified, they should be noted in the decision. See Appendix 1 for

a list of inadmissibility grounds that should be considered.

2. Determination that applicant is admissible

If the adjudicator determines that the Consular Officer erred and that the applicant is in fact

admissible to the United States, the application should be returned to the DOS and the applicant

notified. The database should be updated to reflect that the application has been closed and

returned to DOS because the applicant is admissible.

3. Identification of inadmissibility grounds based on events not included in the

Form I-601

If the adjudicator identifies additional inadmissibility grounds based on events that are not

included in the Form I-601 (for example, there is evidence in the record of a material

misrepresentation to gain an immigration benefit, but the consular officer only noted an unlawful

presence inadmissibility ground and the applicant only addressed that in the Form I-601), the

adjudicator must advise the applicant to submit a revised Form I-601 to address the additional

eligibility grounds. The applicant should be given 45 days to submit a revised Form I-601,

without fee, directly to the USCIS office that is adjudicating the waiver. If the applicant also

needs to obtain consent to reapply, and, from the evidence filed with the Form I-601, the

adjudicator believes that the Form I-601 would probably be approved, if the Form I-212 were

filed and approved, the adjudicator should inform DOS and give the applicant an opportunity to

file Form I-212, with the appropriate fee with the consular office, and provide the applicant 45

days to file. If the adjudicator concludes that the Form I-601 would be denied, regardless of

whether a Form I-212 were approved, the adjudicator may deny the Form I-601 without asking

the applicant to file a Form I-212 also. If the applicant fails to timely submit a revised I-601, or

I-212, as applicable, and no extension of time has been granted, the Form I-601 should be denied

as a matter of discretion, because the applicant remains inadmissible based on the inadmissibility

ground not addressed in the waiver application, or for failure to obtain consent to reapply for

admission.

4. Identification of inadmissibility ground for which no waiver is available......

Used to be broken · October 7, 2010

Brokenfamily read matter of orozco about the fraudulent entry being inspected

I feel you Momof1.. lets hope that the adjudicator and the district director who signs off on the case read it. Its also an appeal decision isn't it? A little bit different territory and much longer route to a final decision. Always the fall back position on complicated cases is HIRE AN EXPERIENCED Attorney with experience with your type of case fact pattern.

Edited October 7, 2010 by brokenfamily

tmojica · October 7, 2010

In our case, my fiance entered the U.S. two times on a work visa (using his brother's identification). Since the Dominican Republic consulate officer only advised us to file the I-212, we are in the process of putting the form with attachments together. We also consulted with an immigration attorney who told us that we should follow the instructions given to us at the interview (which is to only file the I-212). I have called the Dominican Republic Consulate on more than 2 occasions to verify that we only need to file the I-212 and have been informed that it is accurate and then an investigation will be performed. Hopefully this works.

Used to be broken · October 7, 2010

In our case, my fiance entered the U.S. two times on a work visa (using his brother's identification). Since the Dominican Republic consulate officer only advised us to file the I-212, we are in the process of putting the form with attachments together. We also consulted with an immigration attorney who told us that we should follow the instructions given to us at the interview (which is to only file the I-212). I have called the Dominican Republic Consulate on more than 2 occasions to verify that we only need to file the I-212 and have been informed that it is accurate and then an investigation will be performed. Hopefully this works.

Identification of inadmissibility grounds based on events not included in the