I-130 Petition Question

[Fuentes 0]

Hello. I am starting this process. My husband is from Guatemala, and I am a US citizen. When you file the I-130, Do you file from here? My husband still lives here and I want him to stay as long as possible throughout the process. But, at what point does he need to return to continue this process? Do we file here, have interview,wait for answer (probably denial since he entered without inspection) and then, does he return? Or later in the process?

Thanks for your help!

[RICARDO4EVA2 194]

Hello. I am starting this process. My husband is from Guatemala, and I am a US citizen. When you file the I-130, Do you file from here? My husband still lives here and I want him to stay as long as possible throughout the process. But, at what point does he need to return to continue this process? Do we file here, have interview,wait for answer (probably denial since he entered without inspection) and then, does he return? Or later in the process?

Thanks for your help!

yes the form is filed here since he is in the usa.

US. Postal service:

USCIS

P.O. BIX 805887

Chicago, IL 60680-4120

OR iF Sending with DHL, UPS, FEDEX ETC.

USCIS

ATTN: FBAS

131 South Dearborn - 3rd floor

Chicago, IL 60603-5517.

He will be able to stay here throughout the process. Now there is a strong posibility maybe (90%) he will be unable to adjust status since he entered the United States illegally. With that - he will have to go back to his home country and do the necessaries there. At the time of the inteverview and since he would have commited a crime against U.S. Immigration he can submit a Waiver... which may require some work.

Hope this helped.. other might have something else to add... good luck.

Edited October 3, 2010 by RICARDO4EVA2

[Fuentes 0]

Thank you for your reply.

So, if I understand the process correctly...

1. We file the I-30 via Mail
   
2. Then, wait for receipt
   
3. Wait for interview date
   
4. Go to the interview, where most likely he will denied bc he EWI
   

Now, at the time of the interview, is that when we submit the waiver? Or is that done via mail after the denial. Now, are you denied immediately at the interview, or are you sent a letter?

[canadian_wife 1,822]

Your husband will need to return for the interview. Because he entered without inspection in 2001, he will be denied a visa and given a 10 year ban. This ban can be overcome with the I-601 waiver in which you will need to prove how you will suffer extreme hardship if he is not returned to the US. during the time of the waiver filing and approval (which can take months) it is critical that he does not attempt to return to the US amd EWI.

You should certainly contact a lawyer as an I-601 should not be written without legal consultations. Laural Scott is an expert in inadmissability and waivers, she offers a free chat on wednesdays at scottimmigration.net. Also, immigrate2us.net is a site that specializes in the sort of situation you are in

Good luck

[Anh map 2,098]

Thank you for your reply.

So, if I understand the process correctly...

1. We file the I-30 via Mail
2. Then, wait for receipt
3. Wait for interview date
4. Go to the interview, where most likely he will denied bc he EWI

Now, at the time of the interview, is that when we submit the waiver? Or is that done via mail after the denial. Now, are you denied immediately at the interview, or are you sent a letter?

Hubby could be facing a ban (can't enter the US for a period of years) so before he leaves the US you two should get some specific advice from a qualified immigration attorney.

[Fuentes 0]

So the interview is done in Guatemala and not the US?

[ScottThuy 140]

unless he was here after a valid entry.. but since he is not.. he will have to get it done there...

[canadian_wife 1,822]

No, the interview will be in his home country - you say he entered EWI, unless he is legally in the US (which does not seem to be the case) then he will have to leave and will face the ban

Contact a competent attorney for the waiver packet

Good luck

[JimVaPhuong 4,863]

Thank you for your reply.

So, if I understand the process correctly...

1. We file the I-30 via Mail
   
2. Then, wait for receipt
   
3. Wait for interview date
   
4. Go to the interview, where most likely he will denied bc he EWI
   

Now, at the time of the interview, is that when we submit the waiver? Or is that done via mail after the denial. Now, are you denied immediately at the interview, or are you sent a letter?

It's not quite as easy at that.

First, let's cover the options you have while he's still here in the US. Basically, you don't have any options. There are very few ways that someone who entered without inspection can remain in the US and get a green card. The most common would be the LIFE act, but your husband doesn't qualify - he'd need to have been present in the US on December 21, 2000 (he'd have to be able to prove this), and he'd need to have had an immigrant visa petition filed on his behalf before April 30, 2001. If he was eligible (which he's not) he could apply for a green card by paying a $1000 fine.

Pretty much the only other option would be an asylum application, but that's virtually guaranteed to to be denied for someone from Guatemala. If he's lucky, the application would only be denied, and he'd be given the opportunity to voluntarily depart the US without being deported. If he's not lucky, the application would be denied, he'd be deported, and he'd need TWO waivers to get back into the US - one waiver for the overstay, and one for the deportation. If he's REALLY unlucky, they'd determine his asylum application was frivolous, and ban him from the US for life with no possibility of a waiver. Seriously, it ain't worth it - don't even think about it.

Ok, the only way he's going to become legal in the US is to go back to Guatemala and apply for a spousal visa. Let's assume he leaves voluntarily, and doesn't get deported. The visa process begins with you submitting the I-130 petition. There are several more steps before he'll get to apply for the visa. You can read about them here:

http://www.visajourney.com/forums/index.php?autocom=custom&page=i130guide1

Once your petition is approved, it will be forwarded to the National Visa Center (NVC). What happens there, and what you and your husband need to do, is outlined here:

http://www.visajourney.com/examples/NVC_Process_Flowchart_v1-2.pdf

When you've completed those steps, they'll forward the petition to the consulate in Guatemala and he'll be able to apply for a visa. They'll schedule a visa interview for him at the consulate.

The visa will be denied because he overstayed more than 1 year. There's no "probably" or "90%" - it WILL be denied. He can submit the waiver petition as soon as the visa has been denied. This means you and your qualified immigration attorney should have prepared the waiver petition package before he goes to the interview. After that, you wait - anywhere from a few weeks to several months or more. If the waiver is approved, he'll get the visa, return to the US, and get a green card shortly after arriving. If the waiver is denied, you can try again. In the worst case, he'll have to sit out the 10 year ban before they can approve his visa.

The EWI is a serious impediment, and the I-601 waiver is difficult to get. If you're really bright, and willing to dedicate potentially hundreds of hours into studying what you need to do, then you may be able to do this yourself. If you're not absolutely confident that you can do this as well as an experienced immigration lawyer then you should hire a lawyer.

Disclaimer: The above advice presumes there are no other mitigating factors we've not been told about, such as a felony conviction, or a false claim of US citizenship by the immigrant, etc.