WHEN to apply for the I601 waiver

[Val and Gary 29]

Hi,

Still newbies here, and reading more every day. It seems I MAY have incurred a 3 year ban with aggregate VWP overstays. I wasn't removed or deported, but I wasn't allowed re-admission on one trip. I was simply informed by Homeland Security that I would need to apply for a CR1 visa, and there would be no problem.

SO, we have submitted I-130 and I-129F applications, and are patiently waiting for approval. My question is this, with the aggregate overstays, and ban, do I WAIT until the interview to be denied THEN submit an I601 waiver, or can I submit the I-601 BEFORE approval of the I-130? Do I wait - and hope I get approved, or do I act now (if I can) with an I-601?

Thanks

[canadian_wife 1,827]

You cannot submit the waiver until your petition is denied, IF it will be denied you will submit the waiver then.

Some consulates allow for you to submit the waiver at the time of denial at the interview - someone more knowledgeable than I am will pipe up

GOod luck

[Val and Gary 29]

You cannot submit the waiver until your petition is denied, IF it will be denied you will submit the waiver then.

Some consulates allow for you to submit the waiver at the time of denial at the interview - someone more knowledgeable than I am will pipe up

GOod luck

Thanks.

Are you intimating there MAY be a chance, that, even though I have aggregated an overstay, it is very possible that I may be approved? Apart from that, I have no blemishes, no police record.

[canadian_wife 1,827]

Considering I know nothing about your case...I can only guess and to say for sure that you'll have a ban is not fair

maybe more info on your case would yield more specific answers

Good luck

[Used to be broken 147]

Hi,

Still newbies here, and reading more every day. It seems I MAY have incurred a 3 year ban with aggregate VWP overstays. I wasn't removed or deported, but I wasn't allowed re-admission on one trip. I was simply informed by Homeland Security that I would need to apply for a CR1 visa, and there would be no problem.

SO, we have submitted I-130 and I-129F applications, and are patiently waiting for approval. My question is this, with the aggregate overstays, and ban, do I WAIT until the interview to be denied THEN submit an I601 waiver, or can I submit the I-601 BEFORE approval of the I-130? Do I wait - and hope I get approved, or do I act now (if I can) with an I-601?

Thanks

Take a look at the dates to determine each individual overstay and how long it was. If no proceedings were entered into and it was less than 180 days each time on all overstays you might not have an issue; I don't think they add them up but look at each entry and exit. You were probably denied another entry because of this but you might not have a bar. And no you cannot submit the I601 before you get the VISA interview and they tell you what bar you have. If you were denied entry at POE instead of consulate, you might have to file I212? Not sure on that

H. Unlawful Presence - INA 212(a)(9)(B) and ©

1. Inadmissibility Provisions Based on Unlawful Presence

Inadmissible under

INA 212(a)(9)(B)(i)(I)

If an alien has resided unlawfully in the U.S. for an un interrupted

period of more than 180 days but less than 1 year and then voluntarily

departed, prior to the initiation of removal proceedings, he or she is

inadmissible to the U.S. for a period of 3 years from the date of

departure.

NOTE: If removal proceedings are initiated before the alien has been

in the U.S. for more than a year, and the alien leaves after initiation of

the removal proceedings pursuant to a grant of voluntary departure, but

before the alien has been unlawfully present for more than one year, the

alien is not subject to the three year bar. This is based on language in

the statute itself, which provides that someone with more than 180 days

continuous unlawful presence, but not more than a year of unlawful

presence is inadmissible only if he or she leaves before a removal

proceeding has been initiated. Thus, pursuant to statute, if the alien

leaves after removal proceedings are initiated (e.g., the NTA is filed

with EOIR and served on the applicant), INA 212(a)(6)(9)(B)(i)(I) no

longer applies. However, in this case, there is a chance that the alien is

inadmissible for failure to having attended a removal proceeding (INA

April 28, 2009

40

section 212(a)(6)(B)) and may also be inadmissible based on an in

absentia order of removal (INA section 212(a)(9)(A)). Therefore,

carefully check whether other ground of inadmissibility may apply in

this case.

Also, if the person stays more than one year, the person is inadmissible

under INA 212(a)(9)(B)(i)(II) which applies regardless of whether the

applicant is in proceedings or not.

See, 9 FAM 40.92 N2.1, INA 212(a)(9)(B)(i)(I) Departure Prior to

Commencement of Proceedings Required.

Inadmissible under

INA

212(a)(9)(B)(i)(II)

If an alien resided unlawfully in the U.S. for an uninterrupted period of

one year or more, then voluntarily departed or was removed from the

United States, he or she is inadmissible to the U.S. for a period of 10

years from the date of departure or removal.

NOTE: INA 212(a)(9)(B)(i)(II) does not include the “prior to the

initiation of removal proceedings” language that is included in

212(a)(9)(B)(i)(I). Thus, if the alien has been unlawfully present for

one year or more, the 10-year bar of inadmissibility applies whether or

not removal proceedings were ever initiated against the alien, and even

if the alien left once the proceedings were initiated.

2. Time Counted as Unlawful Presence

General time that counts as

unlawful presence

Unlawful presence includes any time spent in the U.S. after

April 1, 1997 after the alien’s authorized stay expires, and any

time spent in the U.S. after April 1, 1997, following entry

without inspection or parole, unless one of the exceptions

noted in section 3 below applies.

Unlawful presence must be

uninterrupted and alien must

have left the U.S.

The stay of the alien during which he or she accrues unlawful

presence must be uninterrupted, and the alien must have

subsequently departed from the U.S. for the alien to become

inadmissible under INA 212(a)(9)(B). The alien is not

inadmissible under INA 212(a)(9)(B) if the alien has accrued

the requisite amount of unlawful presence but never departs

the U.S.

Example: If an alien spent 90 days unlawfully in the U.S.,

departed from the U.S., spent 2 weeks abroad, returned to the

U.S., spent 100 days unlawfully in the U.S., and departed from

the U.S., the alien would not be inadmissible under INA

212(a)(9)(B)(i)(I). Despite having a total of 190 days of

unlawful presence in the U.S., the alien did not have at least

181 continuous and uninterrupted days of unlawful presence in

the U.S.

Edited October 8, 2010 by brokenfamily