Foreign filed I-601 v's adjustment based I-601's

[northern member 0]

Hi folks,

My wife and I are making a run at applying for AOS. We have consulted with several local attorneys and it looks like we need to include an I-601 along with our I-485 application (we dont have a consensus on this yet but we're leaning toward doing it). We have a consultation with a very well known and respected attorney who specializes in the hardship waiver application process and we were just wondering if the typical USCIS field office adjudication of this waiver application is the same for US based applicants as it is for embassy/consular based apps. There is just a wealth of information regarding foreign filed I-601's and not too many AOS related ones, seemingly.

The 601 application in question is regarding a VWP overstay and is to overcome a 10 year bar. Our case has no aggravating factors (beyond the basis of needing the waiver) and as has , very sadly, a strong mitigating consideration by way of a serious, ongoing and declining health condition of the USC.

We are extremely nervous as there is so much at stake but we feel we need to act, take our chances and hope for the best. We are very intimidated by the 601 process as it seems enough research will drive even the most confident of applicants to question their actions and shy away from the risk. We would just like to know if the standards by which our application will be assessed are consistent with those applied in the embassies and how peoples personal experiences have been when undertaking a (hopefully similar) 601 simultaneously with a 485.

We will post a timeline and a detailed log of the journey once we actually pull the trigger so others in our position may have some insight into the day to day process. We would like to thank you all in advance for your input, feedback and positive thoughts!

[Harpa Timsah 13,258]

is the immigrant in the US now and has never left the country after his overstay? In other words, did the immigrant come to the US on the VWP, and never leave, and now is filing AOS? If so, then there is NO NEED for a I-601 waiver. Overstay is irrelevant/forgiven for spouses of US Citizens adjusting in-country.

And you say a reputable lawyer told you you needed one?

[northern member 0]

Hi Harpa,

Thanks for wading in. We wish that were the case. Unfortunately the immigrant came to US on the VWP and overstayed by nearly 4 years, then left and returned and has remained in the US continuously for the past 7 years.

We are pretty sure this requires a waiver.

[Harpa Timsah 13,258]

How was the immigrant able to come back? There should have been a ban and entry should have been impossible. If entered by fraudulent means, then things get much worse.

I only know of one member who did an in-country I-601, and it was a Canadian with a very minor CIMT charge (minor shoplifting) who was allowed to continue using the Canadian Visitor agreement and later did AOS.

I'd mosey on over to immigrate2us.net I think they have a whole forum for in-country waivers.

[northern member 0]

How was the immigrant able to come back? There should have been a ban and entry should have been impossible. If entered by fraudulent means, then things get much worse.

I only know of one member who did an in-country I-601, and it was a Canadian with a very minor CIMT charge (minor shoplifting) who was allowed to continue using the Canadian Visitor agreement and later did AOS.

I'd mosey on over to immigrate2us.net I think they have a whole forum for in-country waivers.

Harpa

No fraudulent re-entry. The immigrant entered as a tourist again on the VWP with their own passport. No misrepresentations were made upon re-entry.

[Harpa Timsah 13,258]

Okay, well that's good. But I am still confused how that was able to happen. Not only did the immigrant have a ban which should have appeared at POE, but the immigrant was ineligible to use the VWP again because of the overstay (even a 1-day overstay will render the VWP unusable in the future). I guess their records weren't synched or something?

I checked that there is an in-country I-601 forum at immigrate2us.net

Good luck.

[Sergi9 110]

Harpa

No fraudulent re-entry. The immigrant entered as a tourist again on the VWP with their own passport. No misrepresentations were made upon re-entry.

Was the alien already married on the second entry?

[northern member 0]

Was the alien already married on the second entry?

No. The immigrant didnt meet the USC until about 2.5 years after the second entry.

[Sergi9 110]

No. The immigrant didnt meet the USC until about 2.5 years after the second entry.

I would not file the I601 with the I485. Wait until USCIS asks for it, if they ask for it.

[Sergi9 110]

I would not file the I601 with the I485. Wait until USCIS asks for it, if they ask for it.

As for the standard of extreme hardship, the legal standard is a flat field sunny day in the law but the adjudicators way of interpreting it is all over the map.

*google Hake Hardship Scale and anything the author wrote you can find on hardship and waivers..

[northern member 0]

I would not file the I601 with the I485. Wait until USCIS asks for it, if they ask for it.

Thank you Sergi. I appreciate your input.