Appeal requirement for I-601

[wshc 46]

Is there any way to appeal the decision of the Consular Officer after an immigration interview?. Basically, they say we must now file an I-601 waiver, [(Section 212(a)(9)(B)(I)(I)], but I disagree and have evidence to support my case. But how can that decision be appealed? I can find no procedure to appeal that decision. Does everyone just accept the decision of the Consular Officer without question?

If appealed and we did not have to file the I-601 waiver the visa would be issued quickly. With the waiver the additional time could be 6 months or more as you all know.

Thanks in advance for any advice anyone may have.

Edited September 3, 2011 by wshc

[Used to be broken 147]

Is there any way to appeal the decision of the Consular Officer after an immigration interview?. Basically, they say we must now file an I-601 waiver, [(Section 212(a)(9)(B)(I)(I)], but I disagree and have evidence to support my case. But how can that decision be appealed? I can find no procedure to appeal that decision. Does everyone just accept the decision of the Consular Officer without question?

If appealed and we did not have to file the I-601 waiver the visa would be issued quickly. With the waiver the additional time could be 6 months or more as you all know.

Thanks in advance for any advice anyone may have.

You have to get an attorney to request and advisory opinion on your behalf there, I am not sure there is any way this can be overcome without an attorneys help. The problem is Consular decision is not reviewable by any entity. They don't like to be challenged either so its a catch 22.

It seems you are saying they are charging you with unlawful presence and you dispute that conclusion, correct. What are the circumstances?

Alternately you can have US Citizen Spouse contact the Senator most amenable to Immigration reform in her district or even try going to the DOS IG hotline and having US Citizen spouse complain to them. Not sure how far either of them might get you in the meantime prepare the I601, and get the ball rolling USCIS will say its not necessary and you can have all tracks running at same time first one that gets traction should get you back in US. Good luck

Edited September 6, 2011 by Used to be broken

[wshc 46]

This is an edited version of what I submitted to USCIS in Frankfurt to review the case.

Here is a review of the time line –

August 17, 2009 - Jan 31, 2010 – 137 Days

Entry in to the United States.

Feb 01, 2010 - June 03, 2010 – 123 Days

Filing of I-90 - Application denied

June 4, 2010 - June 23, 2010 – 20 Days

Prescense in USA

Explaniation

As the time line shows, my wife does not meet the 180 day threshold to trigger a 3 year ban. There was never any intent of fraud or any other kind of dubious attempt. We simply filed the wrong form the first time around, which quite frankly was due to our "consultation" at the Denver USCIS office. At the time I did not understand this complex and confusing process at all. If I would have known then what I know now we would not have filed the I-90 but instead the i-130 and i-485. That without a doubt is the correct procedure I now know.

I have clearly demonstrated however, why the 3 year ban does not apply. The law does allow for discretion in these cases and I feel that the requirement that my wife file a 601 Waiver of Inadmissibility be removed and the continuation of the issuance of her immigrant visa continue without delay. We have been apart for over 14 months now due to mistakes by us as well as USCIS.

Recent decisions and directives by the Government indicate that the current intent of the government is to cancel deportation proceedings for low-priority immigration offenders - “To keep families together”. In that same spirit, the requirement for a 601 waiver needs to be reconsidered and my wife and I (and our children) need to be reunited. The authority to do that is in Frankfurt.

Edited September 6, 2011 by wshc

[Sweetcheeksss 91]

At the conclusion of my interview, the officer made the recommendation for a waiver (I had a petty theft in my past and clearly should have been under the petty theft exclusion) but he said I needed a waiver.

I hired Laurel Scott, she sent two legal rebuttals to the consulate, citing the State Dept's petty theft exclusion, explanation on how and why I clearly fit the requirements of that exclusion, court rulings to support past petty theft exclusion rulings AND even an advisory opinion ruling that addressed my exact circumstances.. (in fact, directly to the officer who interviewed me) both times he insisted I needed a waiver. Eventually she filed an advisory opinion request, plus she made a request to the ombudsman's office for help AND we had the assistance of a very knowledgeable immigration/military lawyer. Almost 4 months later, we got the decision reversed, no waiver needed and now I am living in the US with my family.

Make no mistake tho. Throughout my process, Laurel warned me many times that even if the advisory decision board ruled in my favor, there is NOTHING in place to force the interviewing officer to change his/her mind. Not even the Immigrant Visa Chief can force the officer to change their decision.

Edited September 6, 2011 by Sweetcheeksss

[wshc 46]

At the conclusion of my interview, the officer made the recommendation for a waiver (I had a petty theft in my past and clearly should have been under the petty theft exclusion) but he said I needed a waiver.

I hired Laurel Scott, she send two legal rebuttals to the consulate (in fact to the officer who interviewed me) both times he insisted I needed a waiver. Eventually she filed an advisory opinion request, plus she made a request to the ombudsman's office for help AND we had the assistance of a very knowledgeable immigration/military lawyer. Almost 4 months later, we got the decision reversed, no waiver needed and now I am living in the US with my family.

Make no mistake tho. Throughout my process, Laurel warned me many times that even if the advisory decision board ruled in my favor, there is NOTHING in place to force the interviewing officer to change his/her mind. Not even the Immigrant Visa Chief can force the officer to change their decision.

thanks for the very good information - Here is the question - what to do? If we just file the waiver, hope for expedition maybe, then this could all be over within 4 moths. Again it could take 6 months, get denied and take another 2 years for an appeal (of course the 3 year ban would be long over by then.)

decisions, decisions!!

[Sweetcheeksss 91]

It's a difficult decision to be sure.

In my case, we were 100% sure that the officer was wrong. There was case law, actual previous adjudicated immigration cases AND at least two advisory opinion rulings that addressed exactly the reason my interviewing officer was using to deny my visa.

And thank God, we were successful.

[milimelo 4,477]

Did beneficiary enter the US on WVP or B1/B2 visa?

[wshc 46]

Did beneficiary enter the US on WVP or B1/B2 visa?

VWP

Edited September 6, 2011 by wshc

[milimelo 4,477]

VWP

Both times? If yes, there's your problem - overstay on WvP and subsequent usage of WVP when no longer entitled to it. Nothing to do with number of days in overstay.

[belinda63 3,038]

I think I see the problem. She entered on August 17, 2009 and did not leave until June 23, 2010 which is a total of about 280 days minus the 90 days allowed by the VWP gives an overstay of 190 days. Because you filed the wrong paperwork and it was denied the time while it was processing is not suspended as far as any overstay calculation goes.

[wshc 46]

I think I see the problem. She entered on August 17, 2009 and did not leave until June 23, 2010 which is a total of about 280 days minus the 90 days allowed by the VWP gives an overstay of 190 days. Because you filed the wrong paperwork and it was denied the time while it was processing is not suspended as far as any overstay calculation goes.

Yes that is the way it looks. Thanks everyone for all of the good information.

[Brother Hesekiel 2,236]

I remember most of your case from way back when your wife entered, you did the AOS thing, got denied, and so on. Here's my advice: let Laurel Scott file an I-601 for you. Don't think you can do that on your own. If you do and it gets denied, you'll be back to square one. You have been separated from your wife only because you did the wrong things, not morally, but in regard to required USCIS procedures. Don't continue on this path; instead, bit the bullet and get professional help where it is needed.

[Sergi9 110]

I think I see the problem. She entered on August 17, 2009 and did not leave until June 23, 2010 which is a total of about 280 days minus the 90 days allowed by the VWP gives an overstay of 190 days. Because you filed the wrong paperwork and it was denied the time while it was processing is not suspended as far as any overstay calculation goes.

that is exactly correct. When denied it counts against you in the overstay calculation. FYI unless something is seriously wrong it is not likely you will get the expedite... but Frankfurt is not taking that long to process I601.

Laurel Scott is not the only game in town, but at this point its clear you need an attorney.

Edited September 7, 2011 by Sergi9

[Boiler 45,478]

Consulates do not have the authority to overlook bans.

[wshc 46]

I remember most of your case from way back when your wife entered, you did the AOS thing, got denied, and so on. Here's my advice: let Laurel Scott file an I-601 for you. Don't think you can do that on your own. If you do and it gets denied, you'll be back to square one. You have been separated from your wife only because you did the wrong things, not morally, but in regard to required USCIS procedures. Don't continue on this path; instead, bit the bullet and get professional help where it is needed.

Good advice from everyone on here. Thanks

If we decide to go the waiver route than a lawyer would come in to play. I can't beleive that I need a lawyer to deal with my own government. But that is the way of the world I guess.

I will keep you updated either way. Been looking at www.arbeitsamt.de a lot lately, so might be giving the Germans my income tax if the amis don't want it.

Best of luck to all

Edited September 7, 2011 by wshc