filing sponsorship of second spouse

[ceadsearc 516]

Isn't an I-601 where you have to show hardship? I'm healthy, I own my own home & I have a good job but I'm definitely not rich. No sick relatives or kids to care for, etc.

It is. If your fiancé has incurred a 10-year ban - even if he is not yet aware - due to leaving the country after overstaying more than a year (which sounds likely), then your AOS will be denied and he will either need to leave the US for 10 years before reapplying, or a 601 waiver will need to be filed showing that his being banned would be an undue hardship on you.

[beandippy2000 0]

We are both -- unfortunately -- aware of the 10-year ban.

OK, but both my ex-h and my fiance's brother had overstayed by at least a year and they both got green cards? I don't recall an I-601 for my ex-husband.

[ceadsearc 516]

We are both -- unfortunately -- aware of the 10-year ban.

OK, but both my ex-h and my fiance's brother had overstayed by at least a year and they both got green cards? I don't recall an I-601 for my ex-husband.

The overstay isn't an issue unless the person leaves the country. Leaving is what triggers the ban. Somehow your fiancé was allowed back in despite leaving though he probably shouldn't have been. But he is still subject to the ban as leaving is what triggers it - even if CBP mistakenly allowed him back in.

[beandippy2000 0]

Would the 10-year ban start from the time he first overstayed? Or would it begin again if he were subject to deportation when we file the paperwork? Would he now be banned for 20 years if he technically overstayed twice.

Gosh, I guess we need an attorney.

[ceadsearc 516]

Would the 10-year ban start from the time he first overstayed? Or would it begin again if he were subject to deportation when we file the paperwork? Would he now be banned for 20 years if he technically overstayed twice.

Gosh, I guess we need an attorney.

It should have begun when he left the country but it appears it didn't. So it would most likely begin when he is denied for AOS and put into removal proceedings and leaves the country.

Edited December 22, 2011 by ceadsearc

[beandippy2000 0]

it almost sounds like we don't even have a chance & shouldn't bother filing at all?

I just don't understand how it was so easy for his brother and for my ex.

He says he talked to an immigration attorney in 2009 or 2010 when he was married to his ex. I am surprised the attorney didn't tell him about this then.

[jojolicious 38]

it almost sounds like we don't even have a chance & shouldn't bother filing at all?

I just don't understand how it was so easy for his brother and for my ex.

He says he talked to an immigration attorney in 2009 or 2010 when he was married to his ex. I am surprised the attorney didn't tell him about this then.

Get a couple consultations with a few experienced immigration attorneys so you can compare advice but IMHO you definitely need to use an attorney.

The other thing I would tell you is to ask your SO to show you his I-94...

[ceadsearc 516]

it almost sounds like we don't even have a chance & shouldn't bother filing at all?

I just don't understand how it was so easy for his brother and for my ex.

He says he talked to an immigration attorney in 2009 or 2010 when he was married to his ex. I am surprised the attorney didn't tell him about this then.

No one can tell you your chances. A skilled immigration attorney is needed. Laurel Scott does free chats weekly, and is skilled in waivers. I suggest you start there. Also check out the immigrate2us forums as they deal with this more frequently. Not filing dooms him to be permanently out of status.

I assume the attorney didn't mention it because they were either not knowledgeable on it or because they were unaware of the entire situation.

You keep mentioning your ex and your fiancé's brother, but did either of them overstay more than 180 days and then leave the country and then return prior to serving out a ban?

[UK_Fan 192]

He has a friend who is in the same situation -- entered legally in 2001 but stayed here 10 years without any criminal record, no US kids, no spouse. The friend hired an attorney and the attorney filed some type of paperwork to get him a work authorization, but no permanent residency. So his case is in kind of limbo. My fiance talked to an attorney to see if this is an option for him, but was told it would be about $10K in legal fees, which he & his family do not have.

something is not right there.. there is no way (and i consulted with a lawyer) that his friend got a work authorization out of nowhere... something is fishy there. According to what my lawyer said when i first consulted with her, an overstay only has 2 options.. either return home or marry a US citizen.. the only other time the lawyer can get you out of this mess is if you had been picked up by immigration and detained and are under deportation proceedings.. and then and only then lawyers will charge you up to 10 grand and get you out of it...

but as far as i know, an illegal can't just come to a lawyer and ask him for the help with some kind of authorization.

[Boiler 45,558]

The interesting issue is how he entered the second time.

It does look more likely that consular processing will be involved.

[beandippy2000 0]

OK, so I checked on a couple of things last night.

1. When he came in 2005, he flew to/from Mexico. When he came in, he said they asked a lot of questions and he said that yes, he'd been in the US from 2000-2004 without going back to Mexico. So he was honest. The person who had inspected him recognized that he had overstayed his visa, but still let him into the country. I asked him how he had been able to enter given that he'd overstayed, but he had no idea. He said the guy asked him a lot of questions and then finally let him enter.

2. His parents used to drive to/from Mexico with their relatives (who are citizens, cousins, I think) after staying here 2 or 3 years at a time. When leaving the US, the officer only checked the passports of the driver. So, they left the US many times without a date stamp saying that they'd left, and had no trouble coming back even though they'd outstayed the date on their original I-94. We read on-line last night that this is becoming rare, though, now the officer checks everybody in the car.

3. The case of the other guy...he got picked up for something. traffic violation or working with false papers. And he was referred to deportation hearings. He did spend $8K on an attorney to get the work auth.

4. Both the brother and the ex have overstayed by more than 1 year. Brother has been here since 2001, never returned to Mexico. My fiance worked 2+ jobs to pay for his brother's education in a private middle school & high school because they were nervous about sending him to a US public school. I don't remember anymore when my ex came/went as it was before I had met him. At the time that we had met & married, he had already overstayed. I am curious to talk to the brother's attorney.

[ceadsearc 516]

It sounds like he shouldn't have been let back in when he returned from Mexico. I would definitely talk to an attorney, because chances are he will get the ban and you'll need the hardship waiver but I am not a lawyer and do not work for USCIS, so I cannot say for sure - perhaps there are exceptions since he was let back in.

As for crossing at land borders - this used to be a lot easier for people to come/go and it sounds like they basically got away with it. In your fiance's case, though, since he flew there is a record of it.

The brother never ran into any trouble in adjusting because he didn't leave the US. Overstay is overlooked for spouses of citizens, provided the immigrant stayed in the US the entire time and did not trigger a ban by leaving.

If your fiance's brother's immigration attorney is a good one, I'd definitely talk to him and see what he says. Also, please consider participating in one of Laurel Scott's chats (scottimmigration.net). She is a highly-touted attorney who is very well versed in waivers and can advise you on what may happen and where to begin better than anyone here can.

[beandippy2000 0]

Thanks for the advice, I just found Laurel's website & put it on my calendar to chat with her shortly after the first of the year.

The funny thing is, the brother's immigration attorney was my DIVORCE attorney, and he was horrible. But brother and others have used him for immigration cases and they are very satisfied. I am thinking I will get a few consults just to see. I am not sure I can afford $6K for Laurel just for the waiver process. Brother paid $3K for everything, but I guess his case was easier.

I can't get over this -- I thought I was done with USCIS after divorcing the ex. And now I find out that a mistake by CBP in 2005 may mean the loss of the man I love or possibly thousands of dollars in attorney fees. Sigh. We really do need some reform. Even if you are trying to do things the "right" way, it is so hard!!

I wonder if they would overlook a retroactive overstay since he will soon have a US spouse??

[Boiler 45,558]

1. When he came in 2005, he flew to/from Mexico. When he came in, he said they asked a lot of questions and he said that yes, he'd been in the US from 2000-2004 without going back to Mexico. So he was honest. The person who had inspected him recognized that he had overstayed his visa, but still let him into the country. I asked him how he had been able to enter given that he'd overstayed, but he had no idea. He said the guy asked him a lot of questions and then finally let him enter.

That really does not sound right, especially at an Airport. His B2 was void as soon as he overstayed.

2. His parents used to drive to/from Mexico with their relatives (who are citizens, cousins, I think) after staying here 2 or 3 years at a time. When leaving the US, the officer only checked the passports of the driver. So, they left the US many times without a date stamp saying that they'd left, and had no trouble coming back even though they'd outstayed the date on their original I-94. We read on-line last night that this is becoming rare, though, now the officer checks everybody in the car.

They may well have claimed to be US Citizens, a life time ban with no waiver available.

3. The case of the other guy...he got picked up for something. traffic violation or working with false papers. And he was referred to deportation hearings. He did spend $8K on an attorney to get the work auth.

I am sure there is a lot more to the story than that.

4. Both the brother and the ex have overstayed by more than 1 year. Brother has been here since 2001, never returned to Mexico. My fiance worked 2+ jobs to pay for his brother's education in a private middle school & high school because they were nervous about sending him to a US public school. I don't remember anymore when my ex came/went as it was before I had met him. At the time that we had met & married, he had already overstayed. I am curious to talk to the brother's attorney.

If he entered with inspection and just overstayed he would be eligible to adjust through marriage to a USC.

[JimVaPhuong 4,863]

OK, so I checked on a couple of things last night.

1. When he came in 2005, he flew to/from Mexico. When he came in, he said they asked a lot of questions and he said that yes, he'd been in the US from 2000-2004 without going back to Mexico. So he was honest. The person who had inspected him recognized that he had overstayed his visa, but still let him into the country. I asked him how he had been able to enter given that he'd overstayed, but he had no idea. He said the guy asked him a lot of questions and then finally let him enter.

2. His parents used to drive to/from Mexico with their relatives (who are citizens, cousins, I think) after staying here 2 or 3 years at a time. When leaving the US, the officer only checked the passports of the driver. So, they left the US many times without a date stamp saying that they'd left, and had no trouble coming back even though they'd outstayed the date on their original I-94. We read on-line last night that this is becoming rare, though, now the officer checks everybody in the car.

3. The case of the other guy...he got picked up for something. traffic violation or working with false papers. And he was referred to deportation hearings. He did spend $8K on an attorney to get the work auth.

4. Both the brother and the ex have overstayed by more than 1 year. Brother has been here since 2001, never returned to Mexico. My fiance worked 2+ jobs to pay for his brother's education in a private middle school & high school because they were nervous about sending him to a US public school. I don't remember anymore when my ex came/went as it was before I had met him. At the time that we had met & married, he had already overstayed. I am curious to talk to the brother's attorney.

Ok, that explains a lot. His exit wasn't recorded so they can't prove he overstayed except by his own admission. CBP decided on that basis to go ahead and admit him. This is very similar to the other case I mentioned in my previous post.

Since he was admitted by CBP then I'd put the chances of USCIS approving his adjustment of status at around 50%. It would depend if they have evidence of his overstay beyond his having admitted it. If they have that evidence then they can conclude that CBP erred when they admitted him, and determine that a ban went into effect when he left the US. If he's denied then a good lawyer could easily stretch this out for a few years until the ban expires, and then he'd be able to adjust status.