Banned from VWP: Applying for I-130

[Divinia 0]

I may just be freaking myself out here but wanted to see if anyone had any experience with this. Here is how it plays out: I met my now husband in January of this year. He was visiting his uncle on the VWP and left before he was required too, so he did not over stay on the program. He went home on March 3rd and I went to visit him on March 21st. We really wanted to spend more time together so I convinced him to come back to America with me when I left and stay with his uncle again. This is where things get sticky. When we arrived in the US on April 2nd he never got through immigration. Apparently you must remain out of the country for 30 days on the VWP and we missed this by two days! The officers told a friend of the family who works at the airport that this was the only reason they had to stop him. They questioned him as to why he was coming back so soon and accused him of working illegally which I can assure you he was not. Since we were on a night time flight customs sneakily held him long enough that by the time they told him he could contact the consulate, they were already closed. They ended up sending him back on a flight that evening and banned him from using the VWP for life. They specifically stated he could come back to the US again, he just needed to obtain a visa. I have read through his paperwork and they really didn’t say why he was held or banned. They asked various questions like why his Facebook page stated he lived in Minneapolis and he answered because he had not changed it back when he went home which is true. (They asked him for his email password which he gave them and saw all of these status updates which is why they knew this) They also asked if his Facebook page had his friends wishing him luck, hoping everything works out for him in the future and to keep in touch and he said yes, that was from his last trip. I can attest that everyone in Ireland says Good Luck when you are even leaving their house so it shouldn’t have been incriminating. They asked if we were in a relationship as it stated it on his page and where I lived. Aside from that they just told him he was banned and needed to come back on an actual visa, not that he could never come back.

After he was sent back it was very apparent to us both that we didn’t want to live without each other. I flew back to Ireland at the beginning of June and we were married on June 8th. I am about to file the I-130 but am confused as to what I answer for question 16: Has your relative ever been under immigration proceedings? Everything I have read states this refers to a trial which never happened. I plan to provide the paperwork from his time spent at MSP with the nice Immigration Officers but is this considered a proceeding? If so, which is it? Removal; Exclusion/Deportation; Rescission or Judicial Proceedings? I would have thought it would have been Refusal but that is not an option.

I have read deeply into the subject and understand the facts about visa fraud and that they may think the intent was to be married here but it was not the case, we were just not thinking and he came back too soon. They said if he had waited two days he would have been fine. I just don’t want to answer this question wrong and additionally want to know if anyone else has jumped the hurdle of a VWP Ban on a I-130 or if we are going to run into more trouble.

Any help would be appreciated. Thanks!

[Harpa Timsah 13,258]

You can answer no. He was just refused entry, presumably for immigrant intent. That's all; it's not proceedings or deportation. The denial will have no impact on your spousal petition.

Edited June 19, 2012 by Harpa Timsah

[jaycali 415]

Sounds like a simple refused entry because he couldn't overcome suspected immigrant intent. Any refused entry will make you ineligible for the VWP.

Don't worry. If you file an I-130 and he applies for a CR-1 visa, the whole point of that visa is to immigrate. "Immigrant intent" is then the whole point, not something to overcome.

In immigration terms, this is a non-issue.

Edited June 19, 2012 by jaejayC