Visa Waiver Program Deportation Ban

[chff 0]

My husband is an Italian, and he came to the US back on February 2009 under a I-94 Visa Waiver Program, and he overstayed for almost 4 years. I am an US citizen, and we recently got married on September 2012 and filed AOS with I-130 and I-485 concurrently to USCIS on 12/12/12. We received I-797 notice of action from USCIS to do biometrics on 1/9/13. However, my husband got detained by ICE on 12/18/12. The deportation officer denied his rights to see a judge or get a bond and executed a removal proceeding. He is facing deportation by anytime from 1/10 -15. The deportation officer said that he will not have a bar for 10 years and only have a 5 years bar for using the visa waiver program. They told him that he can reapply a standard visa after he is deported back to Italy. Please advise if this is true or not as I have researched many cases that once you are deported, the bar maybe anytime between 3 years to 10 years based on how many days that you overstayed. Please let me know if there is any possibility to stop my husband from deportation based on the fact that we are in AOS pending status. Please advise! Thank you.

[Penguin_ie 5,996]

**** Moving from Student Visa to Waivers forum as question is about overstay ban ****

[together4evr 360]

How did ICE get involved?

Did he commit a crime?

Or did you sending in the paperwork make ICE come pick him up?

[Noah Lot 391]

My husband is an Italian, and he came to the US back on February 2009 under a I-94 Visa Waiver Program, and he overstayed for almost 4 years. I am an US citizen, and we recently got married on September 2012 and filed AOS with I-130 and I-485 concurrently to USCIS on 12/12/12. We received I-797 notice of action from USCIS to do biometrics on 1/9/13. However, my husband got detained by ICE on 12/18/12. The deportation officer denied his rights to see a judge or get a bond and executed a removal proceeding. He is facing deportation by anytime from 1/10 -15. The deportation officer said that he will not have a bar for 10 years and only have a 5 years bar for using the visa waiver program. They told him that he can reapply a standard visa after he is deported back to Italy. Please advise if this is true or not as I have researched many cases that once you are deported, the bar maybe anytime between 3 years to 10 years based on how many days that you overstayed. Please let me know if there is any possibility to stop my husband from deportation based on the fact that we are in AOS pending status. Please advise! Thank you.

He should get at least a 10 year ban, either for the overstay or the deportation or both...what prevented his return? And also note that while he can reapply, reapplying is NOT the same as being granted a visa (and certainly a tourist visa is out of the question)...sounds like you'll be required to eventually file an I-601 and an I-212, though how the both of you can make a case for 'extreme hardship' given his home country is Italy should be amusing.

Since he entered on the VWP (note the P stands for 'privilege') he waived his right to see an immigration judge...now before we hear how 'unfair' this is, had he returned to Italy at the end of 90 days, he would not have this issue...and whose fault is it that he did not return? Not CBP's. Not the immigration judge's. Not mine. Nor our 'unfair' laws......nope, the person who has total responsibility for this situation is the one whose face appears in the mirror each time he stands in front of it.

[canadian_wife 1,826]

How did ICE get involved?

good luck

[VanessaTony 3,567]

Since he entered on the VWP (note the P stands for 'privilege')

Actually it stands for "program". Visa Waiver Program

[VanessaTony 3,567]

It is my understanding that he should have a 10 year ban for the overstay, and a 5 year ban for the deportation. Those will be served together so really it is only 10 years but requires 2 waivers.

I don't know whether he'll be okay, depends on why he was detained. Usually with the VWP there is no appeal so his AOS pending status may be irrelevant. Can you please explain how ICE came to detain him?

Also, as others stated, he can apply for another visa but whether it would be approved is another matter. On the plus side, while his AOS will be cancelled, his I-130 will continue to be processed so he can apply for a CR-1 visa. However because of his deportation and overstay he will need the waivers I mentioned above. Whether they will be approved depends on a lot of factors but if they are, it will take many months and cost a lot of money.

[bigdog 376]

I would get a immigration attorney, don't know if it will help..

[Pinkrlion 2,724]

I would get a immigration attorney, don't know if it will help..

[Sandra G. 5,057]

Find a GOOD lawyer to file CANCELLATION OF REMOVAL based that his removal would result in exceptional and extremely unusual hardship to you.Usually the Court grants if the grounds of removability is not based on criminal convictions. He has a relief available and filed with USCIS (adjustment of status) and that would allow you to remain in the U.S. despite his removability.Your husband has the right to go before an Immigration Judge.The Department of Homeland Security cannot deport him until he is first given a chance to present his case, but he has to ask for that.I suggest you find a good lawyer asap.

Edited December 29, 2012 by sandranj

[Shiobhan 235]

If he committed no crime get an atty . and then he'll see an IJ, try to stop the deportation if you all can.

[AmyWrites 593]

Wait, isn't denial to AOS when the person came on the VWP such that you can't appeal?

[Sandra G. 5,057]

The individual using the VWP waives her/his right to contest removal,but there are several successful cases that the Court of Appeal remanded the case for plenary removal proceedings before an immigration judge.

[Boiler 45,912]

No suggestion that CoR would be viable.

[Hypnos 6,578]

I believe one of the requirements to file for cancellation of removal is that you have to have resided in the US for at least ten years, which the OP's husband has not.