I-130 petition denial question

[Yodrak 7]

kitkat,

Points of clarification:

- The petition is a request to be allowed to submit a visa application.

- The USCIS concern is that the benficiary meets the requirements to submit the visa appliction.

Yodrak

..... view the petition as a request to have an interview at the US Consulate in his country. .....

.....USCIS service centers are concerned that the petitioner meets the requirements of the petition. .....

[pushbrk 13,104]

No. USCIS service centers are concerned that the petitioner meets the requirements of the petition. They will process and approve the petition even when the petition clearly states that the beneficiary was illegally present.

Also, the petitioner is required to provide 100% truth on the petition - tell her that there is no reason to lie and lying on the paperwork will result in much more serious problems down the road.

Thank you kitkat 1, that is what I thought but wanted to find out from the experts (you guys, of course) first! I'm telling her today to get the process started and just see what happens and hope for the best!

It is not likely at the USCIS stage that a petition will be denied due to a visa overstay. It is very likely that the visa WILL be denied at the consulate and therefore requiring a waiver application.

Thank you also, fwaguy for your response.

And to everyone else, thank you too!

Everyone's help and responses were very helpful! Thanks again!

She really should come here and ask the questions herself. If her husband is in the USA, it would probably be better to adjust his status. Often overstays are forgiven during AOS, even if a waiver must be filed. The advantage is that he stays here with her instead of waiting an indefinite period in his home country. All the facts are needed to make the best recommendation.

To clarify, if he is already here, he doesn't need a "visa".

Edited May 2, 2007 by pushbrk

[kitkat1 5]

kitkat,

Points of clarification:

- The petition is a request to be allowed to submit a visa application.

- The USCIS concern is that the benficiary meets the requirements to submit the visa appliction.

Yodrak

..... view the petition as a request to have an interview at the US Consulate in his country. .....

.....USCIS service centers are concerned that the petitioner meets the requirements of the petition. .....

OK fair enough. A petition is a request to be allowed to submit a visa application. The visa application in this process happens at the US consulate in his country when he has his interview, right?

Isn't it correct to say that USCIS's concern is that the petitioner first meets the requirements i.e. in the case of a I-129F, the petitioner is required to prove that s/he is a USC and therefore allowed to submit the petition in the first place, and then that the couple has met in the previous two years. So at the USCIS level it's not about whether or not the beneficiary meets any requirements - it's about the petitioner, right?

[Yodrak 7]

kitkat,

You are correct, the petitioner needs to demonstrate that they are qualified to submit the petition, as well as demonstrate that the beneficiary is qualified to apply for the visa. It's the visa application, not the petition, that gets the consular interview - the petition may be approved, but if there is no visa application there will be no interview - yes?

You are correct also that it takes two to tango - the beneficiary cannot have a qualifying relationship with a petitioner if the petitioner does not have the same relationship with the benficiary.

My point is that it's the beneficiary of the petition who will be applying for the visa and the immigration benefits, so things might be a little clearer and easier to understand if one presents information from that point of view. The USC petitioner enables that by petitioning the USCIS to declare the beneficiary qualified to apply.

Yodrak

kitkat,

Points of clarification:

- The petition is a request to be allowed to submit a visa application.

- The USCIS concern is that the benficiary meets the requirements to submit the visa appliction.

Yodrak

..... view the petition as a request to have an interview at the US Consulate in his country. .....

.....USCIS service centers are concerned that the petitioner meets the requirements of the petition. .....

OK fair enough. A petition is a request to be allowed to submit a visa application. The visa application in this process happens at the US consulate in his country when he has his interview, right?

Isn't it correct to say that USCIS's concern is that the petitioner first meets the requirements i.e. in the case of a I-129F, the petitioner is required to prove that s/he is a USC and therefore allowed to submit the petition in the first place, and then that the couple has met in the previous two years. So at the USCIS level it's not about whether or not the beneficiary meets any requirements - it's about the petitioner, right?

[moonhunt 1]

There should be different viewpoint from consular officer, who is issuing VISA, and immigration inspecter at POE, who is allowing him/her to U.S.

Illegal overstay will be considered from Consular officer when issuing the VISA, but it may be enforced at POE by immigration inspector/officer.

But if he is married to US Citizen, this banning based on illegal overstay will not applied to him if I understand correctly.

But there may be some trouble from consular officer's interview or POE entry.

So I would recommend her to consult immigration attorney to have either waiver letter from government organization - either from State department consular section or USBCE -, Or he can get clear letter from immigration attorney stating relevant law that because he is spouse of US Citizen, he is not subject to banning based on illegal overstay.

Technically USCIS doesn't have jurisdiction over what consular office or POE is doing.

I'm seeing he still may have trouble with POE when he is getting back to US since those overstay record still in the system.

Edited May 2, 2007 by moonhunt

[kitkat1 5]

There should be different viewpoint from consular officer, who is issuing VISA, and immigration inspecter at POE, who is allowing him/her to U.S.

Illegal overstay will be considered from Consular officer when issuing the VISA, but it may be enforced at POE by immigration inspector/officer.

But if he is married to US Citizen, this banning based on illegal overstay will not applied to him if I understand correctly.

But there may be some trouble from consular officer's interview or POE entry.

So I would recommend her to consult immigration attorney to have either waiver letter from government organization - either from State department consular section or USBCE -, Or he can get clear letter from immigration attorney stating relevant law that because he is spouse of US Citizen, he is not subject to banning based on illegal overstay.

Technically USCIS doesn't have jurisdiction over what consular office or POE is doing.

I'm seeing he still may have trouble with POE when he is getting back to US since those overstay record still in the system.

The only situation where a ban for illegal presence can be overcome when married to a USC is if the person entered on a legal visa, remained in the US and applied to adjust his status. There is no such thing as a waiver letter from a state department or anything of that nature that will clear him upon re-entry - it's the very act of leaving that triggers the ban and the only way to re-enter legally is with an approved visa.

Once he has left the country, (which he would be required to do if he does not qualify for in-country processing), in order to re-enter the country he has to go through consular visa processing, be denied the visa based on overstay, submit a waiver and hardship letter, wait for and receive approval on the waiver, and receive a visa. When he enters at the POE with an approved visa, the overstay is no longer an issue as it would have been dealt with at the consulate.

(Believe me, I know the rules, I'm in the midst of it right now).

[pushbrk 13,104]

There should be different viewpoint from consular officer, who is issuing VISA, and immigration inspecter at POE, who is allowing him/her to U.S.

Illegal overstay will be considered from Consular officer when issuing the VISA, but it may be enforced at POE by immigration inspector/officer.

But if he is married to US Citizen, this banning based on illegal overstay will not applied to him if I understand correctly.

But there may be some trouble from consular officer's interview or POE entry.

So I would recommend her to consult immigration attorney to have either waiver letter from government organization - either from State department consular section or USBCE -, Or he can get clear letter from immigration attorney stating relevant law that because he is spouse of US Citizen, he is not subject to banning based on illegal overstay.

Technically USCIS doesn't have jurisdiction over what consular office or POE is doing.

I'm seeing he still may have trouble with POE when he is getting back to US since those overstay record still in the system.

The only situation where a ban for illegal presence can be overcome when married to a USC is if the person entered on a legal visa, remained in the US and applied to adjust his status. There is no such thing as a waiver letter from a state department or anything of that nature that will clear him upon re-entry - it's the very act of leaving that triggers the ban and the only way to re-enter legally is with an approved visa.

Once he has left the country, (which he would be required to do if he does not qualify for in-country processing), in order to re-enter the country he has to go through consular visa processing, be denied the visa based on overstay, submit a waiver and hardship letter, wait for and receive approval on the waiver, and receive a visa. When he enters at the POE with an approved visa, the overstay is no longer an issue as it would have been dealt with at the consulate.

(Believe me, I know the rules, I'm in the midst of it right now).

Correct, which further emphasises the importance of him staying in the US and adjusting status instead of leaving, if at all possible. Otherwise, you could be looking at YEARS of separation.

[The Way it Is 0]

There should be different viewpoint from consular officer, who is issuing VISA, and immigration inspecter at POE, who is allowing him/her to U.S.

Illegal overstay will be considered from Consular officer when issuing the VISA, but it may be enforced at POE by immigration inspector/officer.

But if he is married to US Citizen, this banning based on illegal overstay will not applied to him if I understand correctly.

But there may be some trouble from consular officer's interview or POE entry.

So I would recommend her to consult immigration attorney to have either waiver letter from government organization - either from State department consular section or USBCE -, Or he can get clear letter from immigration attorney stating relevant law that because he is spouse of US Citizen, he is not subject to banning based on illegal overstay.

Technically USCIS doesn't have jurisdiction over what consular office or POE is doing.

I'm seeing he still may have trouble with POE when he is getting back to US since those overstay record still in the system.

The only situation where a ban for illegal presence can be overcome when married to a USC is if the person entered on a legal visa, remained in the US and applied to adjust his status. There is no such thing as a waiver letter from a state department or anything of that nature that will clear him upon re-entry - it's the very act of leaving that triggers the ban and the only way to re-enter legally is with an approved visa.

Once he has left the country, (which he would be required to do if he does not qualify for in-country processing), in order to re-enter the country he has to go through consular visa processing, be denied the visa based on overstay, submit a waiver and hardship letter, wait for and receive approval on the waiver, and receive a visa. When he enters at the POE with an approved visa, the overstay is no longer an issue as it would have been dealt with at the consulate.

(Believe me, I know the rules, I'm in the midst of it right now).

Correct, which further emphasises the importance of him staying in the US and adjusting status instead of leaving, if at all possible. Otherwise, you could be looking at YEARS of separation.

The original post says that he has already left the US. In such case he will face a ban if he has overstayed for more than 180 days which will require a waiver to overcome. Thats the WAY IT IS.