212(k) waiver for 212(a)(7)(A)(i)(I) 5 year bar

[belinda63 3,041]

Applicant for immigrant visa and waiver on Form I-601 not required

USCIS Field Office with jurisdiction over the place where your deportation or removal proceedings were held If you are inadmissible because you had previously accrued unlawful presence in the aggregate of 1 year or more in the United States, and you departed the United States and entered or attempted to reenter the United States without being admitted (INA section 212(a)(9)(C)(i)(I)), you may not have been in removal proceedings. In this case, you should file the application with the USCIS Field Office having jurisdiction over your intended place of residence in the United States.

8 CFR 212.2(d)

USCIS Field Officewith jurisdiction over the place where the deportation or removal proceedings were held

 

This is copied from the instructions for the I212 waiver. 

She will need to have an approved waiver prior to the embassy issuing her a visa. The embassy cannot issue a visa (which is permission to enter the country) if she is barred from entry. 

[aaron2020 11,651]

You are not searching for understanding.  You come here with a bad understanding of how things work.  We helped correct you.  You insist that we are wrong and what you want is possible.   You keep insisting that the I-212 is NOT a waiver and only a request for consent for admission to the US.  

 

The I-212 would be a waiver for your wife's inadmissibility so she can receive an immigration visa.  Being inadmissible and having a 5 year bar, there is NO WAY that the US Embassy will issue her an immigrant visa.  She needs the waiver first in order to get the visa.  You will not accept this.  You keep insisting that your way is the proper way.   

[Boiler 45,761]

As she does not have an Immigrant Visa and has no way of getting one are you asking about somebody elses case?

[aaron2020 11,651]

Think about this.

 

Why would the US Embassy issue an immigrant visa to your wife to come live in the US when she has been found to be inadmissible to the US and bar for 5 years because of her expedited removal.  Why would they grant her a visa when it's legally impossible for her to use?  

 

You still haven't told us why they think she was immigrating and ended up with an expedited removal.  Was that the original plan, immigrate to the US on a non-immigrant visa?  

 

We don't have a problem, you do.  We are trying to help you.  Your stubbornness and insistent that the I-212 is not a waiver is just incredible.  Google "I-212 waiver" and see what you get.   If it's not a waiver, you will know.

Edited April 19, 2019 by aaron2020

[MarcusZoe 1]

29 minutes ago, aaron2020 said:

Think about this.

 

Why would the US Embassy issue an immigrant visa to your wife to come live in the US when she has been found to be inadmissible to the US and bar for 5 years because of her expedited removal.  Why would they grant her a visa when it's legally impossible for her to use?  

 

You still haven't told us why they think she was immigrating and ended up with an expedited removal.  Was that the original plan, immigrate to the US on a non-immigrant visa?  

She was coming to help her sister, as she was having rare excessive brain pressures causing sever migraines, and needed help with the children at times.  When she attempted to enter, they sent her to the secondary interview, because she has a US citizen child 3yrs old.  In the interview, she admitted to two short overstays(less than 3 months each).

 

They sent her home, basically saying, they thought she was trying to immigrate without the proper immigration papers. which is the section 212(a)(7)(A)(i)(I).  This was early 2018.  We have since been married in Argentina, and have filed I-130 and I-130a last month.

When I went looking to find out which waiver we would need to apply for, I found the information stated above, that for this section, there is no waiver available at the time of visa application.  So, form I 212 is filed independently. (Which, on its own, is not a waiver, as the title of it is.  " I-212 - Application for Permission to Reapply for Admission into the United States After Deportation or Removal".  I'm not arguing that a waiver is needed, only that the only information that I have found for this subsection 212(a)(7)(A)(i)(I),  Section 212(k) applies, and says, the following.

 

 

Quote

 

From Code of Federal Regulations: https://www.govinfo.gov/app/details/CFR-2012-title8-vol1/CFR-2012-title8-vol1-sec212-10

§ 212.10 Section 212(k) waiver. Any applicant for admission who is in possession of an immigrant visa, and who is inadmissible under section 212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver under section 212(k) of the Act. If the application for waiver is denied, the application may be renewed in removal proceedings before an immigration judge as provided in 8 CFR part 1240. [76 FR 53787, Aug. 29, 2011]

 

From DOS FAM:

https://fam.state.gov/FAM/09FAM/09FAM030502.html

9 FAM 305.2-1(B)  Documentation Requirements for Immigrants - INA 212(a)(7)(A)

(CT:VISA-704;   10-29-2018)

a. No Waiver Available:  No waiver is available at the time of visa application.  However, under INA 212(k), the Department of Homeland Security may waive this inadmissibility for an immigrant visa holder at the port of entry.

 

 

I don't particularly like the idea, that after going through all of the above steps, only for it to be up to the guy standing at the immigration desk, and wanted to know if there was more to it.

 

Edited April 19, 2019 by MarcusZoe

[aaron2020 11,651]

Did she give birth in the US?  Did she pay the hospital bills?

 

How long were her overstays?

 

What did she do at the POE that made them think she was illegally immigrating?  Was she trying to immigrate?  I've mentioned this and you haven't respond to it.

 

If you had been upfront about this, it would have been much easier to guide you.   This is your first post about why she was deported.  

 

Why she was not admitted and why she was not allowed to withdraw her admission and instead got put into expedited deportation matters.

Tell us everything if you help.  You have left out lots of information.  

 

The harder it is to get information out of you, the less likely we are to stick around to help you.

Edited April 19, 2019 by aaron2020

[Boiler 45,761]

Wonder how she was bale to get a visa with the prior overstays.

[belinda63 3,041]

When they deny her visa due to her being inadmissible then maybe you will believe us.

[MarcusZoe 1]

7 minutes ago, aaron2020 said:

Did she give birth in the US?  Did she pay the hospital bills?

Yes and yes

7 minutes ago, aaron2020 said:

How long were her overstays?

2 at Less than 3 months each.

8 minutes ago, aaron2020 said:

What did she do at the POE that made them think she was illegally immigrating?  Was she trying to immigrate?  I've mentioned this and you haven't respond to it.

It was their discretion, and did not give any other reason.  No she was just coming to visit.

10 minutes ago, aaron2020 said:

Why she was not admitted and why she was not allowed to withdraw her admission and instead got put into expedited deportation matters.

They did not give her the option of withdrawing her request, and she did not know at the time, that it was an option.

10 minutes ago, Boiler said:

Wonder how she was bale to get a visa with the prior overstays

She was visiting on a visitors visa, that she has had for many years, and has been to the US numerous times.

 

I don't mind answering, but I guess, I'm not sure how it relates to the question, and process.

[Boiler 45,761]

Once you overstay  then the Visa is void, wonder if there will be a Misrep charge as well?

Edited April 19, 2019 by Boiler

[MarcusZoe 1]

2 minutes ago, belinda63 said:

When they deny her visa due to her being inadmissible then maybe you will believe us.

Really? What have I said that makes you think I don't believe you?  If you read everything I have written, nowhere do "I" say she doesn't need a waiver.  Only, that from the research I have done, the waiver is done at the port of entry.  If you know it is otherwise, please point me to the information.

[MarcusZoe 1]

1 minute ago, Boiler said:

Once you overstay  the the Visa is void, wonder if there will be a Misrep charge as well?

As it was less than a combined total of less than 180 days, then no, and is only an administrative issue.

[geowrian 22,337]

She must file an I-212. This waives her inadmissibility, allowing her to obtain the visa if she is eligible for it.

Once she obtains the immigrant visa, she can just use that like anybody else at POE applying for admission to the US. Nothing else is needed at POE as it relates to the 5 year bar.

 

29 minutes ago, MarcusZoe said:

When she attempted to enter, they sent her to the secondary interview, because she has a US citizen child 3yrs old.  In the interview, she admitted to two short overstays(less than 3 months each).

Ah, that makes sense. Her visa was already invalid - any overstay at all automatically revokes the visa. I'm surprised she was admitted the 2nd time as the visa was already invalid...highly unusual...

 

Quote

I don't particularly like the idea, that after going through all of the above steps, only for it to be up to the guy standing at the immigration desk, and wanted to know if there was more to it.

Every admission of a non-US citizen is at the discretion of CBP. But having a fresh immigrant visa isn't likely to raise any concerns.

1 minute ago, MarcusZoe said:

As it was less than a combined total of less than 180 days, then no, and is only an administrative issue.

Incorrect. The visa is voided on day 1 of any overstay.

At 180 days of overstay, a 3 year bar kicks in. At 1 year, a 10 year bar kicks in. But that's separate from the visa being revoked automatically.

Edited April 19, 2019 by geowrian

[Boiler 45,761]

Not for the overstay, but seeking to enter with a voided visa, seems they did not pick it up the first time?

[MarcusZoe 1]

3 minutes ago, geowrian said:

She must file an I-212. This waives her inadmissibility, allowing her to obtain the visa if she is eligible for it.

Once she obtains the immigrant visa, she can just use that like anybody else at POE applying for admission to the US. Nothing else is needed at POE as it relates to the 5 year bar.

 

Ah, that makes sense. Her visa was already invalid - any overstay at all automatically revokes the visa. I'm surprised she was admitted the 2nd time as the visa was already invalid...highly unusual...

 

Every admission of a non-US citizen is at the discretion of CBP. But having a fresh immigrant visa isn't likely to raise any concerns.

This is my thought as well, and I would like to go with that, except that the 212(k) says the INV "may apply at the port of entry for a waiver under section 212(k) of the Act"