K-1 and 212 CTR (no waiver needed) confusion

[karlmalowned 3]

Hello everyone,

 

I have been trying to find answers similar to my case below, but the more policy that I read the more confused I become. I am hoping that someone is able to guide me down the right path.

 

Background:

My girlfriend was subject to expedited removal last year, with the following:

212(a)(7)(A)(i)(I) - intending immigrant not in possession of immigration visa. She had a tourist visa, they suspected immigration intent. No overstay occurred.

212(a)(9)(A)(i)(I) - because she was subject to expedited removal.

 

Our I-129F was just approved last week. I know that consent to reapply is needed in order to eventually obtain a K-1 visa. However, even though the K-1 is a "nonimmigrant" visa, I see a bunch of special provisions for it to be treated as an immigrant visa. Since that's the case, she does not need to overcome the inadmissibility if 212(a)(7)(A)(i)(I). Assuming that a later inadmissibility is not found, she would just need to obtain consent to reapply.. correct?

 

According to the USCIS Policy Manual (Part 9A Chapter 2): https://www.uscis.gov/policy-manual/volume-9-part-a-chapter-2 

"C. Consent to Reapply

Permission to reapply for admission into the United States after deportation or removal, also known as “consent to reapply,” is not a waiver. ^[3] Consent to reapply is a distinct remedy that permits a foreign national to seek admission. If the statute specifies that the foreign national must obtain consent to reapply to overcome the inadmissibility, a waiver of inadmissibility is not a substitute for consent to reapply. ^[4] "

 

If so, will her visa be denied with "no waiver eligible", or will the consular officer accept the 212 form for CTR after her visa interview?

 -- if the consular officer does, will this be adjudicated at Nebraska or the field office that has jurisdiction over her removal proceedings?

 

Should she apply for CTR with the USCIS field office now even though she is a K immigrant visa applicant?

 -- or alternately, should it be filed now at the Phoenix lockbox?

 

I'm really confused on how exactly the form is adjudicated, and how CTR is processed if no waiver of an inadmissibility is required. I appreciate the time anyone spends looking at this.

[Crazy Cat 41,985]

Does an expedited removal automatically incur a 5 year ban?

@geowrian  @Boiler

Edited May 22, 2019 by missileman

[karlmalowned 3]

1 minute ago, missileman said:

Does an expedited removal automatically incur a 5 year ban?

Yes it does, and 212(a)(9)(A)(i)(I) is the section of the INA that is associated with expedited removal, the 5 year ban, and consent to reapply (at least if I understand it correctly).

[geowrian 22,337]

8 minutes ago, missileman said:

Does an expedited removal automatically incur a 5 year ban?

@geowrian  @Boiler

Yup

Edit: A standalone I-212 can be filed now, though. No need for waiting until after the interview.

Edited May 22, 2019 by geowrian

[Ben&Zian 4,398]

So... you applied for a fiance visa? you said your girlfriend... this has no matter in sense with her overstay/removal... 

[Crazy Cat 41,985]

3 minutes ago, geowrian said:

Edit: A standalone I-212 can be filed now, though. No need for waiting until after the interview.

OK.  Thanks.....That was where my next question was headed......

[karlmalowned 3]

13 minutes ago, geowrian said:

Yup

Edit: A standalone I-212 can be filed now, though. No need for waiting until after the interview.

Okay, so should the "standalone" be filed with the USCIS office that has adjudication? Or should this be filed at the Lockbox since she is technically a K visa applicant (or will be shortly)?

[karlmalowned 3]

Wow I'm an idiot.. there was a thread on this a few weeks ago. I should check on here more often:

 

missileman and geowrian , you are both doings God's work based on responses I have seen. Thank you. And apologies for not seeing this before I posted the question.

Edited May 22, 2019 by karlmalowned

[Crazy Cat 41,985]

10 minutes ago, karlmalowned said:

Wow I'm an idiot.. there was a thread on this a few weeks ago. I should check on here more often:

 

missileman and geowrian , you are both doings God's work based on responses I have seen. Thank you. And apologies for not seeing this before I posted the question.

Thank you for pointing out that thread.  I had not seen it earlier....and I learned some things from reading it......Best of luck on your journey.

[Leeahh 10]

16 hours ago, karlmalowned said:

Hello everyone,

 

I have been trying to find answers similar to my case below, but the more policy that I read the more confused I become. I am hoping that someone is able to guide me down the right path.

 

Background:

My girlfriend was subject to expedited removal last year, with the following:

212(a)(7)(A)(i)(I) - intending immigrant not in possession of immigration visa. She had a tourist visa, they suspected immigration intent. No overstay occurred.

212(a)(9)(A)(i)(I) - because she was subject to expedited removal.

 

Our I-129F was just approved last week. I know that consent to reapply is needed in order to eventually obtain a K-1 visa. However, even though the K-1 is a "nonimmigrant" visa, I see a bunch of special provisions for it to be treated as an immigrant visa. Since that's the case, she does not need to overcome the inadmissibility if 212(a)(7)(A)(i)(I). Assuming that a later inadmissibility is not found, she would just need to obtain consent to reapply.. correct?

 

According to the USCIS Policy Manual (Part 9A Chapter 2): https://www.uscis.gov/policy-manual/volume-9-part-a-chapter-2 

"C. Consent to Reapply

Permission to reapply for admission into the United States after deportation or removal, also known as “consent to reapply,” is not a waiver. ^[3] Consent to reapply is a distinct remedy that permits a foreign national to seek admission. If the statute specifies that the foreign national must obtain consent to reapply to overcome the inadmissibility, a waiver of inadmissibility is not a substitute for consent to reapply. ^[4] "

 

If so, will her visa be denied with "no waiver eligible", or will the consular officer accept the 212 form for CTR after her visa interview?

 -- if the consular officer does, will this be adjudicated at Nebraska or the field office that has jurisdiction over her removal proceedings?

 

Should she apply for CTR with the USCIS field office now even though she is a K immigrant visa applicant?

 -- or alternately, should it be filed now at the Phoenix lockbox?

 

I'm really confused on how exactly the form is adjudicated, and how CTR is processed if no waiver of an inadmissibility is required. I appreciate the time anyone spends looking at this.

yes, you will need a waiver.

I just went through this process and I myself was put on expedited removal for the exact same Section and codes in 2017
I went through K1, it was approved then denied at interview this past February, We then filed the I-212 waiver to Phoenix lockbox in the end of Feb, shortly after the interview because I knew I would need the waiver. I prepared it before hand. 

You are seeking entry to renter with a visa, the waiver will allow them to readjust the k-1 that is denied at the interview. - it is considered a immigrant visa and you have a linking I-129f petition. It will be sent to NSC from phoenix and processed there. Then they will forward It to an office with jurisdiction.

 

I was just approved for my waiver last week.. now then k1 visa will be issued, so I am just waiting on the approval letter and documents to send to my embassy.

I have gone through this. but in regards to the Consular, they may ask you for a 601, but I doubt it. 

[karlmalowned 3]

Thank you very much Leeahh.

 

It seems to me that they want you to wait to file the 212 CTR until after the visa interview in case additional problems are found by the consular officer. That way you can submit a 212 and <insert waiver request here> if needed, in which case the adjudication would occur at Nebraska instead of the field office with jurisdiction over the expedited removal (and you don't waste your money). 

 

I think that since she has technically not "applied" electronically for the K-1, and that the I-129F is approved, I can submit the 212 CTR directly to the field office now, while still referencing the approved petition. But I'm a bit worried about doing that (in case someone feels I'm overstepping their authority or something).

 

Anyway, this forum has given me more answers and hope than any lawyer I have talked to. I will be forever grateful to this place.

[Boiler 45,762]

212 is definitely needed, anything else impossible to say.