USA immigrant visa approved last week, but beneficiary has 2 years left on a 5 year ban

[bladerunnerblues 0]

I have scoured internet trying to find information about my particular case to no avail. My wife from Thailand is now a naturalized citizen of the USA and this website was very helpful with every aspect of the process – from her tourist visa to her naturalization. I filed every paper myself without any assistance from attorneys.

 

Now we’re working on my wife’s daughter’s immigrant visa. She is a 27 year old unmarried woman – my wife’s only child, whose birth father is deceased. The daughter was issued a 10 year tourist visa in 2012 and would visit regularly, staying many months at a time but never exceeding the 6 month limit. In October of 2016 we applied for the daughter’s immigrant visa. A year later in October of 2017 the daughter was stopped at Los Angeles International Airport and her phone was confiscated. She sat in a waiting room as a DHS agent who spoke Thai checked all her text messages and social media posts. Eventually they found evidence that was working at a restaurant when in the USA.

 

They sent her back to Thailand that very evening and she received a 5 year ban – “Pursuant to section 235(b)(1) of the Immigration and Nationality Act (Act),( 8 U.S.C. 1225(b)(1)) the Department of Homeland Security has determined you are inadmissible to the United States  under section 212(a), (7)(A)(i)(I) of the Act, as amended, and therefore subject to removal, in that: You are not a citizen or national of the United States. You are an alien who, at the time of your application to the Los Angeles International Airport on October 23, 2017, you were not in possession of a valid, unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act, as amended, to wit: You presented a valid passport and a facially valid nonimmigrant visa in order to be admitted to the United States, but you admitted in a sworn statement before an officer of this Service that you were employed without authorization on your last trip.”

 

Last week – October of 2020 - we received a letter in the mail from the DHS stating that her immigrant visa had been approved.

 

My question is this: What does this mean and what do I do now? Her ban doesn’t expire for another 2 years.  Does the fact that the DHS or NVC approved her immigrant VISA mean that the ban has been overridden? Do I need to submit an i-601 or other kind of waiver? Do I need an attorney?

 

I have no idea what to do next. Any advice would be most appreciated. Thanks to all in advance. I can upload files if needed or provide more info.

Edited October 21, 2020 by bladerunnerblues
clarity

[Just Paul 4,595]

She would need to wait until after the ban is over to have the VISA issued.  The USCIS can approve the I-130 and the NVC can send the petition to the consulate but the VISA is issued by the consulate and they should see the ban is in place.   DHS / USCIS does not issue visas, they only approve petitions.

Edited October 21, 2020 by Paul & Mary

[SusieQQQ 11,587]

You said her visa was approved - do you mean the petition was approved? There could still be some years to go before a visa is available to her. The category, F1 for unmarried son/daughter of USC is only current to Sept 2014 - you said your wife filed in Oct 2016, so she probably has another couple of years to go anyway before a visa is available. But yes, her ban period will need to be over before she can be granted a visa.

[aaron2020 11,651]

Hi,

 

DHS has not approved an immigrant visa for your stepdaughter.  USCIS approved the I-130 that was submitted in October 2016.  A big difference from having an approved immigration visa.  

You need to look at the monthly Visa Bulletin.   Your stepdaughter's case is in the F1 visa category.  The current Priority Date for the F1 category in the October 2020 VB is September 15, 2014.  Your stepdaughter will likely be eligible to apply for an immigration visa in about 12-18 months with the NVC.  In about two years from now, she will likely have her immigrant visa interview at the US Embassy in Bangkok.  By then, her ban will be over and it will be a nonissue for the US Embassy to issue her a visa.  

 

Edited October 21, 2020 by aaron2020

[bladerunnerblues 0]

Yes - I meant to write that her i-130 petition was approved.

 

In that letter it states "You should allow a minimum of 45 days for the US Department of State processing before contacting the NVC. If you have not received any correspondence from NVC within 45 days, you may contact the NVC at http:://nvc.state.go/inquiry."

 

I thought that meant something else was going to happen within 45 days. So based on comments,  even though the i-130 was approved, it's not going to be sent to the consulate for another 2 years?

 

I can upload docs with the personal info blurred out if that would help clarify anything. Thanks to all that posted comments already - you guys are fast!

Edited October 21, 2020 by bladerunnerblues

[aaron2020 11,651]

10 minutes ago, bladerunnerblues said:

Yes - I meant to write that her i-130 petition was approved.

 

In that letter it states "You should allow a minimum of 45 days for the US Department of State processing before contacting the NVC. If you have not received any correspondence from NVC within 45 days, you may contact the NVC at http:://nvc.state.go/inquiry."

 

I thought that meant something else was going to happen within 45 days. So based on comments,  even though the i-130 was approved, it's not going to be sent to the consulate for another 2 years?

 

I can upload docs with the personal info blurred out if that would help clarify anything. Thanks to all that posted comments already - you guys are fast!

In about 12-18 months, the NVC will contact the petitioner to pay fees.  Once the fees are paid, your stepdaughter apply for an immigrant visa.  Once the NVC has all the necessary paperwork, then her case is sent to the US Embassy in Bangkok.  Based on movement in the VB, it's a guess that she will be eligible for an immigration visa in about 2 years.  

No need to upload the docs.  We're familiar with the process and know that you got a letter from USCIS informing you that the I-130 was approved and forwarded to the NVC. 

Review the Guides on VJ to familiarize yourself with the immigration process.  

Edited October 21, 2020 by aaron2020

[Just Paul 4,595]

10 minutes ago, bladerunnerblues said:

even though the i-130 was approved, it's not going to be sent to the consulate for another 2 years?

There is no visa number available at this time.  You can refer to the Department of State's Visa Bulletin. Even if it was current,  visas are not being issued for adult children at this time.

 

Wait until the category is current and the ban should be over.

[bladerunnerblues 0]

Thanks again. I guess the 45 days thing in the i-130 approval letter really threw me off. So in reality, I can expect nothing to happen in the next 45 days. I had heard that no visas were being issued in many categories due to Covid or the current administration or whatever, but that "45 days" part of the letter made me think that something was going to happen soon.

Edited October 21, 2020 by bladerunnerblues

[SusieQQQ 11,587]

21 minutes ago, bladerunnerblues said:

Thanks again. I guess the 45 days thing in the i-130 approval letter really threw me off. So in reality, I can expect nothing to happen in the next 45 days. I had heard that no visas were being issued in many categories due to Covid or the current administration or whatever, but that "45 days" part of the letter made me think that something was going to happen soon.

There is a decent description of the process once it gets to NVC here https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/step-2-begin-nvc-processing.html

but basically - nothing of substance will happen soon. Her priority date needs to be current for a visa to be available and she won’t be scheduled an interview before that. Roughly a year ahead of that they will contact you to submit forms, pay fees etc. 

 

Her visa category like most other family ones are indeed currently banned due to presidential proclamation; the ban is currently due to expire end December. It presumably will be of no relevance by the time a visa is available for your stepdaughter. 

[SteveInBostonI130 3,483]

14 hours ago, bladerunnerblues said:

Thanks again. I guess the 45 days thing in the i-130 approval letter really threw me off. So in reality, I can expect nothing to happen in the next 45 days. I had heard that no visas were being issued in many categories due to Covid or the current administration or whatever, but that "45 days" part of the letter made me think that something was going to happen soon.

There are 3 things going on right now with your situation:

 

1) The presidential proclamation that suspends F category visas until the end of the year.   This DOES NOT impact to your case, unless this proclamation is extended to 3 years or more.

 

2) The 5 year bar on entry to the US.  This DOES impact your case.  Your stepdaughter cannot travel to the US until Oct 2022, at the earliest.

 

3) The F1 category of your stepdaughter.  This DOES impact your case.   Per the yearly limits of visas that this category is subject to, only applications with a PD of Sep 15, 2014 or earlier are allowed to process and obtain a visa (if the presidential proclamation in 1, above, is not in effect).  https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html

 

Due to items 2) and 3), your stepdaughter will not be able to apply for a visa until after Oct 2022.  The letter you got from USCIS is just a standard letter they send to everyone who's I-130 gets approved.  The NVC now has "control" and will inform the applicant when their family based visa category is current and he/she can apply for the visa.  She should get the notice in late 2022.

 

EDIT:  Please note, that for Item 3, your stepdaughter has to remain unmarried.  If she marries, then her category changes to F3, which will take roughly about 6 years longer to obtain.

Edited October 21, 2020 by SteveInBostonI130
Additional info

[igoyougoduke 1,675]

14 hours ago, bladerunnerblues said:

Thanks again. I guess the 45 days thing in the i-130 approval letter really threw me off. So in reality, I can expect nothing to happen in the next 45 days. I had heard that no visas were being issued in many categories due to Covid or the current administration or whatever, but that "45 days" part of the letter made me think that something was going to happen soon.

there is nothin that will happen for another 1- 2 years. In order for her to be granted an immigrant visa at a consulate in Thailand her priority date ( aka the filing date on I-130 receipt )  must be current. 

 

Plus the 5 year ban means all you can do is WAIT 

[bladerunnerblues 0]

Again, thanks to all who replied for the great information!