I-212 denied

[sneyek 1]

I have a situation and I need some help. I want to say that vj has been really helpful and I appreciate that. I hope someone will help me with this. Here is my story. My wife was denied entry to the US at the airport and was removed from the country. She had a tourist visa at that time. Right after that we got married and filed i-130 in march 2020. then we realized she will need i-212 to re enter the country. so we filed i-212 in june  2020. Our i-130 is still at Uscis in Texas. We just received denial notice of i-212. The reason for denial is : "A review of USCIS and U.S. Department of States records show that you don't have a pending visa petition." "You don't qualify for an approval of an I-485 adjustment of status, because you do not have an available visa or petition. Therefore, USCIS denies your form I-212". Correct me if I'm wrong, but it seems to me that we filed i-212 too early? Does USCIS consider pending i-130 as a petition? if so, there is an error on their side. They are giving us option to appeal to AAO or submit a motion to reopen or reconsider. I would like to hear from people what our options are. Should I submit a motion to reconsider and explain that we are still waiting on our i-130 to be approved. I have 33 days to respond, otherwise case will be closed. We have waited over 4 months to hear back and we were given denial. I don't want to submit new I-212 .

[milimelo 4,481]

You have to be told at the immigrant visa interview to file I-212 before you can do it. You jumped the gun. 

[sneyek 1]

11 hours ago, milimelo said:

You have to be told at the immigrant visa interview to file I-212 before you can do it. You jumped the gun. 

I was told on this forum that you can send form I-212 before you go to interview. Although I may have sent it too early. Can it be postponed until visa becomes available? this petition costs nearly $1000. I do not want waste this money.... anybody???

[carmel34 3,633]

14 hours ago, sneyek said:

Should I submit a motion to reconsider and explain that we are still waiting on our i-130 to be approved. I have 33 days to respond, otherwise case will be closed.

Yes, try that approach and hope that they will hold the I-212 until after the I-130 is approved and visa interview scheduled and done at the embassy/consulate abroad, then if needed, USCIS can send the I-212 application to the appropriate embassy/consulate.  There's certainly no harm in trying.  Best case, they say yes.  Worst case, they say it was your error that you filed it too early and the fee is nonrefundable.  In that case if they ask for a new I-212 at or after the spousal visa interview, you'll file one again with a new fee.  Normally an I-212 is not filed until after the immigrant visa interview (CR-1/IR-1 in your case), and the IO asks for it.  The reason it was denied is that the issue of inadmissability is irrelevant until an alien person is found to be eligible for a visa on all other grounds, first an approved petition (I-130), then at the visa interview if everything else looks good.  Plus, I-212 inadmissability is complicated and in some cases, such as being refused entry with VWP, an I-212 may not even be necessary.  Did you consult with a good immigration attorney on the I-212?  Generally, inadmissability waivers are more successful if you use a good lawyer who has experience with these complicated cases, for best advice and timing.  Good luck!

[sneyek 1]

36 minutes ago, carmel34 said:

Yes, try that approach and hope that they will hold the I-212 until after the I-130 is approved and visa interview scheduled and done at the embassy/consulate abroad, then if needed, USCIS can send the I-212 application to the appropriate embassy/consulate.  There's certainly no harm in trying.  Best case, they say yes.  Worst case, they say it was your error that you filed it too early and the fee is nonrefundable.  In that case if they ask for a new I-212 at or after the spousal visa interview, you'll file one again with a new fee.  Normally an I-212 is not filed until after the immigrant visa interview (CR-1/IR-1 in your case), and the IO asks for it.  The reason it was denied is that the issue of inadmissability is irrelevant until an alien person is found to be eligible for a visa on all other grounds, first an approved petition (I-130), then at the visa interview if everything else looks good.  Plus, I-212 inadmissability is complicated and in some cases, such as being refused entry with VWP, an I-212 may not even be necessary.  Did you consult with a good immigration attorney on the I-212?  Generally, inadmissability waivers are more successful if you use a good lawyer who has experience with these complicated cases, for best advice and timing.  Good luck!

thank you. What you just said makes sense. I shouldn't have sent it this early and ,as you just said, may not even be necessary to send it at all. I will send a motion to reconsider and explain them my situation. Hopefully they say yes and hold this application until it is needed.