221 (g) white slip after CR-1 interview

[SusieQQQ 11,587]

8 minutes ago, powerpuff said:

~~ Topic moved from CR1/IR1 Process to Progress Reports ~~
 

Here’s someone who had a CR1 interview, were told they are “approved” but they have received a 221g letter afterwards stating that they need a waiver:

 

So it happens that they say everything looks good but after checking (administrative processing), it appears it isn’t. 

This is why the official Dept of State pages on immigrant visas say 

Do not sell your house, car or property, resign from your job, or make non-refundable flight or other travel arrangements, until you have received your immigrant visa.

[Trkmc85 14]

30 minutes ago, powerpuff said:

~~ Topic moved from CR1/IR1 Process to Progress Reports ~~
 

Here’s someone who had a CR1 interview, were told they are “approved” but they have received a 221g letter afterwards stating that they need a waiver:

 

So it happens that they say everything looks good but after checking (administrative processing), it appears it isn’t. 

In his case he was removed. After a removal process the bar is inevitable. In my case it’s different though. I was on an F1 visa with D/S. Never had any problems with ICE, no removal, nothing. I left willingly without any immigration involvement. Visa officer did not approved my visa but kept my passport and gave my 221(g) stating Administrative Processing. 

[powerpuff 6,744]

Just now, kmlcbi61 said:

In his case he was removed. After a removal process the bar is inevitable. In my case it’s different though. I was on an F1 visa with D/S. Never had any problems with ICE, no removal, nothing. I left willingly without any immigration involvement. Visa officer did not approved my visa but kept my passport and gave my 221(g) stating Administrative Processing. 

You question previously was along the lines of  “how could they say that everything looks good but put me in AP? / Can they still find that I need a waiver even after they kept my passport/said everything looks good”. I’m addressing that part, that even if they say “everything is good” they might later say you need a waiver.

 

I have never commented on what is the likelihood of you receiving a ban and needing a waiver. I don’t think anyone here can make that prediction; CO is the one who will make that determination.

[Trkmc85 14]

1 minute ago, powerpuff said:

You question previously was along the lines of  “how could they say that everything looks good but put me in AP? / Can they still find that I need a waiver even after they kept my passport/said everything looks good”. I’m addressing that part, that even if they say “everything is good” they might later say you need a waiver.

 

I have never commented on what is the likelihood of you receiving a ban and needing a waiver. I don’t think anyone here can make that prediction; CO is the one who will make that determination.

I see. Thank you, and sorry for the misunderstanding.

[powerpuff 6,744]

Just now, kmlcbi61 said:

I see. Thank you, and sorry for the misunderstanding.

No worries. I hope it goes well, please keep us updated.

[Trkmc85 14]

Just now, powerpuff said:

No worries. I hope it goes well, please keep us updated.

Will do. Thanks. 

[TBoneTX 45,663]

A hijack post has been removed.

[yanliu85228 12]

1 hour ago, SusieQQQ said:

Not entirely sure how the D/S thing works or what was the then-law at the time OP left - presumably this is what the CO is investigating too. If there is a finding of unlawful presence greater than one year, then there is a ten year ban triggered on departure, so if that applies to OP there would still be a couple of years to work out or a waiver needed.

 

Waiver is generally applied for after the CO refuses you and tells you if it is an option.

How is about if you know from the beginning that waiver is an option, but still one should wait until the visa is denied at the interview then apply with USCIS?

[SusieQQQ 11,587]

1 hour ago, kmlcbi61 said:

I see. Thank you, and sorry for the misunderstanding.

Do you know what the rules governing D/S at the time were? I know at one stage a lot of people were “gaming the system” and managed to overstay without incurring unlawful presence because of D/S (and USCIS has more recently tried to address this). Whether or not you incurred more than a year of unlawful presence is the key to whether you incurred a ban or not, regardless of not being deported etc. 

[Trkmc85 14]

5 minutes ago, SusieQQQ said:

Do you know what the rules governing D/S at the time were? I know at one stage a lot of people were “gaming the system” and managed to overstay without incurring unlawful presence because of D/S (and USCIS has more recently tried to address this). Whether or not you incurred more than a year of unlawful presence is the key to whether you incurred a ban or not, regardless of not being deported etc. 

As you said USCIS tried to address this recently, during Trump administration, but it as far as I remember it was overruled and the law stayed the same as it was for D/S. Here is what I found online. 
 

“On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunctionblocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The court's order states:

"The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications."

On July 31, 2020 DHS filed a motion to dismissits own appeal of the lower court's decision. The appeals court granted that motion and dismissed the appeal on August 3, 2020.

USCIS has returned to applying prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.”

[Crazy Cat 41,985]

2 minutes ago, kmlcbi61 said:

USCIS has returned to applying prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.”

 

[Trkmc85 14]

12 minutes ago, Crazy Cat said:

 

This is from the USCIS memorandum. 
 

“Example 3: An alien is admitted for "duration of status" as an F-1 nonimmigrant student. One year later, the alien drops out of school, and remains in the United States for one year after dropping out. The alien's status became unlawful when she dropped out of school. Neither USCIS nor an IJ ever makes a finding that the alien was out of status; therefore, she never accrues any unlawful presence for purposes of section 212(a)(9)(B) of the Act. Chapter 40.9.2(b)(1 )(E)(ii). The alien eventually leaves the United States and returns lawfully as a nonimmigrant. While in nonimmigrant status, a Form 1-140 is approved and the alien applies for adjustment of status. Because the alien failed to maintain a lawful status for more than 180 days during her prior sojourn, she is ineligible for adjustment
under section 245(c)(2) of the Act, and section 245(k) of the Act does not relieve her of this ineligibility. Under section 245(k) of the Act, the alien is still eligible for adjustment, since the prior failure to maintain status does not apply to make the alien ineligible under section 245(c) of the Act. Also, the alien did not accrue unlawful presence despite the prior unlawful status, and so the alien is not inadmissible under section 212(a)(9)(8) of the Act.“

[SusieQQQ 11,587]

Amazed that they find it so hard to change it when it’s been so obviously abused for so long.

 

Anyway you didn’t directly answer me but you certainly seem to imply you don’t think you accrued any unlawful presence.  At least not through overstay. Were you working illegally at all during that time? Did the CO ask about work?

Edited June 2, 2022 by SusieQQQ

[Trkmc85 14]

18 minutes ago, Crazy Cat said:

 

Forgive me if I sound dumb, I’m just trying to understand correctly here. I’m going through consular processing, so I’m not present in the US. If the unlawful presence “begins” when an immigration officer finds a violation of status in the course of an application for immigration benefit, doesn’t it mean it would not apply to me since I’m already out of the US for years? I hope it makes sense 😕

[Trkmc85 14]

14 minutes ago, SusieQQQ said:

Amazed that they find it so hard to change it when it’s been so obviously abused for so long.

 

Anyway you didn’t directly answer me but you certainly seem to imply you don’t think you accrued any unlawful presence.  At least not through overstay. Were you working illegally at all during that time? Did the CO ask about work?

I was out of status for over 3 years, I know I overstayed my welcome. But it’s not about whether I think I accrued an unlawful presence or not. I’m just trying to understand if the USCIS considers my overstay as an unlawful presence if there was no formal finding by an immigration judge. I never applied for any other immigration benefits while I was in the US. CO did not mention anything about work.

Edited June 2, 2022 by kmlcbi61