212(a)(7)(A)(i)(I) and CR-1 Visa

[jman8 0]

I'm in the process of filing form I-130 for a CR-1 visa for my Korean wife. It seems pretty straightforward except for a situation that happened in April 2022. The situation was that she attempted to enter the US to conduct some training classes (i.e. work) with her US citizen friend while under the ESTA visa waiver program. Upon arriving in LAX, she was questioned by a border officer and came clean about everything, including having done the same type of work multiple times in the past. Unsurprisingly, she was refused entry and had to return to her country. After the interview with the CBP Officer, she received a form I-831 which states, among other things, the following:

"You are inadmissible to enter the United States pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act as an intending immigrant without an immigrant visa because you have engaged unauthorized employment and seeking to continue such unauthorized employment on this entry. Do you understand?" (Her answer: "Yes")

 

"You will be refused entry under the Visa Waiver Program pursuant to Section 217 of the Immigration and Nationality Act. You are no longer eligible to use or enter the United States under the Visa Waiver Program. You must apply and obtain a U.S. visa with waiver for future entries into the United States. Do you understand?" (Her answer: "Yes")

 

Additionally, her passport received a stamp stating: "Refused in accordance with INA section 217. R27038"

 

QUESTIONS

1) In the form I-130 instructions, under the "Who May Not File Form I-130?" section, it includes a person in the following category:

A spouse, if you married your spouse while he or she was the subject of an exclusion, deportation, removal, or rescission proceeding regarding his or her right to be admitted into or to remain in the United States, or while a decision in any of these proceedings was before any court on judicial review. However, you may be eligible for the bona fide marriage exemption under INA section 245(e)(3).

 

Was my wife's situation considered an exclusion, deportation, removal, or rescission proceeding?

 

2) Form I-130 includes the question, "Was the beneficiary EVER in immigration proceedings?". Should this be answered 'Yes' or 'No'?

 

3) Are there any potential complications stemming from my wife's situation that I should be aware of?

 

 

Thank you in advance for any help or support.

[Boiler 45,488]

You can file for her and she was in proceedings, not as if they are not going to know.

 

The big issue is if the Consulate will hit her with a Misrep charge, and that you will not know until she is interviewed.

[SalishSea 17,828]

37 minutes ago, jman8 said:

I'm in the process of filing form I-130 for a CR-1 visa for my Korean wife. It seems pretty straightforward except for a situation that happened in April 2022. The situation was that she attempted to enter the US to conduct some training classes (i.e. work) with her US citizen friend while under the ESTA visa waiver program. Upon arriving in LAX, she was questioned by a border officer and came clean about everything, including having done the same type of work multiple times in the past. Unsurprisingly, she was refused entry and had to return to her country. After the interview with the CBP Officer, she received a form I-831 which states, among other things, the following:

"You are inadmissible to enter the United States pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act as an intending immigrant without an immigrant visa because you have engaged unauthorized employment and seeking to continue such unauthorized employment on this entry. Do you understand?" (Her answer: "Yes")

 

"You will be refused entry under the Visa Waiver Program pursuant to Section 217 of the Immigration and Nationality Act. You are no longer eligible to use or enter the United States under the Visa Waiver Program. You must apply and obtain a U.S. visa with waiver for future entries into the United States. Do you understand?" (Her answer: "Yes")

 

Additionally, her passport received a stamp stating: "Refused in accordance with INA section 217. R27038"

 

QUESTIONS

1) In the form I-130 instructions, under the "Who May Not File Form I-130?" section, it includes a person in the following category:

A spouse, if you married your spouse while he or she was the subject of an exclusion, deportation, removal, or rescission proceeding regarding his or her right to be admitted into or to remain in the United States, or while a decision in any of these proceedings was before any court on judicial review. However, you may be eligible for the bona fide marriage exemption under INA section 245(e)(3).

 

Was my wife's situation considered an exclusion, deportation, removal, or rescission proceeding?

 

2) Form I-130 includes the question, "Was the beneficiary EVER in immigration proceedings?". Should this be answered 'Yes' or 'No'?

 

3) Are there any potential complications stemming from my wife's situation that I should be aware of?

 

 

Thank you in advance for any help or support.

She will likely need a waiver for misrepresentation.  The consular officer will make this call.  
 

You may be better off with a lawyer to help prepare that, and it will add a year or two to the process.

[Crazy Cat 41,845]

49 minutes ago, jman8 said:

3) Are there any potential complications stemming from my wife's situation that I should be aware of?

 As noted above by others, she faces the real possibility of being inadmissible due to either expedited removal and/or misrepresentation.  You won't know until her interview.  That is about 18-24 months away.   I'd consult an attorney.  Good luck.

Edited May 8, 2023 by Crazy Cat

[p222333 0]

can you tell us what happen with your case?

 

[jman8 0]

1 hour ago, p222333 said:

can you tell us what happen with your case?

 

I spoke to 2 lawyers and neither of them thought a waiver would be required, however, it wasn’t something that could be ruled out. I ended up filing the I-130 with one of the lawyers in early August and now we’re waiting. Luckily, I received a transfer offer from my job to relocate to Singapore and now I’m living here with my wife while we wait out the slow U.S. visa process.