I-212 denied with I-130 pending due to having not yet completed the interview

[bitsofbrandon 1]

Hello,

 

My partner (now husband) was denied entry to the US in December 2022 and had his F-1 visa revoked and faced expedited removal with a 5 year bar. We married in April 2023 in his home country and began working with an attorney on our case. We filed an I-130 in May of 2023 and our attorney advised us that since we only needed an I-212 and not an 601A and that we were proceeding with an immigrant visa we could submit both the I-130 and I-212 at the same time. Our I-212 was filed in October to the field office where my husband was deported.

 

Yesterday we received a denial letter form USCIS stating that they are denying because we have not attended the interview and been found inadmissable. 

 

Quote

You have failed to establish you are an applicant for an immigrant visa with the U.S. Department of State, who has been interviewed by a consulate officer and found inadmissible to the United States under a section of the INA; which requires the Filing of a Form 1-212.

 

 

However USCIS website states the following 

 

Quote

Applicant for immigrant visa who is outside the United States and in need of concurrent waiver filed on Form I-601: You may request both the waiver and consent to reapply for admission to the United States after you have attended your visa interview at a U.S. consulate and after a consular officer has found you inadmissible.  You must file Form I-212 together with Form I-601, Application for Waiver of Grounds of Inadmissibility.

 

We do NOT require a 601 waiver so this does not apply to our case.  It then goes on to say.

 

 

Quote

Applicant for immigrant visa and waiver on Form I-601 not required: USCIS Field Office with jurisdiction over the place where your deportation or removal proceedings were held

  

 

Quote

Applicant for K or V nonimmigrant visa under INA section 101(a)(15)(K) and (V): You may request consent to reapply for admission to the United States after you have attended your visa interview at a U.S. consulate and after a consular officer has found you inadmissible.

 

 

Notably we are not applying for a K or V nonimmigrant visa, we are applying for a CR1. This seems to indicate that those applying for an immigrant visa can submit the I-212 waiver without being rejected at the interview first.

 

How attorney believes this is USCIS error and we should submit an appeal. Has anyone had an I-212 approved in a similar case? Is this possible or is our attorney wrong?

 

 

[Boiler 45,411]

I don't know if you need an I 601, but certainly for an I 212 you do not need a finding, he was deported and given a 5 year bar, that does not need Consulate confirmation.

[Rocio0010 5,579]

It is my understanding that a 212 waiver applies to someone with a visa, which is not applicable in your case because he doesn't have one yet, a he has a five year bar. It seems that your attorney made a mistake by simultaneously applying for a 212 and an I-130. Like I said, I am not very familiar with 212 or 601as, but I do know that in most cases applicants need to attend an interview first, be denied, and then apply for a waiver. It seems that the DHS caught on the fact that he applied for both concurrently and out right denied the I-130 since he hadn't have an interview yet.

 

Regardless, you need to provide more information about his case:

1. Why was the F1 denied?
2. Why was he put under "expedited" removal?
3. What Embassy is he going through?

[Boiler 45,411]

I 601a would not be applicable in this case, if needed it would be a I 601.

 

The I 130 has not been denied.

[Redro 4,611]

@bitsofbrandon did the lawyer look at the documents leading to your partner’s revocation of F1 visa 5 year bar and request the FOIA record of your partner before advising the 601 is not required? 
If this is so, I would follow the advice of the person you paid or have another attorney look over the paperwork to make sure everything is correct. 
 

[bitsofbrandon 1]

2 hours ago, Redro said:

@bitsofbrandon did the lawyer look at the documents leading to your partner’s revocation of F1 visa 5 year bar and request the FOIA record of your partner before advising the 601 is not required? 
If this is so, I would follow the advice of the person you paid or have another attorney look over the paperwork to make sure everything is correct. 
 

@Redro We did not do a FOIA request but the attorney reviewed the packet of information my husband was given during expedited removal. 

3 hours ago, Rocio0010 said:

It is my understanding that a 212 waiver applies to someone with a visa, which is not applicable in your case because he doesn't have one yet, a he has a five year bar. It seems that your attorney made a mistake by simultaneously applying for a 212 and an I-130. Like I said, I am not very familiar with 212 or 601as, but I do know that in most cases applicants need to attend an interview first, be denied, and then apply for a waiver. It seems that the DHS caught on the fact that he applied for both concurrently and out right denied the I-130 since he hadn't have an interview yet.

 

Regardless, you need to provide more information about his case:

1. Why was the F1 denied?
2. Why was he put under "expedited" removal?
3. What Embassy is he going through?

@Rocio0010 He was entering the country through an airport and was stopped for secondary inspection. The officer questioned him about his work history (he had a valid F1 and OPT) and asked leading questions causing my partner to be confused and they got him to admit to unauthorized work, even though as far as we can tell all his work was valid under his OPT. The official reason for removal was 212(a)(7)(A)(i)(D) inadequate documentation. He will be going through AIT in Taipei for the interview. 
 

Also of note he had been in the US over 10 years on his F-1 before this happened and just had his OPT renewed. 

Edited March 4 by bitsofbrandon

[bitsofbrandon 1]

3 hours ago, Boiler said:

I 601a would not be applicable in this case, if needed it would be a I 601.

 

The I 130 has not been denied.

Yes correct. I meant 601 not 601a but I don’t think we need either. I-130 is still pending. 

[Boiler 45,411]

Just now, bitsofbrandon said:

Yes correct. I meant 601 not 601a but I don’t think we need either. I-130 is still pending. 

 

It does not sound like you need a I 601, but I have not seen all the details, your Lawyer has. I certainly would go in fully armed with details of his work history. And an explanation of the confusion.

[Rocio0010 5,579]

3 hours ago, Boiler said:

I 601a would not be applicable in this case, if needed it would be a I 601.

 

The I 130 has not been denied.

True! My bad!

[Family 3,988]

Filing a standalone I-212 should happen AFTER the I-130 is approved and AFTER the IV fee has been paid with copies of the receipts provided at filing .

Without an APPROVED I-130 there is no means for applicant to pursue re admission .

I-212 cannot be conditioned on ‘ IF my I-130 gets approved ‘ 

No matter how strong your case, approval is not guaranteed 
 

Because the denial states a consular interview is required , therefore implying  Visa Refulsal with Inadmissibility charges is also required. it worth researching for the specific section of law for stand alone I-212. 
 

Your time to appeal is limited so get TWO new attorney consultations to review the denial before filing I-290 B appeal

IT may be necessary to refile the I-212 after the I-130 is approved…so you can have current attorney do it for free. …
 

 

 

Read through appeal decisions and try typing a keyword to narrow search 
https://www.uscis.gov/administrative-appeals/aao-decisions/aao-non-precedent-decisions?uri_1=24&m=All&y=All&items_per_page=10&page=2

 

 

 

This I assume is the source you quoted earlier . 
https://www.uscis.gov/forms/all-forms/direct-filing-addresses-for-form-i-212-application-for-permission-to-reapply-for-admission-into-the

 

Edited March 5 by Family

[bitsofbrandon 1]

1 hour ago, Family said:

Filing a standalone I-212 should happen AFTER the I-130 is approved and AFTER the IV fee has been paid with copies of the receipts provided at filing .

Without an APPROVED I-130 there is no means for applicant to pursue re admission .

I-212 cannot be conditioned on ‘ IF my I-130 gets approved ‘ 

 

@Family Nowhere in the filing instructions for the 212 or the regulations does USCIS communicate this. 

 

Thank you for the link though. I found two appeals with similar cases to ours that resulted in the original decisions being overturned and the I-212 application was sent back for adjudication on their merits. 

https://www.uscis.gov/sites/default/files/err/H4 - Application for Reentry after Removal or Aggravated Felony Conviction - 212(a)(9)(A)(iii)%2C 212(a)(9)(B)(v)%2C 212(d)(3)(A)/Decisions_Issued_in_2022/MAY052022_10H4212.pdf

 

The first is our exact case where they do not have a visa pending with DOS. 

 

Quote

On appeal, the Applicant contends that the Director erred in concluding that she is not eligible to file her application since neither the regulations nor the instructions to the Form 1-212 require a finding of inadmissibility by a consular officer prior to filing the Form 1-212. The Applicant asserts that she intends to apply for an immigrant visa before DOS and requests approval of her Form 1-212. The Applicant does not contest inadmissibility; the only issue on appeal is whether an adjudication of this application on its merits is warranted. The Applicant states that she has established by a preponderance of the evidence that she is a prospective immigrant visa applicant and as such she should be granted permission to reapply for admission, and that the application should be adjudicated on its merits.

 

 

This case is also similar, however they do have a visa with DOS just have not attended an interview. 

 

https://www.uscis.gov/sites/default/files/err/H4 - Application for Reentry after Removal or Aggravated Felony Conviction - 212(a)(9)(A)(iii), 212(a)(9)(B)(v), 212(d)(3)(A)/Decisions_Issued_in_2021/MAR012021_01H4212.pdf

 

Quote

The Applicant acknowledges that approval of permission to reapply for admission is discretionary. He asserts, though, that the Director's decision was an abuse of discretion because neither the Act, the regulations, nor the form instructions require an applicant to have completed their visa interview and been found inadmissible before filing their Form 1-212. In support, the Applicant refers to those items to assert that a Form 1-212 may be filed before a consular interview.

 

The Applicant also refers to the Form 1-212 instructions that indicate individuals who are inadmissible under section 212(a)(9)(C) of the Act "may file Form 1-212 if" they are an applicant for an immigrant visa. The Applicant contends that he should be considered an applicant for an immigrant visa because the Act does not define "applicant for an immigrant visa" and DOS routinely refers to individuals who are in the pre-screening process at the National Visa Center, prior to their interviews, as visa applicants. In addition, he asserts that whereas the instructions for the Form 1-601, Application for Waiver of Grounds of Inadmissibility, clearly state that that the visa interview has to have taken place prior to filing a Form 1-601 when the applicant is outside the United States, the Form 1-212 instructions are ambiguous as to whether this is required, and therefore we should presume the difference is intentional and the Form 1-212 is not subject to the same procedural requirements.

 

 

This is exactly what my lawyer said. USCIS does not say anywhere that attending an interview or being denied at the embassy first is required. 

[Family 3,988]

1 hour ago, bitsofbrandon said:

@Family Nowhere in the filing instructions for the 212 or the regulations does USCIS communicate this. 

 

Thank you for the link though. I found two appeals with similar cases to ours that resulted in the original decisions being overturned and the I-212 application was sent back for adjudication on their merits. 

https://www.uscis.gov/sites/default/files/err/H4 - Application for Reentry after Removal or Aggravated Felony Conviction - 212(a)(9)(A)(iii)%2C 212(a)(9)(B)(v)%2C 212(d)(3)(A)/Decisions_Issued_in_2022/MAY052022_10H4212.pdf

 

The first is our exact case where they do not have a visa pending with DOS. 

 

 

 

This case is also similar, however they do have a visa with DOS just have not attended an interview. 

 

https://www.uscis.gov/sites/default/files/err/H4 - Application for Reentry after Removal or Aggravated Felony Conviction - 212(a)(9)(A)(iii), 212(a)(9)(B)(v), 212(d)(3)(A)/Decisions_Issued_in_2021/MAR012021_01H4212.pdf

 

 

 

This is exactly what my lawyer said. USCIS does not say anywhere that attending an interview or being denied at the embassy first is required. 

You did it. The case you found is excellent and clearly points to a win  

‘

 

[bitsofbrandon 1]

46 minutes ago, Family said:

You did it. The case you found is excellent and clearly points to a win  

 

Yes but there are unsuccessful ones too. It seems like USCIS doesn't really know what its policy actually is? It seems it will really bolster our case if we get our I-130 approved before they evaluate any appeal. Which makes me think maybe the best option is to re-file after we get approval.

 

https://www.uscis.gov/sites/default/files/err/H4 - Application for Reentry after Removal or Aggravated Felony Conviction - 212(a)(9)(A)(iii), 212(a)(9)(B)(v), 212(d)(3)(A)/Decisions_Issued_in_2023/JUL192023_01H4212.pdf

 

https://www.uscis.gov/sites/default/files/err/H4 - Application for Reentry after Removal or Aggravated Felony Conviction - 212(a)(9)(A)(iii), 212(a)(9)(B)(v), 212(d)(3)(A)/Decisions_Issued_in_2020/SEP282020_07H4212.pdf