help 10 year bar!!!

[DeannaA 0]

Hi this is my first time posting to this site. I have viewed it many time and followed along so I hope I do this right.

Can someone please help me??? My husband and I have been married for almost 5 years and we have a beautiful little girl together. We recently had his visa appt in Juarez and we were denied his visa (we expected this since he was here illegally since 1989 off and on) but we weren't given a chance to sumit a waiver. The officer told him he wasn't eligible. He has no criminal record other than EWI three times since 1989. We were told that his first EWI would not count since he was a minor. The reason why he left the US was because his father was sick and the second time was when his brother was killed otherwise he would've never left.

Does anyone know if we can appeal this decision and how to go about doing this? When we were there at Juarez there were other people that had EWI more times than he had and were given the opportunity to submit a I601 but he wasn't...help!

This whole situation has been very hard...my little one cries everyday for him and we surely weren't expecting a 10 year bar. I even had my waiver put together to submit but had to cancel our infopass appt since he wasn't eligible for it...

Any response is appreciated.

[kitkat1 5]

DeannaA, assuming his second entry was for more than one year and both the second and third entries were after 1997, he has a lifetime ban and is not eligible to submit a waiver for ten years. That's because the law says:

Aliens Unlawfully Present After Previous Immigration Violations

INA §212(a)(9)© provides that aliens who were unlawfully present in the United States for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted, are excludable. A waiver is permitted if the alien is seeking admission more than 10 years after the alien's departure from the United States and if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplying for admission.

It's not the number of illegal entries -- it's the amount of aggregated illegal presence. That's why other people who had more than one illegal entry but did not accumulate more than 365 days of illegal presence were eligible to file waivers -- they were not impacted by 212a9c.

I'm sorry to say there is no reason or point to an appeal since the law is clear. It would make more sense to consider relocating to Juarez (so you could work in the US) or another border city or perhaps another country until he is eligible in 2017. You'll also find support on www.immigrate2us.net where there are a few people in the same position - a few of whom have relocated to Mexico to wait out the ban and are doing just fine.

[Lilikoi 0]

I am a little bit confused and think that there is a possibility to come back..But maybe Kitkat is right... My case is... that I had an expedited removal, by re-entering and I came back 2 month later -always with inspection- . ,than I was living for 6 years in the US and deported in Jan. 2007. I am blocked for 5 and 10 years. my lawyer asked for consent to reapply, what can be approved if the purpose of the consent is to allow the family of a US citizen to be reunited. I know that I have to file the 601 .Maybe this is what Kitkat is trying to say,that we dont get the change to file 601.. I dont know. But I would try...

[kitkat1 5]

I am a little bit confused and think that there is a possibility to come back..But maybe Kitkat is right... My case is... that I had an expedited removal, by re-entering and I came back 2 month later -always with inspection- . ,than I was living for 6 years in the US and deported in Jan. 2007. I am blocked for 5 and 10 years. my lawyer asked for consent to reapply, what can be approved if the purpose of the consent is to allow the family of a US citizen to be reunited. I know that I have to file the 601 .Maybe this is what Kitkat is trying to say,that we dont get the change to file 601.. I dont know. But I would try...

Lilikoi, your situation is different becasue you were lawfully admitted.

You were unlawfully present for more than one year therefore you have a 10 year ban. (There is no 5 year + 10 year - the law is clear regarding unlawful presence of more than 365 days = 10 year ban).

Consent to reapply on the basis of family reunification is extremely unlikely to be of any help to you as there are thousands and thousands and thousands of people separated from their US Citizen families due to this law (and due to their spouses illegal actions). But based on what you have posted, you are eligible for a 601 waiver (they would have explained this to you at the interview) and your husband should be working on it and ready to submit it ASAP. Has your lawyer not explained to you that a 601 waiver is your BEST chance?

aliens who were unlawfully present in the United States for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted, are excludable. A waiver is permitted if the alien is seeking admission more than 10 years after the alien's departure from the United States and if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplying for admission.

[AndEdu 0]

DeannaA, assuming his second entry was for more than one year and both the second and third entries were after 1997, he has a lifetime ban and is not eligible to submit a waiver for ten years. That's because the law says:

Aliens Unlawfully Present After Previous Immigration Violations

INA §212(a)(9)© provides that aliens who were unlawfully present in the United States for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted, are excludable. A waiver is permitted if the alien is seeking admission more than 10 years after the alien's departure from the United States and if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplying for admission.

It's not the number of illegal entries -- it's the amount of aggregated illegal presence. That's why other people who had more than one illegal entry but did not accumulate more than 365 days of illegal presence were eligible to file waivers -- they were not impacted by 212a9c.

I'm sorry to say there is no reason or point to an appeal since the law is clear. It would make more sense to consider relocating to Juarez (so you could work in the US) or another border city or perhaps another country until he is eligible in 2017. You'll also find support on www.immigrate2us.net where there are a few people in the same position - a few of whom have relocated to Mexico to wait out the ban and are doing just fine.

I have a question....DeannaA's husband was denied a I601 waiver due to 2 EWI and a over stay in US of over 365 days. How does INS determin the number of days accumulated in the US. I ask because I have applied for a K-1 I129F and currently my man is in Mexico (voluntary departure) for the 2nd time possibly a third but he can not remember if it was when he was a minor. Any way.....we have a child together and I have traveled to Mexico a few time to see him and visit the fam. DeannaA mentioned that other people were EWI more than 2-3 times and were still allowed to apply for a waiver. I know when we recive the apt for Juarez Mexico he will be denied the visa but is there a chance he will be offered the option for the waiver? What if the total time here in the state was less that 365 days how does he prove that? Or should I say....Who determins how that is calculated????? Do they rely on his word alone????? Should I prepare a waiver just in case....I have done sooo much research that I feel good about doing my own waiver. We talk just about ever night and are really counting on a waiver being offered. I want him to be prepared for the interview. I don't want him to slip up and say anything that would hurt his chances when asked about his illegal prencens in the US. Any tips...or are we counting on something that is a lost cause???

[kitkat1 5]

DeannaA's husband wasn't denied due to 2 EWIs. He was denied because he re-entered the US without inspection after he had previously been unlawfully present for more then 365 total days.

A person can illegally enter the US every single day and return home every single night and have no negative impact until they have accrued more than 180 days of illegal presence. That's when the 3 year ban kicks in.If the same person accrued more than 365 days of illegal presence, it's a 10 year ban.If after they have accrued more than 365 days of illegal presence and then entered without inspection again, even for one day, a lifetime ban kicks in with a chance for a waiver 10 years after the person has left the US. That's why he was denied.

The time is calculated is based on the information you are required by law to provide on each of the forms -- the Fiance Visa application and the non-immigrant visa application. Each form has a section at the bottom:

I certify that I have read and understood all the questions set forth in this application and the answers I have furnished on this form are true and correct to the best of my knowledge and belief. I understand that any false or misleading statement may result in the permanent refusal of a visa or denial of entry into the United States. I understand that possession of a visa does not automatically entitle the bearer to enter the United States of America upon arrival at a port of entry if he or she is found inadmissible.

The applicant is also under oath at the interview. In addition, if he was ever caught entering ("catch and release") the consulate will know about it and probably have his fingerprints. He could also be asked for proof of the time he said he was in Mexico (light bills, phone bills, paystubs, etc) or proof of his life in the US. And if you don't tell the truth, you have to keep in mind that it's pretty difficult to not leave a paper trail in the US.

You should DEFINITELY have a hardship letter and evidence prepared. There's no question that he will be required to submit a waiver if he was illegally present. But if he re-entered after more than 365 days of illegal presence after 1997 and after he was 18, he will have a lifetime ban and will not be eligible for a waiver for 10 years.

You should also be sure you are 100% clear on the Ciudad Juarez pilot program and the need to make an infopass appointment for the day or so after his interview for waiver submission.

In the end, it's up to you if your choose to lie. But remember if he is caught lying, that just adds to the immigration problems since he will then be charged with misrepresentation, which requires a waiver.

http://travel.state.gov/visa/frvi/ineligib...ities_1364.html

C) MISREPRESENTATION

(i) In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

B ALIENS UNLAWFULLY PRESENT:

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

C) ALIENS UNLAWFULLY PRESENT AFTER PREVIOUS IMMIGATION VIOLATIONS.-

(i) In general.-Any alien who-

(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(II) has been ordered removed under section 235(b(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

(ii) EXCEPTION.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission

[DeannaA 0]

DeannaA's husband wasn't denied due to 2 EWIs. He was denied because he re-entered the US without inspection after he had previously been unlawfully present for more then 365 total days.

A person can illegally enter the US every single day and return home every single night and have no negative impact until they have accrued more than 180 days of illegal presence. That's when the 3 year ban kicks in.If the same person accrued more than 365 days of illegal presence, it's a 10 year ban.If after they have accrued more than 365 days of illegal presence and then entered without inspection again, even for one day, a lifetime ban kicks in with a chance for a waiver 10 years after the person has left the US. That's why he was denied.

The time is calculated is based on the information you are required by law to provide on each of the forms -- the Fiance Visa application and the non-immigrant visa application. Each form has a section at the bottom:

I certify that I have read and understood all the questions set forth in this application and the answers I have furnished on this form are true and correct to the best of my knowledge and belief. I understand that any false or misleading statement may result in the permanent refusal of a visa or denial of entry into the United States. I understand that possession of a visa does not automatically entitle the bearer to enter the United States of America upon arrival at a port of entry if he or she is found inadmissible.

The applicant is also under oath at the interview. In addition, if he was ever caught entering ("catch and release") the consulate will know about it and probably have his fingerprints. He could also be asked for proof of the time he said he was in Mexico (light bills, phone bills, paystubs, etc) or proof of his life in the US. And if you don't tell the truth, you have to keep in mind that it's pretty difficult to not leave a paper trail in the US.

You should DEFINITELY have a hardship letter and evidence prepared. There's no question that he will be required to submit a waiver if he was illegally present. But if he re-entered after more than 365 days of illegal presence after 1997 and after he was 18, he will have a lifetime ban and will not be eligible for a waiver for 10 years.

You should also be sure you are 100% clear on the Ciudad Juarez pilot program and the need to make an infopass appointment for the day or so after his interview for waiver submission.

In the end, it's up to you if your choose to lie. But remember if he is caught lying, that just adds to the immigration problems since he will then be charged with misrepresentation, which requires a waiver.

http://travel.state.gov/visa/frvi/ineligib...ities_1364.html

C) MISREPRESENTATION

(i) In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

B ALIENS UNLAWFULLY PRESENT:

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

C) ALIENS UNLAWFULLY PRESENT AFTER PREVIOUS IMMIGATION VIOLATIONS.-

(i) In general.-Any alien who-

(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(II) has been ordered removed under section 235(b(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

(ii) EXCEPTION.-Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission

Now what I'm confused about is that we were told that this law didn't come to effect until April of 1998. During that time he would have only had 1 illegal entrance from 2002 and his overstay of 365 days. His first illegal entrance was when he was a minor, which didn't count against him.

[kitkat1 5]

Now what I'm confused about is that we were told that this law didn't come to effect until April of 1998. During that time he would have only had 1 illegal entrance from 2002 and his overstay of 365 days. His first illegal entrance was when he was a minor, which didn't count against him.

The law went into effect April 1, 1997.

He first EWI'd as a minor.

Q: Did he accumulate illegal presence in the US after April 1, 1997 of more than 365 days?

Q: On what date did he turn 18?

Q: On what date did he re-enter the US with inspection

As mentioned, the dates and details make all the difference. If you believe the law was incorrectly applied, have you consulted a qualified attorney to guide you?

Aliens Previously Removed or Unlawfully Present in the United States [Effective April 1, 1997.]

Aliens Unlawfully Present After Previous Immigration Violations

INA §212(a)(9)© provides that aliens who were unlawfully present in the United States for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted, are excludable. A waiver is permitted if the alien is seeking admission more than 10 years after the alien's departure from the United States and if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplying for admission.