Ten year ban and information mistakes

[olafgypsy 0]

Hello everyone. Today my fiance and I had our interview at the consulate (Bogota) and received some shocking news -- my fiance has a ten-year ban against him for overstaying a J1 visa. Because we were uneducated about the immigration laws, we did not realize this would happen. Further complicating our case, our consular interviewer seemed doubtful our K1 visa would be approved in any case because of the numerous careless mistakes I made on the petition regarding biographical info. Basically, we did everything wrong.

Now I am wondering what to do next. What we would want to do in a perfect world is withdraw our petition and start over. But is it possible to withdraw a K1 petition and submit again for the same person?

Another option: what would happen if we canceled this petition (is that even possible at this point?), got married in Colombia, and started the process over again, this time with an I-130? The advantage of this approach is that we would have time to build a case for the I-612 (petition to remove the ten-year-ban), which we would then have all ready to file after the interview.

One thing I'm confused about: all the information I've read seems to indicate that the I-612 can only be filed after the visa is approved. But the consular officer neither approved nor denied our visa: she just expressed doubts about our case. ??????????? She then told us to return for a waiver interview. Does that mean our visa was approved?

Sooooo confused.

[Jaseball 0]

If there is a waiver interview scheduled, then I would check and fill out the waiver first. It is probably a good idea also checking with the specific forum for the country embassy you are dealing with.

No point in withdrawing the K1 because I doubt it would make a difference- if you are at the consular interview portion the petition and application is already in the works and you are at the very end, so it is going to show up whenever he applies for any sort of visa. Best bet would be to prepare the waiver forms, perhaps hire an attorney.

If this K1 is denied you should definitely get his status cleared. Getting married there and then going through the spouse visa process will just hit the same snags as before and you'll have the K1 denial sitting there too.

[bszoom42 0]

I would advise you start finding a lawyer. Most lawyers will give a free consultation so they can evaluate if they want to take the case and if you feel comfortable in their knowledge.

[Bill y Bella 0]

It may be a little late, but the Colombia Club forum could have helped you avoid some of the delays you had and maybe still help some.

I posted a request for help for you here.

[kitkat1 5]

It's unfortunate that you didn't realize in advance that overstaying a visa results in a ban. Simple, harmless errors on paperwork does not result in denial so you're best to ignore that stupid remark.

Do NOT withdraw and start over -- you will lose a ton of time and money and you would still be facing the need for a waiver.

If you are returning for a "waiver interview" (which isn't normally really an interview but a quick review of the facts to make sure he is eligible for a waiver and understands the requirements) then he WAS denied and he is waiver-eligible and is required to file one in order to get an approved visa. You need to take some time make sure you clearly understand what is required -- you, as the USC fiance and qualifying relative, are required by law to prove extreme hardship to you if his visa is ultimately denied and you need to relocate permanently to his country.

Start by researching the process and make sure you understand exactly how much time you have to file the waiver/hardship letter and evidence. Some consulates seem to require in within 30 days. You should DEFINITELY consult with a qualified immigration attorney who is experienced in waivers like Heather Poole or Laurel Scott.

Start here as well as read everything in the 601 forum on www.immigrate2us.net:

General Information on waivers: (type if as all one word since the admin here has banned helpful links to this particular site)

http://www. family based immigration dotcom/forum/waivers.php

Here for hardship letter information: (doesn't matter that this is from Mexico - the rules are basically the same everywhere)

http://ciudadjuarez.usconsulate.gov/...shardship.html

Examples of approved hardship letters:

http://immigrate2us.net/forum/showthread.php?t=22

Tips for writing the hardship letter:

http://immigrate2us.net/forum/showthread.php?t=83

Examples of denied hardship letters:

http://immigrate2us.net/forum/showthread.php?t=29

[Gaby&Talbert 1]

Follow kitkats advise she is the expert in this.

[Lilikoi 0]

But kitkat wrote when you face the 10 year bar you cannot file for 601. Is this different in between k1,k3 etc. I am so confused.

[TracyTN 237]

But kitkat wrote when you face the 10 year bar you cannot file for 601. Is this different in between k1,k3 etc. I am so confused.

Where did she write that?

[Caladan 19]

But kitkat wrote when you face the 10 year bar you cannot file for 601. Is this different in between k1,k3 etc. I am so confused.

Here's the part of the law that kitkat quoted in the other thread:

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.

Break it down. You are excludable if:

A) you were unlawfully present for more than one year (aggregate, so they add up all your overstays) or A*) you were ordered to be removed

AND

C) you then entered or tried to enter the U.S. unlawfully, i.e., tried to sneak in without inspection

You need to fulfill both of those conditions to incur a lifetime ban. If you were here legally, and just overstayed, and didn't try to sneak in afterwards, you incur a ban, but it's NOT a lifetime ban, and it is waiverable.

The specific clauses are important.

To the OP: the standard of admissibility and inadmissibility doesn't change based on whether you are a fiance or a spouse. You'd have to file a waiver either way. So while you could get married, you might as well see the process you've already started through till the end. kitkat's advice is excellent.

[jula 0]

But kitkat wrote when you face the 10 year bar you cannot file for 601. Is this different in between k1,k3 etc. I am so confused.

Wheather I-601 can be filed depends on why a ban is imposed, not how long is a ban. 10 year bar is a "punishment" for different things (overstay >1 year, deportation...), 601 helps in some cases, but not all.

[Gaby&Talbert 1]

I would like to say I am VERY PROUD to see the posts following kikats because they were all helpful and not judgemental.

Just follow everything kitkat posted and post questions but ignore criticisms.

Edited August 22, 2007 by Gaby&Talbert

[kitkat1 5]

Wheather I-601 can be filed depends on why a ban is imposed, not how long is a ban. 10 year bar is a "punishment" for different things (overstay >1 year, deportation...), 601 helps in some cases, but not all.

Whether or not a 601 can be filed depends on whether or not the applicant is eligible -- not the ban itself. A 601 covers visa ineligiblities/inadmissibilities i.e. communicable disease, illegal presence, misrepresentation, etc. A 212 waiver covers deportation.

Example: A person who overstays a legal tourist visa in the US for more than 180 days but less than 365 days has a 3 year ban. If the person has a "qualifying relationship" to a USC i.e. spouse or fiance and has not broken any laws that would prohibit him from filing a waiver, a waiver is available. If the USC can prove extreme hardship with evidence, the waiver may be approved.

Example: A person who overstays a legal tourist visa in the US for more than 365 days has a 10 year ban. If the person has a "qualifying relationship" to a USC i.e. spouse or fiance and has not broken any laws that would prohibit him from filing a waiver, a waiver is available. If the USC can prove extreme hardship with evidence, the waiver may be approved.

For a person who entered without inspection ONE time with the above timelines, a waiver is available.

For a person who entered without inspection a SECOND time after accruing more than one year of unlawful presence is NOT waiver eligible -- it's a lifetime ban with a possibility of a waiver in ten years.

(Note the operative words -- without inspection)

Lilikoi, yes you are confused and so is your lawyer - I tried to clarify in your other post. You entered WITH inspection - you are eligibile for a waiver.

[olafgypsy 0]

I would like to say I am VERY PROUD to see the posts following kikats because they were all helpful and not judgemental.

Just follow everything kitkat posted and post questions but ignore criticisms.

Thanks everyone. This advice is really helpful. I will be consulting with an immigration lawyer some time this week. One thing I'm still confused about, and am wondering if people could weigh in on . . . at what point would the K1 visa be approved? Does it need to be approved before we can start the waiver process? Or would we wait until after (God willing) a waiver is approved and THEN try to get K1 approval?

[kitkat1 5]

One thing I'm still confused about, and am wondering if people could weigh in on . . . at what point would the K1 visa be approved? Does it need to be approved before we can start the waiver process? Or would we wait until after (God willing) a waiver is approved and THEN try to get K1 approval?

The K1 visa was already denied at the interview due to his illegal presence. That is why he needs a waiver. Once the waiver is approved, he will get his K1 visa. (They should have explained this at the denial but since you are returning for a waiver interview, perhaps they plan to explain it at that time). I would start reading and researching so you can ask as many questions as you might have at that "interview".

http://www.family based immigrationdotcom/forum/waivers.php

Waiver Overview

As long as the requirements of a fiance ( fiancee ) or spousal visa petition are met, the petition will be approved. (An approved petition is simply an approval for the foreign fiance ( fiancee ) or spouse to have the privilege of interviewing for a fiance ( fiancee ) or spousal visa at their consulate). An Application for Waiver of Grounds of Inadmissibility (Form 601) becomes necessary when a visa applicant has been determined to be “inadmissible†based on one more visa ineligibilities.

The most common visa ineligibility is illegal presence/prior visa overstay of more than 180 days, which results in a 3 year ban. More than 365 days of illegal presence results in a 10 year ban. Note that illegal presence under 180 days does not hold a ban and does not require a waiver. Also note that illegal presence under the age of 18 does not “countâ€.

The ban takes effect when the person leaves the US, therefore the clock starts ticking at that point. An approved waiver overcomes the ban and results in visa issuance. Be aware that some ineligibilities such as falsely claiming US Citizenship result in a lifetime ban and waivers are not available. In the case where the applicant has been determined to be a drug or alcohol addict at the pre-visa interview medical exam, a waiver is not available and a visa is not available for three years. In these cases, the consulate generally has other requirements such as proof of rehabilitation and/or submission of regular drug tests results during the waiting period. In these cases, it’s extremely important that the applicant understands exactly what the consulate requires.

Visa Ineligibilities include: (Complete list here: Classes of Aliens Ineligible to Receive Visas - and here: Abridged Listing of Grounds of Ineligibility under INA

• Have been determined to have a communicable disease

• Have been determined to have a dangerous physical or mental disorder

• Have been determined to be a drug or alcohol abuser

• Have committed serious criminal acts, including crimes involving moral turpitude, drug trafficking, and prostitution

• Are likely to become a public charge

• Have used fraud or other illegal means to enter the United States (misrepresentation)

• Have accumulate illegal presence in the United States of more than 180 days

• Have a two foreign residency requirement (for former exchange visitors).

What happens if the visa applicant is not eligible for a visa due to ineligibility?

At the visa interview, the consular officer determines if the applicant is ineligible for a visa, determines if the law provides for a waiver and determines if the applicant is eligible for a waiver. For this reason, waivers cannot be submitted until the interview has taken place and the applicant has been denied. I-601 waivers filed at a consulate are adjudicated by the CIS 601 adjudicator abroad. If you know in advance that a waiver will be required, in the interest of time it’s best to have the waiver completely prepared and ready to submit immediately after the denial at the visa interview. Consular officers usually provide the waiver form to the applicant along with reason for denial and denial codes written in. Fingerprints need to be taken and the waiver fee needs to be paid. Then a complete waiver package can be submitted.

What does the law require?

The law requires that the “Qualifying US Citizen†(the USC fiance ( fiancee ) or spouse) proves “extreme hardship†to them, the USC, if the fiancé or spouses visa is not ultimately approved and as a result they need to relocate permanently to their fiancé/spouse’s country. (A US citizen fiancé IS a qualifying relative – see 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)). Extreme hardship" is vaguely defined as “greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admissionâ€. At some consulates, it is necessary to prove both why the USC cannot move abroad AND why the USC cannot simply live in the US without the Alien. Most waiver hardship letters chose one point of view. Be sure to clarify with the consulate exactly what they require.

Hardships and Evidence:

The USC needs to write a clear and detailed letter explaining each situation and circumstance that will cause “extreme hardshipâ€. It is not enough to say that the US Citizen will feel sad or miss the fiancé/spouse – this is “normal†hardship. The details provided in the letter as well as the evidence/documentation are the key, vital issues in the waiver process.

The best way to approach the hardship letter and evidence is for the USC to think about every aspect of how their life would change if they had to relocate permanently to their fiancé/spouses country. These arguments form the basis of the hardship letter. Again, each argument must be supported with evidence. Note that some consulates require a letter from the visa applicant in addition to the letter from the USC. Be sure to clarify with the consulate whether or not this is necessary.

Extreme hardship can be demonstrated in many aspects of your life such as:

HEALTH/MEDICAL - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your fiancé/spouse’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.

FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).

EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.

PERSONAL CONSIDERATIONS - Close relatives in the United States; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

Any other situation that you feel may help you meet the burden of extreme hardship.

Include as much legitimate, detailed evidence as possible. For example, in discussion of medical conditions of the USC, include personal letters from your doctor, nurses, therapists, medical records, prescription information, etc. Always try to include information from US government sources such as Information from the National Institutes of Health

In cases that are not personal issues such as safety in the fiancé/spouse’s country, cite US government sources such as Consular Information Sheets or CIA factsheets

Approach the letter and evidence with the idea that the adjudicator knows nothing about your situation, be it medical, financial, safety, education, employment, etc. and be prepared to explain and prove each and every item.

What happens next?

After the waiver form, fees, fingerprints and hardship letter/evidence have been submitted, the fiancé/spouse may not enter the United States. Waiver adjudication is generally slow, and varies by consulate. Some consulates have an on-line tracking system such as London, while others provide no updates or information until a decision has been made. Once a waiver has been approved, it means the inadmissibility has been “waived†and a visa can now be issued. A date is set up for visa pick-up or delivery (depending on the consulate’s procedure). Once the visa has been received, the fiancé/spouse can legally enter the United States and continue the next steps in the fiancé/spousal visa process (if any).

Edited August 22, 2007 by kitkat1

[Lilikoi 0]

Hello Kitkat,

WOW, I am really impressed..... Thanks you so much for your wonderful help. Now I finally have the answer.