Robble42

Out of status doesn't mean an automatic 3 or 10 year bar anymore. You are not accruing unlawful presence until a judge or immigration agency says so. In 2020, a court issued a permanent injunction (https://www.uscis.gov/sites/default/files/document/injunctions/Guilford-College-v.-Nielsen-summary-judgment-permanent-injunction.pdf) against the 2018 rule, instructing the USCIS to go back to the 2009 Guidance (https://www.uscis.gov/sites/default/files/document/memos/revision_redesign_AFM.PDF). However, we heard from a lawyer that if you are out of status and go back, you still risk not being able to get back to the US because the issuance of a visa is at the discretion of the embassy.

Yes, she should file right away if you aren't planning on coming back on a non-immigrant visa. I heard it's taking about 2 years to process the I-130 these days.

Of course, we already have. That's how I know about all our options already... I'm just wondering if anyone else out there is going through something similar so that we can commiserate.

My husband applied for a J1 Hardship waiver for a 212(e) requirement based on his USC spouse (me), but we got denied roughly 2 1/2 years after filing (USCIS found hardship but DOS denied. Not financed by a US gov't agency). He hasn't been able to work for over a year. Living in his home country is not a viable option for me (I have a career here and family caregiving obligations) and we don't want to be separated because we are planning a family. So we're looking at other options to stay in the US together. One option is to apply for a Conrad-30 waiver position (this is for physicians to practice in an underserved area). The other is to litigate with the AAO to challenge the USCIS decision. (I know the denial letter says you can't challenge it, but there are some loopholes to the statute). It's very frustrating. Is anyone else going through something similar?

It seems that the DOS takes into account "program, policy, and foreign relations" concerns as well as your country's need for your knowledge and skills. Not sure if the DOS communicates with different governments, but that seems to be all the reasoning they give these days for an unfavorable recommendation.

Yes, we filed the FOIA about 3 weeks before getting a decision from DOS (after not hearing from them in 77 weeks). Of course, who knows when they'll fulfill our FOIA request. It was perfected, but they haven't sent our file yet. Their FOIA office says they have a months-long backlog.

I guess correlation doesn't equal causation, so I'm not sure if the FOIA sped things up or if it was just a coincidence. But the "queue" is a myth. We kept seeing lots of cases filed after us (by even a year) being decided before ours. I also read this from another lawyer's blog: https://webberimmigration.substack.com/p/uscis-foia-freedom-of-information?utm_source=%2Fsearch%2FFOIA&utm_medium=reader2

You can always consult another lawyer--they don't mind. The American Immigration Lawyers Association (AILA) can help with a referral. You have some options in case of overstay.

Not necessarily. But I would submit a FOIA to the DOS asking for a copy of your file (to make sure they haven't lost it). They have a big backlog right now, but it turns the pressure up (and it would not influence the actual decision, just maybe speed things up).

That was our understanding too, but the DOS seems to be denying hardship applications without rhyme or reason these days. If you're not already out of status, I would recommend trying to get another type of visa or considering leaving for 2 years. DOS doesn't seem to care about US citizens these days. If you are out of status, I would just hang on and hope for the best. If it gets denied, you can apply again or litigate.

No reason given at all. It figures.

We haven't received the written notice yet, but from what I gather, it'll probably be some BS reason. I'll let you know.

I think there are still some avenues to sue using creative legal arguments. We haven't lost hope completely.

Not anymore...we've heard of a bunch of cases like ours that didn't get govt funding and weren't approved by the DOS. A lot of them had a long wait as well--for cases that clearly have a lot of hardship. One person was denied even for a sick US citizen kid. It feels like the US doesn't even care about its own citizens anymore, let alone immigrants.

Thanks, we'll try that. Yeah, we'll have to see what USCIS decides. There were no sponsor views (the J1 wasn't US sponsored).