I'm married to USC and took voluntary departure after 348 days visa overstay. Married during removal proceedings.
I'm applying for K-3 Visa and they said I have to file I-212 waiver and it's hard to get it approved even when my wife is USC. Any advice or please share your experience. (I'm in europe)

AC

When you get a moment, read this entire thread. It will give you allot of advice for K-3 waivers.

Hi. I am afraid that I have some bad news for you. You will probably need to file the I-601 in addition to the I-212 waiver. The I-212 waiver would be for the voluntary departure/deportation bar (probably 5 years) and the fact that you overstayed a visa by more than a year makes you eligible for a 10 year bar (for this you need to file the I-601).

The good news is, that they are very similar in content as they are both hardship waivers. You should probably plan for the I-601 waiver which is the harder of the two waivers and then just submit the same materials with the I-212 form.

If you are wondering how I know this it is because my husband overstayed his visa by more than a year and later took voluntary departure. We first planned on filing only the I-601 but at last minute we learned about the I-212.

Basically you want to prove extreme hardship to the USC. Things like medical conditions that cannot be treated in another country, interruption of studies, severe changes in standards of living (for the USC), etc may have an effect (for both waivers.)

Also, look at the I-601 thread.

They are difficult waivers, butI understand that some have been approved. My recommendation is to take your time to do it right.... also make sure you double check your lawyers knowledge on the topic, and or double check what s/he does.

Good Luck to you.

If you're case is recent (say after 97/97), i don't think you'd qualify for i212 relief. I'm not sure on this but the "new" laws of 96 have amended that relief. They can only be taken advantage of by someone whose problems or removability issues started before 97 (before IRRARA 1996 went into full effect)

I haven't overstayed my visa for more than a YEAR. 348 days is less. What's in that case?

Oh whoops sorry.. I must be tired. You will still need to file an I-601, however, the bar is for only 3 years. This means that even if it is not approved, you only need to wait three years to be able to apply for reentry without a waiver.

MUCH better!!!

I don't understand why I need to file I-601?
And here is what somebody said. Like I don;t need a waiver at all.

"The reason you are not subject to the bars, and therefore don't have to get a waiver of the 3 year bar, is because you were unlawfully present for more than 180 days but not less than 1 year, and departed AFTER commencement of proceedings. The bar only applies to people who left PRIOR to proceedings. "

is it for real like that???

If you took voluntary departure, you should not need an I 212 - but, if you accumulated more than 180 days of unlawful presence, your spouse will have to file an I601. If you have more than 365 days of unlawful presence you still need an I601.

Hi. I may be somewhat wrong on this. There may be different laws that I am not aware of regarding three year bars. Normally, the three year bar is applied to people who stay over 6 months but under a year. Normally to waive this bar a person needs to file the I-601. INS (if not BCIS) has not always shown itself to be well organized or even to present the necessary information in a timely fashion. Therefore, I thought there might be a possibility that you would need to file the I-601.

If however there is a law that says that if you left after proceedings began in the USA then the bar is not applicable, then all the better for you. I truly hope that is the case. If you have a chance I would double check this information in order to be sure. It really isn't pleasant to find information like this out at the last minute.

Either way it is somewhat irrelevant as you have to file the I-212, which is very similar in nature to the I-601. If I were you I would act as if I were applying for the I-601, and would gather evidence as if I were applying for that waiver (which is supposedly the harder one to get). In this way you will be well prepared for the I-212.

Definitely read all information about the I-601 whether or not you need to file it.

Observation... voluntary departure is still considered expedited removal or deportation and therefore requires the waiver (I was a little confused on this matter myself until we were told that we had to file it!)

Hope this helps... sorry if I have confused you at all.

Normally those who take vol dep were NOT deported and hence, do not need the Attorney General's permission to be readmitted - that is what the I 212 is for - and it would be sent to the port of entry where the deportation took place. However, if the alien involved had some other outstanding order to depart, then he/she may need the I 212. BUt normally a person taking VD (no, not that kind!) would not require an approved I212 - but the overstay most likely caused the 3 yr bar and for that, an I601 is needed (filed by the spouse, not the alien). If it turns out that both are needed (212 & 600) they can be filed simultaneously at the consulate though they will be sent to different BCIS offices.

Guys , So I definetely don;t know If I need I-212 or I need I-601 or I need both Or I don't need neither. Who can help me out??? I'm not sure if INS knows exactly about it. HELP!!!

YOU NEED THE I-212! You took voluntary departure... but you were forced to take "voluntary departure" you were caught by INS/BCIS. Regardless of what anyone else says, believe what you already know. You were given a bar on re-entry and you will have to file the I-212. It is that simple.

If you don't believe me, call the INS/BCIS themselves (a couple times is recommendable).

I am not sure about the I-601. You might want to consult with a lawyer regarding this. I believe that it is a real possibility, but I am not sure. The good news, is that the waiver is similar to the I-212 it is just processed in a different location. Therefore, if you prepare well for the I-212 and you find out at last minute that you do need the I-601 you can submit the same information, but with the I-601 form instead of the I-212 form.

Check with a lawyer. Call INS. Everyone on this board can only give information to the best of their knowledge.

Observation... I am not sure where you received your knowledge. However, it is this simple... I believed the same thing that you believe now, until INS/BCIS told me that I had to file the I-212 for my husband... who took the voluntary departure option.

Voluntary departure may still make things somewhat easier for you, but in many ways it is still a forced departure. I hope that you can understand this. If you prefer not to believe me, feel free to contact immigration and I am sure that they will clarify this information for you.

Thanks for your help though!

Spouse & other Here is what I found regarding the BARS & My waiver. Please read it post your opinion. I left after IJ granted voluntary departre between 180 - year (I had 348 illegal days). According to this I don't need any kind of waiver. Of course if there was no other updates in this law. Looks like this one dated 1998.
Here is some section from:


R 040134Z APR 98
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
GUANGZHOU POUCH
BUJUMBURA POUCH
PORT MORESBY POUCH
INFO HQ USINS WASHDC
DEA WASHDC 0000
USIA WASHDC 0000
DIRNSA FT MEADE MD
CIA WASHDC 0000
DEPT OF JUSTICE WASHDC

Unclas State 060539
Visas, Inform Consuls

E.O. 12958: N/A
Tags: CVIS
Subject: P.L. 104-208 Update No. 36: 212(a)(9)(A)-(C),
212(a)(6)(A) and (B)

Ref: A) 96 State 239978 (IIRAIRA Update No. 10)
B) 97 State 62429 (Update No. 20)
C) 97 State 235245 (Update No. 34)
D) 98 State 51296 (Update No. 35)



_______________________________________________
15. The three-year bar: under INA 212(a)(9)(B)(i)(I)("9B1"), aliens who
were unlawfully present in the U.S. for over 180 days but less than one
year, and who subsequently depart the U.S. voluntarily prior to
commencement of removal proceedings, are inadmissible for three years. A
departure is considered voluntary for 9B1 purposes if the alien departs
either entirely on his/her own or pursuant to a grant of "voluntary
departure."
_______________________________________________

18. One of the most confusing aspects of 9B is the differing treatment
accorded to aliens under 9B1, depending on whether the alien departed
before or after commencement of removal proceedings. Because 9B1, by its
terms, applies to aliens who departed "prior to the commencement of
[removal] proceedings," it follows logically that it does not/not apply to
aliens who depart after/after removal proceedings have commenced. Removal
proceedings generally begin when a Form I-862, "notice to appears (NTA), is
filed with the immigration court. Thus, an alien who was unlawfully
present for over 180 days but less than one year who departs voluntarily
before any Form I-862 has been filed with the immigration court would/would
be subject to the three-year bar, whereas an alien in the same
circumstances who departs voluntarily after/after an I-862 has been filed
would not/not be subject to the three-year bar, even though he/she has
unlawfully present for the period set forth in 9B1. (Although such an
alien would not be subject to 9B, he/she might be ineligible for a visa
under some other INA provision (e.g., as a self-deportee under 9A (if
departure occurred after an order of removal has issued), or for failing to
attend an immigration hearing under 212(a)(6)(b)).
_______________________________________________
(IV) Alien remains more than 180 days and less than one year after date on
I-94, is placed in proceedings, is found removable as an overstay and
granted voluntary departure by the IJ within the same period, and departs
within V/D period: not subject to 9B (three-year bar does not apply
because alien did not depart prior to commencement of removal proceedings,
and ten-year bar does not apply because alien did not accrue at least one
year's unlawful presence). Alien is nevertheless subject to 222(g) because
of the IJ's finding that he remained longer than authorized.

What is "222G"?

222G. THis is about Visa. The VISA I use enter Is VOID now.. nothing about the waivers!

g)2/(1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.



(2) An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except-


(A) on the basis of a visa (other than the visa described in paragraph (1) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or



(B) where extraordinary circumstances are found by the Secretary of State to exist.

Do I need waiver or not? Please help.

I guess you want to know thatif you need waiver Or not.
thumb rule.
Count the days from the voluntarty departure date including time provided by the IJ, IF it more then 180 days you have 3 years Bar.
To define more;
If you are granted VD on January 1st with 60 days time to depart and you didnot leave within that two months . You date will be reverted to January 1st, now count starting January 1st of you accumulated more then 180 days you have 3 years bar, if one year then 10 years.
Why because final adminstrative order was entered in DACS system on that day.

TO MOHAN: Hey let me tell you a little bit more. I entered on May 19 2001 , then apply for extension. Granted till May 17 2002. Illegal days started on May 18 2002. February 3rd got NOA to appear at the court at MAY 21 2003. I asked for Voluntary departure on april 29 2003 , April 30 2003 GRANTED by IJ. LEft the same day April 30. 2003. My illegal days are May 18 2002 - April 30 2003. something like 348 days. BUt look I post some Cable of state above. read it , and let me know what you think. THIs is a really good case. As for me it seems like I don't need waiver according to that Law.

I read it many times in my life and seen many cases.
read it.

18. One of the most confusing aspects of 9B is the differing treatment
accorded to aliens under 9B1, depending on whether the alien departed
before or after commencement of removal proceedings. Because 9B1, by its
terms, applies to aliens who departed "prior to the commencement of
[removal] proceedings," it follows logically that it does not/not apply to
aliens who depart after/after removal proceedings have commenced. Removal
proceedings generally begin when a Form I-862, "notice to appears (NTA), is
filed with the immigration court. Thus, an alien who was unlawfully
present for over 180 days but less than one year who departs voluntarily
before any Form I-862 has been filed with the immigration court would/would
be subject to the three-year bar.

You was put on Deportation proceedings on February 3rd. On that date your physical clock stoped.( Means you cannot accmulate physical presence any more)and Ij ordered you to leave and you left you will not be subject to Bar.
There are two aspect of this Law.
ONe for alien who overstay more then 6 mo and leave to his own ( NO NTA OSC was issued) he will be subjectto Bar.
Other for Alien WHO put ON Deportation Proceedings I-94 Put on Proceedings, NTA/OSC issued, And granted VD and he leaves within the time alloewd, he will not have Bar.
Third The Alien WHo Put on NTA/OSC. Granted VD and Time 30/60 days to leave and still don't leave he will be subjected to bar and panelities. in this scanerio date revert back to the date of final hearing.
I think I made myself clear.

to MOHAN: THanx for help. Now I can go to US embassy to get my K-3 Visa without any freakin Waivers.!!!! I like it.