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  • I-601 Help

    As many of you may or may not know, my husband overstayed his visa. He left the USA of his own free will, but attempted to re-enter the USA LEGALLY after having left. He was stopped at the border and took voluntary departure. We were initially told that we needed to file the I-601 and the I-212 and we did so.

    However, I just received word that we were denied because my husband was ineligible to file the I-601. I have been working extensively on this case for almost three years, and at know time did I come across information that suggested that we could not file for a waiver.

    I happen to know that the immigration officer reviewed 100 cases in less than week (and ours was particularly lengthy) and therefore feel that he may have made a mistake. However, I am 4000 miles away and I am unable to actually make many of the necessary calls (although they WILL get done trust me!)

    Can anyone clarify this situation for me please!

  • #2
    As many of you may or may not know, my husband overstayed his visa. He left the USA of his own free will, but attempted to re-enter the USA LEGALLY after having left. He was stopped at the border and took voluntary departure. We were initially told that we needed to file the I-601 and the I-212 and we did so.

    However, I just received word that we were denied because my husband was ineligible to file the I-601. I have been working extensively on this case for almost three years, and at know time did I come across information that suggested that we could not file for a waiver.

    I happen to know that the immigration officer reviewed 100 cases in less than week (and ours was particularly lengthy) and therefore feel that he may have made a mistake. However, I am 4000 miles away and I am unable to actually make many of the necessary calls (although they WILL get done trust me!)

    Can anyone clarify this situation for me please!

    Comment


    • #3
      Thank you for your response. However, I am a USC (born and raised Irish American, upper middle class, graduate educated, etc.) Therefore, I am the qualifying relative on the petition (I guess I should have clarified that ahead of time!)

      Comment


      • #4
        Hi Spouse,
        I can't believe what you are saying! I know that you are the one that presented the waiver for your husband but how can he not be eligible? As you know I am in the same case that he is! Have you ever posted on www.britishexpats.com? I find it a much better board.

        Comment


        • #5
          Oh Spouse, I'm so sorry about all of that
          Who told your husband he needed to file the 601? We received a request on letterhead asking for the waiver to be filled out and returned with the supporting documents at his K1 interview. I know that you have to be denied a visa first before you can submit the waiver. Is that how it went?

          Comment


          • #6
            Hi. Lost don't panic yet. We are still under the impression that there was a mistake or a misinterpretation. I am currently in touch with a lawyer, looking at the online laws, and my father is also examining the laws that he has printed off.

            We are thinking that perhaps it is somewhat unusual for a person to leave the USA under their own free will, and as we provided a great deal of information, it is possible that the person reading it became somewhat confused and believed that my husband and been deported previously. Assuming that is the case, we should be able to rectify the situation, and hopefully the delay won't be too bad, although with my luck they will probably make me file an appeal or something.

            Either way, I can deal with that, but I cannot deal with the possibility that he will be excluded from the USA for 10 years with no chance of appeal based on the fact that he left the country of his own free will, and attempted to rectify the illegal situation. He was young, ignorant and stupid... not criminal.

            Of course the worst thing is that we would have to live with the knowledge that we could have married under 245i and everything would have been fine.... aaaaaaaagggggghhhhh oh well I am going to head back to work on this to see if I can make heads or tales of the situation and I will definitely keep everyone posted!

            And no someone... he never tried to pass himself off as a USC... and I couldn't even begin to imagine him as a terrorist or drug or people traffiker... he has never taken any drugs, disapproves of them completely, and is not even willing to drive over the speed limit! So I am pretty sure that there has to be a confusion, and we just need to find out exactly where it is!

            Oh well, back to work!

            Comment


            • #7
              Hiya Lonely in the USA! Yes, we were denied the visa, and we were told at that time that we would have to file the I-601 and the I-212. They also said that if those were approved we would be able to reapply and my husband would be able to eligible to receive the visa...

              Comment


              • #8
                I hate to hear that spouse.Please share any new info with us.When exactly did you file and where?

                Comment


                • #9
                  Hi. I filed in Guayaquil, Ecuador in March of 2003. However, I submitted additional material in August, at which point they promptly lost any record of having received the original information in March.

                  From what I can tell it appears as if they are finding my husband ineligible according to Act 276, however that act does not apply to him.

                  Therefore, I am desperately seeking other areas with similar laws which could cause him to be found ineligible to apply for the waivers... if in fact they exist.

                  Does anyone know how to contact Mohan, he often tends to have a good idea for where to look in regards to legal information.

                  Thanks for your help and support!

                  Comment


                  • #10
                    hi,
                    Here I,m.
                    I recall my self. I offered you my help previously too, which was declined by you because your father and the attorney was working togather on this waiver.. any way.
                    I have little doubt before asking thing else, (I,m just guessing, correct me if I,m wrong)) your husband took Voluntary departure on his second entry right? Means that he tried to entered second time If yes then he was put into expedite removal and he was offered two choices.If this is your case then, he will be bared to get relief for five years.
                    if this is not correct then post the actual letter from INS . I want to know the VD decision.
                    Its a discussion, not a legal advise..

                    Comment


                    • #11
                      Hi spouse i have been following your case for a while i am one of you guys who applied for the 1-601 waiver i am so sorry to hear what is happening to you im sure it might be a mistake on their side hang in there and everything will be ok at the end. as for us we applied our waiver on sept 19 in which we were told its will be two months for the decison three months will up in few days an still there will be now word from the DHS in Shoeul korea GooD Luck and keep us posted

                      Comment


                      • #12
                        I'd never doubt Mohan's answer, but for your sake, I hope he's wrong....
                        I'm sorry to hear that Mohan. No relief for 5 years? That's awful

                        Comment


                        • #13
                          Mohan

                          Hi. We did communicate and you mentioned that you thought it sounded as if we had everything in order.... but reading your comments etc has really been helpful to me.

                          Anyway,my husband did take voluntary departure when he attempted his second entry, and he was given a 5 year bar. For which we filed the I-212 waiver.

                          What they are telling us now is that the I-601 waiver was denied because he had attempted re-entry and he is therefore ineligible to apply, however according to the sections of law that I have seen (Sec. 276 [8 U.S.C. 1326] and Sec 241.17(a)(5).) he would have had to be under an order of removal when he left originally, which he was not, to be ineligible. If he is actually ineligible to apply, then he would not only be barred for 5 years, but for 10. Or at least that is what they are telling me.


                          What I need to find out right now is whether there is another section of law that could make him ineligible or if there is an interpretation of the law that considers unlawful presence (due to overstay) equivalent to an order of removal.

                          I would appreciate any help or advice you could give me on this.

                          Thanks!!!

                          Comment


                          • #14
                            Sec. 1326. - Reentry of removed aliens


                            (a) In general



                            Subject to subsection (b) of this section, any alien who -

                            (1)

                            has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

                            (2)

                            enters, attempts to enter, or is at any time found in, the United States, unless

                            (A)

                            prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or

                            (B)

                            with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,


                            shall be fined under title 18, or imprisoned not more than 2 years, or both.

                            (b) Criminal penalties for reentry of certain removed aliens



                            Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection -

                            (1)

                            whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both;

                            (2)

                            whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;

                            (3)

                            who has been excluded from the United States pursuant to section 1225(c) of this title because the alien was excludable under section 1182(a)(3)(B) of this title or who has been removed from the United States pursuant to the provisions of subchapter V of this chapter, and who thereafter, without the permission of the Attorney General, enters the United States, or attempts to do so, shall be fined under title 18 and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence. [1] or

                            (4)

                            who was removed from the United States pursuant to section 1231(a)(4)(B) of this title who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien's reentry) shall be fined under title 18, imprisoned for not more than 10 years, or both.


                            For the purposes of this subsection, the term ''removal'' includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.

                            (c) Reentry of alien deported prior to completion of term of imprisonment



                            Any alien deported pursuant to section 1252(h)(2) [2] of this title who enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien's reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to such other penalties relating to the reentry of deported aliens as may be available under this section or any other provision of law.

                            (d) Limitation on collateral attack on underlying deportation order



                            In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that -

                            (1)

                            the alien exhausted any administrative remedies that may have been available to seek relief against the order;

                            (2)

                            the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

                            (3)

                            the entry of the order was fundamentally unfair



                            --------------------------------------------------------------------------------
                            this is the above discription for alien removed.
                            Its a discussion, not a legal advise..

                            Comment


                            • #15
                              SEC. 5. LIMITATION ON COLLATERAL ATTACKS ON UNDERLYING DEPORTATION
                              ORDER.
                              (a) In General: Section 276 of the Immigration and Nationality
                              Act (8 U.S.C. 1326) is amended by adding at the end the following
                              new subsection:
                              `(c) In a criminal proceeding under this section, an alien may
                              not challenge the validity of the deportation order described in
                              subsection (a)(1) or subsection (b) unless the alien demonstrates
                              that--
                              `(1) the alien exhausted any administrative remedies that may
                              have been available to seek relief against the order;
                              `(2) the deportation proceedings at which the order was
                              issued improperly deprived the alien of the opportunity for
                              judicial review; and
                              `(3) the entry of the order was fundamentally unfair.'.
                              (b) Effective Date: The amendment made by subsection (a) shall
                              apply to criminal proceedings initiated after the date of the
                              enactment of this Act.
                              there is more to come.....
                              Its a discussion, not a legal advise..

                              Comment



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