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  • What should I do

    I am a US citizen who married an illegal. We have been married almost eight years. I filed the I130 in August 2001 and we just got the approval. I asked several lawyers what we should do and they said my wife should go to Mexico. She left in August.what should we do now,Do we need to file the I601 now or wait for the interview. I would appreciate any info.

  • #2
    I am a US citizen who married an illegal. We have been married almost eight years. I filed the I130 in August 2001 and we just got the approval. I asked several lawyers what we should do and they said my wife should go to Mexico. She left in August.what should we do now,Do we need to file the I601 now or wait for the interview. I would appreciate any info.

    Comment


    • #3
      Sorry to hear about your situation.

      Assuming that your wife entered without inspection and,thus, was not admitted or paroled into the United States), she would not have been able to adjust status (get her green card while remaining in the United States) because of section 245(a) of the Immigration and Nationality Act ("INA").

      If she came to the United States illegally, she may now need a waiver in order to return. For example, if she were "unlawfully present" in the United States (i.e., here without being admitted or paroled, or admitted or paroled but here after the time that her visa expired) for over 180 days, she might be subject to either the 3 or 10 year bars on re-entry imposed by section 212(a)(9)(B) INA. In that circumstance, she would need to apply for a waiver under section 212(a)(9)(B)(v).

      In order to qualify for such a waiver, your wife would need to be able to demonstrate "extreme hardship" to her U.S. citizen spouse (i.e., you). This is a tough standard to meet, and "extreme hardship" means more than the usual hardships caused by separation (such as feelings of sadness or loneliness). Please see cases on the meaning of "extreme hardship" that can sometimes be found in the law section of the BCIS website (such as Matter of Anderson (BIA, 1978)) or some of the posts on this website for a better exposition of what may be needed to satisfy this standard. Examples of "extreme hardship" include economic disadvantage if you were forced to move to Mexico (but note that Matter of Ngai (BIA, 1984) stated that economic problems in alone may not necessarily be sufficient to qualify for extreme hardship) and any medical issues on the part of you or your close relatives.

      However, other waivers may be necessary depending upon her medical background and criminal history. See, section 212(a) INA for such grounds of inadmissibility.

      There is also the general, "fall back" waiver which might be available under section 212(d)(3) INA for applicants for nonimmigrant visas. Although your wife is a prospective immigrant, you could maybe try to bring her over here as a nonimmigrant and then apply to adjust status when she arrives (because she will then have met the requirement of being admitted to the United States).

      The standard for the section 212(d)(3) type of waiver is not so high (see, generally, Matter of Hranka (BIA) and the Foreign Affairs Manual (which is available on the U.S. State Department website). Again, I recall that on recent post on this site contains an article authored by Christina La Brie, Esq. of the Cyrus Mehta law firm that provides a useful description of this provision and its uses.

      Now, here's what to do:

      First, you need to determine if you need a waiver. If you do not (and assuming that your I-130 approval is still valid), your wife can simply obtain an immigrant visa as an immediate relative of a U.S. citizen at the U.S. Embassy in Mexico.

      Second, if she does need a waiver, she will need to file form I-601 (wih the $195 filing fee) to the U.S. Embassy in Mexico with sufficient supporting evidence to establish that she qualifies for a waiver (e.g., a letter or memo setting out the "extreme hardship" that you would suffer, along with affidavit and documentary evidence of your hardship - and maybe even some case law on the standard to show that you meet it). This waiver should be filed at the same time as she comes to apply for an immigrant visa.

      I hope this makes sense.

      Good luck!

      Comment


      • #4
        Would this be a k-3 situation? If so, we were told to complete a waiver and have it available if asked for but not to do anything with it unless the bar was actually placed on him. If it is a k-3 situation the 129f needs to be filed to MIssouri. Is there a better way than K-3 in this situation?

        Comment


        • #5
          The K3 classification is certainly a useful classification, but it does not apply to the situation where the I-130 has been approved (although the I-130 must be filed before the K3 Petition can be approved).

          The issuance of a K3 nonimmigrant visa permits a spouse of a U.S. citizen to come to the United States and adjust status here instead.

          The K3 is designed to avoid lengthy periods of separation that can be caused by (the sometimes lengthy) delays in the consular processing of immigrant visas.

          Comment


          • #6
            Thank you everyone for the info. My wife was undocumented and we fall in the 10 year bar. I am just trying to find out what to do next. Our appointment is supposed to come in the next three months and I don't want to go unprepared.

            lostinmex

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