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Will we be required to file a waiver???

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  • Will we be required to file a waiver???



    My now wife entered into the US on a K1 Visa, we married within 90 days but did not file an AOS. We were told 6 months later that she was now in illegal status and was subject to deportation. To avoid deportation she returned to Mexico more than 180 days later. We have reapplied for an I-130 and a K3. Our K3 appointment will be in Ciudad Juarez, within a couple of months, and our I-130 has just been approved roughly 3 weeks after the K3 approval. So here is the question. My wife was in illegal status for more than 180 days, however it was never recorded by INS, she wasn't deported. She legally entered to begin with and she is legally married to me an US citizen. Will the decision of the interviewing agent during the K3 interview, be based on the merits of the current petition or will our previous K1 and her unrecorded overstay be a factor? Will she need a waiver, even though she was never deported? Will the current petition be the sole interest of the interviewer? We also have 2 children involved, we are the biological parents of both, they are also US citizens. We have 8 years of history and 5 years of marriage. The big question is, will we most likely need a waiver?

    SEE THIS BELOW AND TELL ME IF IT MEANS SOMETHING (THis is a small part that refers to family unity, whatever that implies):

    INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY

    ( 13/ ALIENS UNLAWFULLY PRESENT.-


    (i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-


    (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235((1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or


    (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.


    (ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.


    (iii) Exceptions.-


    (I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).


    (II) Asylees.-No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.


    (III) Family unity.-No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 14/ shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

  • #2


    My now wife entered into the US on a K1 Visa, we married within 90 days but did not file an AOS. We were told 6 months later that she was now in illegal status and was subject to deportation. To avoid deportation she returned to Mexico more than 180 days later. We have reapplied for an I-130 and a K3. Our K3 appointment will be in Ciudad Juarez, within a couple of months, and our I-130 has just been approved roughly 3 weeks after the K3 approval. So here is the question. My wife was in illegal status for more than 180 days, however it was never recorded by INS, she wasn't deported. She legally entered to begin with and she is legally married to me an US citizen. Will the decision of the interviewing agent during the K3 interview, be based on the merits of the current petition or will our previous K1 and her unrecorded overstay be a factor? Will she need a waiver, even though she was never deported? Will the current petition be the sole interest of the interviewer? We also have 2 children involved, we are the biological parents of both, they are also US citizens. We have 8 years of history and 5 years of marriage. The big question is, will we most likely need a waiver?

    SEE THIS BELOW AND TELL ME IF IT MEANS SOMETHING (THis is a small part that refers to family unity, whatever that implies):

    INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY

    ( 13/ ALIENS UNLAWFULLY PRESENT.-


    (i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-


    (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235((1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or


    (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.


    (ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.


    (iii) Exceptions.-


    (I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).


    (II) Asylees.-No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.


    (III) Family unity.-No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 14/ shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

    Comment


    • #3
      She should never have left the country. When you realized she had not filed her AOS, you should have done so immediately. It would have been forgiven.

      Comment

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