Adjustment of Status issues when spouse EWI

[aneri]

1. check out if I-130 is still alive
2. if yes: file I-824 and ask for consular procesing
if no: file new I-130 indicating consular procesing
3. receive some papers from NVC and return to them (choice of agent, bio forms, afidavit of support)
4. interview in Mexico scheduled (based on I-130)
5. husband can leave for Mexico a few days before the interview to do the medical, (should find out how to get Mexican police report and ask for it in advance because it may take some time)
6. husband is interviewed at the consulate. Visa is denied because of overstay and 10 year bar
7. he will be instructed when and how to file a waiver. It is done at the consulate.
8. he files a waiver (it may be soon after the interview so everything should be prepared - hardship letter)
9. with this new pilot program, most waivers are approved the same day (in some countries takes years, so they should feel lucky)
10. if waiver is approved, husband gets IR-1 immigrant visa and can travel to the USA the same day
11. a few weeks after arrival, husband gets green card in the mail

USC spouse does not need to go to Mexico, but it may look better if she is present...

There is a poster here who just went through the interview in Mexico... do some search. Her topic was about the hardship letter.

[aneri]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Langford:
I don't think they disclosed that he EWI on his I-130; that's why it was approved. </div></BLOCKQUOTE>

I-130 is to establish the relationship between the petitioner and the beneficiary, and if the petitioner may file the petition (is USC or PR). I-130 would be denied only if the petitioner can't prove that he/she is related to the beneficiary as spouse, child, parent, or sibling and/or if the petitioner is not eligible to file the petition(Permanent resident filng for sister).

When a couple is legaly married (and there are no inidication that the marriage was entered only for the immigration benefits), I-130 is approvable.

After that comes the second part where the beneficiary has to prove that he/she is eligble to adjust status, get an immigrant visa etc.

Because of EWI, your friend can't do AOS. And because of illegal stay in the USA and bar, he will be denied an immigrant or non-immigrant visa at the consulate. Looks like he is eligible to file for a waiver.

Your friends should read about the waiver process in Mexico. It has a high approval rate and a special program where it can be decided (approved hopefuly) in a day. If everything goes well and documents are well prepared, he may be in Mexico only a short time (weeks?).

[Langford]

4now, Aneri thanks alot for addendum to your original posts. Iwas a bit confused. I spoke with the couple yesterday and the information was not well received. They (especially him) appeared very discouraged; she said he would have to go back to selling vegetables in Mexico (though he owns a house in Mexico). He can only read on a first grade level. No, there's nothing that would bar him except the EWI (no criminal background). The communication between their lawyer has not been good, apparently. She told me the when she called only the secretary would speak with them (lawyer too busy or unavailable) so she said she was going to go sit in his office until he saw her. I don't think they disclosed that he EWI on his I-130; that's why it was approved.

I don't really know what went on before with their lawyer, why they waited so long to follow up on it-- He should've explained their options and advised him to leave the country. I can only speculate--it seems they put all their eggs in one basket and were hoping the laws would be changed.

[Rough Neighbor]

Dear OP, let me recant my "last comment" promise. Aneri and 4now, I owe you an apology. I failed to acknowledge the fact that we meant the same thing. I sincerely apologize to the two of you now. For some reason it was just how I said it that the OP has finally absorbed what we meant.

[aneri]

Langford,

you were basicly given the same advice by me and 4now. But I see how it got confusing..

Some time people would use "adjustment of status" term also for consular processing. I believe that 4now referred to consular processing when she wrote "He has to apply for adjustment of status and be denied for the illegal entry", and even says "adjust status and come back"
To avoid mix up with AOS in USA, I use term "consular processing".

[4now]

Langford

Lol oh im so sorry.. 801 was a typo.I should have proofread. I will go back and correct my post as to not confuse anyone.

I think i explained myself and that you were just not understanding.. because you are confused. But it looks lilke you have the concept now. great


Most people go the route of K-3 and 601 waiver.

Again.. I suggest you seek step by step help at immigrate2us.net . Lot of cases like yours there and many have been approved.

I dont know why their lawyer has discouraged this filing. There have been lots of cases approved. if he does not have a criminal history, then it should be slam dunk. But it can be timely ordeal. some as little as 8 months .. some as long as 2 years. But there is no way .. i repeat no way around the not leaving the country and to comeback in a legal way. The 601 waiver is the most important document in this whole process. It is from this approval that he will overcome the 10yr bar and be able to adjust his status to get greencard based on marriage to usc. there is an entire section on 601 waiver preparation there also.

YOu didnt do anything wrong or say anything wrong langford. Most people are here to help. some people do not know what they are talking about, and will give erroneous advice and you have to be aware of that., and that is what I believe rought neighbor is trying to convey to you.

this is a public forum and you may ask anything that you please

Go visit that site.. theres no problem with those gals helping you. and pleas comeback and let us know when he gets approved.

Good Luck to them

[Langford]

"An AOS plus I-601 "cannot" be filed at the US Consulate, but rather, it's I-824 (if previously approved I-130 is still valid), NVC, then Consular Visa process (IR-1) with I-601, or I-129F (K-3) with I-601 is yet another option."

Finally, a clarification! I have all the information I need at this point, thank you to Rough Neighbor.

In case I haven't been clear,this couple is still represented by a lawyer though there are evidently communication issues. What I'm trying to ascertain is: are there any other options that might be available to them? There is a difference, you know! In retrospect, it seems like I was asking "should they do a) or b)?" But actually all I really want to know is the above.If I violated the forum rules in any way--apology is hereby given.Perhaps I should've left matters alone and not pursued a clarification.I was called on it and deservedly so-BTW the original advice given, i.e. that they should consult with their lawyer is the best advice after all.

Rough Neighbor...I owe you a debt of gratitude for that very small blurb of information-- which none the less has shed considerable light on the matter and adequately answers the question! Thanks alot.

[Rough Neighbor]

Once you posted something on a public forum, it's fair game for everyone.

But of course, I'll graciously grant your wish. This is going to be my last comment.

[Rough Neighbor]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Langford:
... I am getting conflicting legal advice on this board: one person (aneri) advises filing I-824 to move the petition to NVC; another (4now) advises filing form 801 (waiver) AND I-495: (concurrently or separate). Question: if he files I-495 does he have to wait for the denial or should he leave US immediately? (Aneri, what is your opinion of this?)... </div></BLOCKQUOTE>

Ah well...

[Rough Neighbor]

Just please allow me to straighten out the following:

1) This is a "discussion board" not a source of "legal advice" (refer to Terms of Service).

2) There are 30 days in April.

3) 245(i) not just 245.

4) I-485 not I-495.

5) I-601 not 801 (waiver).

6) An AOS plus I-601 "cannot" be filed at the US Consulate, but rather, it's I-824 (if previously approved I-130 is still valid), NVC, then Consular Visa process (IR-1) with I-601, or I-129F (K-3) with I-601 is yet another option.

Ok, go on discussing.

[4now]

Langford


It sounds like you are a bit confused in this process and because of this.. how can you help this couple?

There are lots of cases like this at

immigrate2us.net

There are many people that have husbands that were in this same situation and gotten their husband approved without paying a lawyer. follow their steps.. Spouse. etc are posters that have been thru the process.

YOu must understand the concept that an EWI cannot adjust status on american soil without returning to his home country first and get legal visa to come into usa. This person has a BAR for illegal entry. He has to apply for adjustment of status and be denied for the illegal entry. Once he is denied, then a 601 waiver must be filed to overcome the BAR. Once the waiver is approved... then he can adjust status and come back to america.

NO WAY AROUND THIS. period.

No new amnesty is in the works.. Not likely either, all this backlog is due to that last 245 amnesty.


The sooner he returns and they make arragngements, the sooner he will come back. Right now he is deportable if picked up and will be placed in detainment until he is removed.

[aneri]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Langford:
Filing waiver is risky, I'm curious why you recommend this? instead of waiting for 245 to pass? </div></BLOCKQUOTE>
That is the only option at the moment if he wants to legalize his status in the near future...
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">I do not know why lawyer filed I-130 in the first place and not I-129F?? </div></BLOCKQUOTE> One can't file I-129F without I-130. I-130 is the main document.
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Lawyer advises against I-495 because of bar rule. </div></BLOCKQUOTE> Somebody got it wrong. I-485 means a person will adjust status in the USA, while the bar starts only when one leaves the USA. He couldn't adjust status in the USA because he had NO status to adjust from.
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Question: what do you think the chances are congress will renew 245 in the future? </div></BLOCKQUOTE> Have no idea..

[Langford]

No petition filed before 4/31/2001, applicant entered EWI so "bar rule" applies. (six month bar is three years, one year is ten years--"permanent bar"). Applicants told lawyer he arrived US 2003. Filing waiver is risky, I'm curious why you recommend this? instead of waiting for 245 to pass? I do not know why lawyer filed I-130 in the first place and not I-129F?(Maybe he didn't know about it-OR-maybe HE DID advice client to leave country and he refused-I don't know). Lawyer advises against I-495 because of bar rule. Question: what do you think the chances are congress will renew 245 in the future? (I know you don't have a crystal ball, but anyhow)

[aneri]

1. Had any petition (family, employer) been filed on behalf of this guy before April 31, 2001?

2. So, I-130 has been approved for quite some time. Why they did not acted on it, sent I-824?

Looks like USCIS expected the husband adjust status in the USA because of their own mistake in the records, the answer on Q1 is yes, or EWI was not disclosed on I-130.

Approval of I-130 (for IR-1 visa, one gets green card immediately after entering the USA)) used to take years. So, many people have also chosen to file I-129F and go for K3 visa at the same time (immigrant enters as non-immigrant and has to adjust status in the USA). When one already has I-130 approved, it makes no sense to start K3 process since IR-1 visa (based on I-130) is much better option.

So, yes I would say they should file I-824 to move the petition to NVC which is a stop on the way to the consulate. However, 3 years have passed since the approval and, if nothing has been done in the meantime, USCIS may consider approved I-130 "dead" or expired. That would mean they would have to start the process all over again by filing I-130 (for IR-1 visa) and I-129F (optional) (for K3 visa).... Nowdays it takes about the same time to get the approval of I-130 as for I-129F.

The next step would be finding out where I-130 is and if it is still "alive". They may start by checking "case status" on USCIS web-side. Remember the info there is not always up to date...

Any idea why the lawyer did not advice them to go through the consular processing? Anything in his past that would bar him permanently to enter the USA once he leaves? too small chances that the waiver for illegal presence would be approved?

They need to know what they are getting into before they make the next step.

[Langford]

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Langford:
First off, She received the Notice of Action I-797 (dated Feb. 2004) which approves I-130 petition and sets aside a visa number for them. The Approval Notice is for "Husband or wife of U.S. Citizen, 201(b) INA" It says:

"The above petition has been approved. The petition indicates that the person for whom you are petitioning is in the United States and will apply for adjustment of status..." It further states:

"If the person for whom you are petitioning decides to apply for a visa outside the United States based on this petition, the petitioner should file form I-824 'Application for action on an approved application or petition' with this office to request that we send the petition to the Department of state national visa center NVC."

So...is filing the I-824 the next course of action to get a K-3 Visa? I presume he will have to wait outside the country until application is approved...

This is the info that is missing from your response (Aneri). Please advise how to proceed. Thanks in advance. </div></BLOCKQUOTE>