Just Jenney

I just came across this news article on Yahoo! News: Family separated by immigration policies

BUT... here's the thing. The article didn't accurately explain what actually happened. According to the family's website, BringAkikoHome.com, THIS is what really happened (emphasis added):


So, it wasn't like she showed up in Hawaii on the VWP, got married, and then adjusted status (which still would have been in violation of the VWP, but whatever) -- which is what the article stated. Instead, she showed up in Hawaii on the VWP, got married, returned to Japan, got her K1 fiancee visa, returned to the US on the K1 fiancee visa as a married woman and THEN applied to adjust status.

The couple is saying the US government misled them in three ways: 1) the K1 processing took longer than the 3-4 months that was quoted to them; 2) they simply followed the US official's instructions to marry, then get the K1 fiancee visa, then reenter the US and AOS; and 3) that after her AOS was denied, she would have to return to Japan, apply for and obtain a spousal visa and then "reimmigrate" (their term) to the US.

Personally, I think they bear much more responsibility in this than they're letting on.

Regarding the "misleading" K1 processing timeline -- I don't know about back in 1998, but in 2002 when Mark and I were going through the K1 process, the K1 forms and instructions -- and the interviewing officer who granted Mark his visa -- made it VERY clear not to make any final arrangements (like selling one's home, leaving one's job, making unchangeable wedding preparations) until AFTER the K1 visa was approved and in hand. This couple didn't do that. On their website they explain that they didn't postpone their wedding to avoid "disrupting the lives of guests in two countries [and] a huge financial loss". I also remember that any timelines given were only ESTIMATES and that one should really only move forward with any plans once everything's a done deal. I know there are some 1998 K1 graduates here (Rete? Ian?) so hopefully one of them can confirm whether those warnings were around back then.

Regarding the US official's advice to marry and THEN enter the US on the K1 fiancee visa and AOS -- What about the fact that at her K1 visa interview, they would have explained and/or reminded her that she had to marry within 90 days of entry? Why didn't she say, "Oh, we actually got married last month" when they brought that up? The interview would have HAD to have taken place AFTER their wedding, because if she had already had the interview and was simply waiting for the visa to be issued, then she wouldn't have had her passport to use to go to Hawaii to get married.

Regarding the 10-year ban she received after returning to Japan in 2005 to apply for a spousal visa -- By this point, according to their website, they had spent "years and thousands of dollars trying to rectify the mess." In their "Media Press Kit," they've give their complete timeline and mention that they've hired and worked with at least 3 immigration attorneys. Why didn't any of their attorneys explain that once she stepped foot outside the US, she would be banned for 10 years?

On a side note, the couple's website says that since returning to Japan, she has been "stripped of her passport and cannot go anywhere." What does that have to do with the US? The US cannot strip a Japanese citizen of their Japanese passport, so I don't know what that's all about.

I feel sorry for this family, but only to a point, you know? I'm curious to hear what other people think about this.

~ Jenney

ps. If you're interested, you can get a free "Bring Akiko Home" bumper sticker from their website.

Elvira

Jenney - you have been living and breathing immigration stuff on a daily basis for years now.

I can completely understand that most people would find US immigration completely overwhelming at first.

I'm sure most USCs are convinced that bringing a foreign spouse to the US is a straightforward process. They no doubt also believe that USCIS and consulate officials will give accurate and reliable advice.

It seems that somewhere along the lines these poor folks misunderstood something they were told and did not do the required research, and now a whole family is in deep doo-doo.

There should be a straightforward way of fixing such issues, but unfortunately there isn't.

ian-mstm

To be honest, I can't remember if I was given any warnings... but since my K-1 visa was issued the same day as the interview, perhaps it wasn't necessary. Now, this was in Canada... and in 1998 it *did* take us 4 months (almost to the day) from the day Sheila submitted the I-129F to the day I got the visa in my passport. For Japan at the same point in time... well, who knows?

Still, I agree with you. The couple themselves are as much (if not more) to blame for their predicament as the government.

Ian

Rete

We applied in March of 1998 and it took all of 3 months to process and complete also using the US Consulate in Montreal.

The government cannot be held accountable for a process taking longer than estimated. It is after all only an estimate.

As with you, I, too, feel that the couple are the ones that bear the blunt of responsibility. One would assume that the USC, at the very least, can read and comprehend the English language. Also since they were wealthy enough to afford a big wedding in Hawaii, they also appear to have been able to afford an immigration attorney if they were unable to comprehend the instructions and rules of the visa they applied for.

As is the fact that back in 1998 after the wedding I believe it was possible for the USC to travel to Japan and file at the US consulate for his wife's Immediate Relative Visa.

Yes, Americans, much like others worldwide, do not know the full and complicated issues involved in the immigration process of their country.

It is also the fault of the media reporting these stories for printing sympathy stories when they have failed to get all the facts and print the story in a manner that provides an accurate accounting of the process from both sides. They could very well come here or consulted with an immigration specialist to find out exactly what the procedure was before reporting a lopsided rendering.

Elvira

Journalists checking their facts - whatever next...

Particularly if instead they can just publish an easy tear-jerk story!

Rete

As for warning not to plan your wedding before the visa was issued, no that warning was not given in 1998. In fact we happily planned our wedding for September 1998 and when we applied for the K-1 in March 1998. While it was an intimate wedding with only 44 guests, it was a sit down three course dinner with music, dancing, cocktail hour. We didn't send out invitations, however, until we have the visa in hand.

Rete

There is a straightforward way of fixing it. Her husband will now have to do it the proper way and apply for her I-130 stateside. At the same time he/she will also file for a waiver on the ten year ban. Since she has been living in the US from 1998 til 2005, I'm sure he will be more than able to show hardship at the loss of his wife. In all likelihood it will be approved.

From the brief synposis that Jenney posted it is unclear if she was sent before an immigration judge. If so, she had the opportunity at that time to have the denied overturned or have the judge adjudicate a new I-130/I-485.

They had attorneys so why didn't the attorneys handle this correctly?

Elvira

The weird bit about this whole story is their claim that she was instructed to travel to Japan in January of this year - to pick up her visa.

And they had an immigration attorney advising them - WTF?

Just Jenney

You're right -- I have been living and breathing immigration stuff for years now. But so has this couple, right?

According to their timeline, they hired their first immigration attorney in October 1998, two months before they filed for AOS. What happened during discussions with their attorney? What happened between when they hired the attorney and filed for AOS? And what happened over the next 15 months before they had their AOS interview in March 2000?

How is it possible that over those 18 months, it NEVER came up, not even in passing, that they had already married prior to her coming to the US on a K1 visa?

When they were completing the I-485 form, how could they have indicated that she was applying for AOS because "[she] entered as a K-1 fiance(e) of a United States citizen whom [she] married within 90 days of entry" and not think, "Hmm, that's not what she did -- this might be a problem"? How could it be that they didn't pick up on that AND their attorney didn't pick up on that?

It seems to me that there were hints early on indicating that they hadn't done things correctly that they and/or their attorney should have picked up on. They had time to rectify things well before it got to the stage where she risked being deported and/or banned from the US.

~ Jenney

Rete

From the story:

The Campbells say that when Akiko's fiancee visa didn't arrive before their planned wedding in Hawaii in June 1998, they were told by an official at the U.S. Embassy in Tokyo to go ahead and get married and apply to change her status after she was settled in the United States.

++++++++++++++++++

Nowhere does it say that she was told to go back to Japan, obtain the K-1 and return to the US. What they were told is basically what most people calling USCIS or the US Consulate is told (regardless of it being fraudulent to enter the US for the express purpose of marriage and remaining to adjust status).

+++++++++++++++++++++++++++

"
Campbells have been working with lawyers and filing unsuccessful appeals since then. In 2005, they got a letter from the U.S. Department of Justice saying their visa petition was approved. But Akiko would have to return to the U.S. Embassy in Tokyo to get it."

++++++++++++++++++++++

More likely then not, they did not file the I-130 and I-485 together and they did not realize that they could have requested AOS here in the US thus the reason for the return to the US Consulate

Elvira

"Campbells have been working with lawyers and filing unsuccessful appeals since then. In 2005, they got a letter from the U.S.
Department of Justice saying their visa petition was approved. But Akiko would have to return to the U.S. Embassy in Tokyo to get it.

Akiko packed up her two sons for a visit with family in Japan. But when she went to the embassy, the visa was flatly denied, and she was told she couldn't go back home. The couple believes they were deliberately misled by the government to get her out of the country."

Rete

I edited my post to include this. See above.

Just Jenney

If you look at their "Media Press Kit" (PDF) they include a full timeline on page 2. When her AOS was denied, they filed a waiver; it was denied. They filed two appeals; both were denied. In January 2002, they "filed a motion" (to reopen? it doesn't say), which was denied the next month.

They did something else in early 2002 but I can't figure out what; something to do with "paperwork from NVC". In late 2004 they refiled AOS/EAD as well as filed a I-130 petition. A year later the I-130 was approved and she went to Japan for her visa interview. In February 2007 her spousal visa application was denied and she incurred the 10-year ban. They filed the hardship waiver that same month.

So, bottom line is, she never went before an immigration judge. They just kept filing appeals and motions and new petitions/applications, and once the I-130 was approved they assumed (again) that everything was a done deal, she went to Japan and that was that.

Why none of their attorneys seemed to advise them of the ramifications of her leaving the country after such a long overstay is beyond me. Especially when that sort of information is readily available and discussed on this newsgroup and others like it all the time.

~ Jenney

ian-mstm

I think this bit here is the crux of the issue. It seems that they adjusted based on the fiancee visa that she subsequently received and not, as perhaps the official was intimating, that they file an I-130/I-485 as they were now married. They either didn't listen properly or didn't care to spend another $100 or so (whatever the I-130 filing fee was in 1998) when she already had a visa and she was already in the US.

Ian

Just Jenney

But would it matter, since she entered the US on a K1 fiancee visa when she was already married? As a married person she wasn't eligible for the K1 to begin with. I wouldn't go so far as saying that she committed "fraud" when she used the K1 to enter the country, but she did use a visa which she was ineligible to use anyway. I just don't understand how it never came up in discussions with the US consulate during her K1 visa interview, or in later discussions with the attorney, that she was married BEFORE she got her K1 visa.

~ Jenney