Ossian

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A relative of mine is a United States citizen who married an Irish citizen in
the United States. She then applied for the status of an immediate relative of a
US citizen.

However, they went to Ireland over the holidays to visit her relatives, WITHOUT her
filing for an advance parole document, which according to all sources I can find,
constitutes an abandonment of status application. To put it as briefly as possible,
she has been refused re-entry to the country, and there is a worse twist.

The INS has claimed or is claiming that due to this, this constitutes her having
stayed months past her visa, even though while she was in the country, it was legal.
I am not aware of this being retroactive and do not believe she was ever in violation
of the law while within the United States, but that she has merely effectively
abandoned her petition. The threat from a representative of INS is that she could be
barred from entering the country for as long a period as ten years.

This has just happened recently and I am basing this on the little I have been able
to dig up since I heard about this nightmare this morning. Does anyone have any
advice on what to do, or at least what NOT to do to make things any worse?

In seeking competent immigration counsel (which should have been done before any of
this occurred, but that's water under the bridge), what qualities are best to seek?
What kind of fees are appropriate for advice and is it better to seek immigration
counsel in Ireland or in the United States, or preferably does anyone know of a firm
with offices in both countries? Are there any law offices which can provide brief
consultation or advice on an hourly basis for handling such a matter pro se if no
hearings or litigation is involved?

Alternately, has anyone else ever resolved a situation like this reasonably and
without hideous expenditure and Kafkaesque procedure?

Please post any and all advice to this newsgroup. While I do not expect an answer to
every one of these questions, anything from anyone is welcome, including URLs, names
and contact information for low-cost legal assistance, and personal experiences.

Thank you.

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Jonathan_atc

Never, I repeat, NEVER use cryptographic digital signatures in USENET! =20

    >
Steen's Visa Pages http://www.mindspring.com/~docsteen/...o/visainfo.htm
Newsgroup FAQ http://www.k1faq.com Immigration and Naturalization Service
http://www.ins.usdoj.gov {I am not a lawyer and this is not legal advice. For
reliable legal advice, please consult with a professional immigration attorney.}

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citizen
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relatives,
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application.
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her
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Jonathan_atc

All this really means is that this person can no longer enter on their = K-1 or any
other visa and must get a Spousal Visa. Not so hard to get. = Do some research on
I-130 in the pages below.

Good luck. --=20 Jonathan (Who wonders why there is always someone who thinks AP does
    >
http://clik.to/getk1 Doc Steen's Visa Pages
http://www.mindspring.com/~docsteen/...o/visainfo.htm Newsgroup FAQ
http://www.k1faq.com Immigration and Naturalization Service http://www.ins.usdoj.gov
{I am not a lawyer and this is not legal advice. For reliable legal advice, please
consult with a professional immigration attorney.}

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citizen
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relatives,
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application.
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her
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Andy Platt

It's not quite that simple Jonathan. If they are ruled to be subject to the 10 year
ban that applies to spousal visas too and a waiver would be needed.

Unfortunately, it looks like the INS (or perhaps it's the DoS) is correct. The law
looks to be an ass in this area. Looking at Sec. 212. [8 U.S.C.
1182] of the INA (you can find it at
http://www.ins.usdoj.gov/lpBin/lpext...b-1060/slb-183
1183/slb-1844?f=templates&fn=document-frame.htm#slb-act212) we find:

"(B) 13/ ALIENS UNLAWFULLY PRESENT.-

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

(ii) 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(b)(1) or section 240, and again seeks admission within 3 years of
the date of such alien's departure or removal, or

(iii)j 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.

(iv) 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.

.. ..

(v) Tolling for good cause.-In the case of an alien who-

(vi) has been lawfully admitted or paroled into the United States,

(vii) has filed a nonfrivolous application for a change or extension of status
before the date of expiration of the period of stay authorized by the Attorney
General, and

(viii) has not been employed without authorization in the United States before or
during the pendency of such application,the calculation of the period of time
specified in clause (i)(I) shall be tolled during the pendency of such
application, but not to exceed 120 days. "

Now this is just ridiculous because it says that you can have an extra 120 days to
adjust status which means that you would start to be subject to the 3 year ban at
day 390 after entering on a visa waiver. The vast majority of offices are slower
than that!

Of course, I'm not a lawyer and there may be other interpretations of legal
presence. I would advise the poster to locate an immigration lawyer who can at least
assist with the filing of a waiver if it comes to that. I would also have the US
citizen contact their representatives immigration liasion office to see if there's
anything they can do. One other thing - an application for humanitarian parole might
be possible.

Andy.

--
I'm not really here - it's just your warped imagination.

All this really means is that this person can no longer enter on their K-1 or any
other visa and must get a Spousal Visa. Not so hard to get. Do some research on I-130
in the pages below.

Good luck.
--
Jonathan (Who wonders why there is always someone who thinks AP does not apply to
    >
Visa Pages http://www.mindspring.com/~docsteen/...o/visainfo.htm Newsgroup FAQ
http://www.k1faq.com Immigration and Naturalization Service http://www.ins.usdoj.gov
{I am not a lawyer and this is not legal advice. For reliable legal advice, please
consult with a professional immigration attorney.}

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Alvena Ferreira

Ossian wrote:
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WHAT EXACTLY was filed? If all they filed was an I-130 petition, she received NO
status from that petition, and would ONLY have legal status IF an I-485 adjustment of
status was also filed at the same time or after the I-130, with the local INS office.
An I-130 petition in and of itself gives NO STATUS, only an adjustment of status via
I-485 would do that.

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That is correct, if she left after filing I-485 AOS and withOUT having advance
parole, then her AOS request is considered abandoned.

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She was only legal in the US IF she filed I-485 along with or after the I-130
petiton, and otherwise was out of status when her visitor status expired. If she was
more than 179 days out of status from the visitor entry at the time she filed the
I-485, then having advance parole would not have helped, as the ban starts at 179
days out of status, EVEN IF the out of status time is followed by an I-485 adjustment
of status form being filed.

Alvena
-----------------------
Doc Steen Site: http://www.mindspring.com/~docsteen/...o/visainfo.htm
=========================================
I am not a lawyer and this is not immigration advice. This is my personal opinion,
posted for the purpose of discussion only. Locate an immigration attorney in your
area at: http://www.aila.org
=========================================

Rete

Further to Andy's and Alvena's posts and discounting Jonathan's altogether, you can find an immigration attorney through the referral services of the American Immigration Law Association. Go to: http://www.aila.com

They will ask you to input where you live and a brief description of the problem. In turn they will supply you with several names of immigration attorneys in your area where you can have a consultation (1/2 hour) for $75.

Rita

Rete

oops

http://www.aila.org

Michael Voight

Ossian wrote:

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Make sense to me.... It is the law.

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Still, correct...

I am not aware of this being retroactive and do
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At the time you filed for AOS, how long had she been in the country?
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Before this happened, legal counsel wasn't needed. The topic is discussed here quite
often. Hire an attorney, in the US, and then proceed to process a spousal visa from
the US. She may be able to get a K-3. If that is denied due to the visa overstay,
then you file the waiver.

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I don't think it is usually resolved "reasonably"

Michael

Michael Voight

Jonathan_ATC wrote:
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Unless, of course, there was an overstay problem prior to filing the AOS..

Michael