mbs79

I got a tourist visa denial based on 212(a)(9)(B)(ii) even though my status in the US got adjusted. I had a GC valid until 09/10 that I gave back.

It's quite a complicated story:

I'm a Polish citizen married to an US citizen (UK born). We both live in London, but we used to live in the US (I was there 7 years, he was there 17 years).

I entered the US on a tourist visa in 2002 which I overstayed (now it sounds like this mistake from early 20ties will drag behind me forever...). My status got adjusted once I got married there to my first husband in 2008 and I received my green card. Unfortunately he turned out to be an alcoholic and we got divorced.

In the meantime I met my current husband. After a while we decided to move back to Europe to be closer to our families and we got married here. I surrounded my GC right after moving to London, before its expiration date. Now I would like to join my hubby on a business trip and visit some friends in the US, but my tourist visa got denied.

212(a)(9)(B)(ii) says:

Sec. 212. [8 U.S.C. 1182]

(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(9) 12 ALIENS PREVISOUSLY Removed.

(B) 13 ALIENS UNLAWFULLY PRESENT.-

(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 authorised by the Attorney General or is present in the United States without being admitted or paroled.

I think the Att Gen authorised me to stay in the US until the expiration of my GC and the previous "sins" were forgiven. Should I apply for a waiver of ineligibility? I am not to keen on making another appointment with the US Embassy in London to be honest. I feel I am being treated there as a criminal and do not appreciate it. I am also not desperate to go to the US right now, but could see myself willing to visit friends with my husband in the future (before 2020, when the ban would expire). Should I just drop it now and try to use a Visa Waiver Program once I become a British citizen? According to the paperwork from the embassy my ineligibility is not permanent...

In my humble opinion the US immigration does not make any sense whatsoever. I am not eligible to travel to the US as a visitor, but if I would like to move there permanently, my husband can sponsor me without any problems. The issue is we do not want to live in the US, we just want to meet with friends now and then and go there on holidays.

I would appreciate any advice you could give me. Thank you!

dreamercon

You can't visit the US on the visa waiver unless you hold a passport from a visa waiver country, and Poland is not one of them. You say:

"I am not eligible to travel to the US as a visitor, but if I would like to move there permanently, my husband can sponsor me without any problems."

But that is false - if you are inadmissible for a prior overstay, you are inadmissible whether you apply for a non-immigrant visa or an immigrant visa.

mbs79

Yes you are right. However, I will become a British citizen in 3 years, I will hold the British passport and be eligible for the visa waiver program.

Also, I do not believe you are correct on the immigrant visa. Even if you overstayed your previous visitor visa, you are eligible to get permanent residency in the US based on marriage. I know it for fact, because I got one. You just apply for an Adjustment of Status while applying for the GC, which is granted by the Attorney General based on paragraph 245 of the Immigration and Nationality Act.

Even the embassy officer has told me that my husband can apply for an immigrant visa for me.

The fact my current husband is an American is actually almost accidental (he holds two passports). I do not want to go through the whole immigration/interviewing hassle just to go and visit. I do not want or need the green card and if you get the immigrant visa you have to follow it through and apply for permanent residency.

Duncan Roberts

I think it's more that you are eligible to apply, the people who handle your application will determine if you are eligible for the visa, or AOS, or whatever it is and then when you land the immigration officer will determine if you are eligible to use it and enter the US at that time.

dreamercon

* The ban on overstays comes into effect only after you leave the US. You are eligible to adjust status as an immediate relative if you don't leave - but you left, so the ban kicked in. Consular officers often give incorrect information and have no duty to tell you what's right.

* If you are married to a British citizen and intend to apply for citizenship in three years, you need to make a charged application under the immigration rules for leave to remain despite the fact that you are not required to obtain leave to remain. Only then can you obtain permanent residence in two instead of five years, which is a prerequisite for applying for british citizenship.

* If you are inadmissible for prior overstay when applying for a US visa, you are still inadmissible under the visa waiver.

ian-mstm

Be aware that the officer who issues your visa and the officer who allows you to enter the US do NOT work for the same agency - and one does not answer to the other. The officer at the border has the power to allow you to enter the US or not... at his sole discretion - whether you have a valid visa or not.

Ian

mbs79

@Dreamercon:

Thanks for your advice. Another question though:

How come the ban kicked in even though my status has been already adjusted back in the US? I talked to my immigration attorney in the US last year and she confirmed that once I get the green card (which I did) my overstay is forgiven and even after leaving the country should not be taken into consideration. She also confirmed that the same rules will apply if I surrender my green card.

I did not want to be in a relationship only to keep my status, I followed all the rules and now I am getting punished for it.

dreamercon

This is a matter of statutory interpretation. If you read INA 212(a)(9)(B)(ii) it exempts permanent residents from the three/ten year bar. Once you lost permanent residence status, the language of the statute makes it, on the face of it, apply to cases like yours. Of course you can make an argument that your case is different and the statute did not intend to cover cases such as yours - usually though, when the language of a statute is unambiguous, a government official is bound to follow it.

mbs79

So what would you recommend in my case?

If I would like to argue the interpretation, where do I start? US Embassy?

I was trying to avoid applying for an immigrant visa/permanent residency through my husband since I do not really need it. I also know that returning to the US once a year on your green card without being a permanent resident there may not be sufficient and you may be denied an entry with your GC confiscated. I would like to save myself a hassle like that. Life is stressful enough without it

It's funny, I can see us having kids within the next 10 years who would be American citizens and I can see myself not being able to go on a trip to visit friends in the US with them and my husband. I feel like I would have committed a murder Living without visiting in the US is not the end of the world though

I would appreciate any advice you could give me Dreamercon since it sound you know what you are talking about. Many thanks!

Bill_S

Lawyer. A good one.

mbs79

I have started looking for one already
Any good immigration lawyers worthwhile recommending in London?

Ray

one of many
http://www.usvisalawgroup.com/