BorisStAlC

After living and working in the US for over six years, I got picked-up on a suspected DWI charge. I was then summarily deported back to Scotland in December of last year. I entered the US on the visa-waiver program in 1994, and never went back to Scotland.

My American fiance came over in January, and we got married in Glasgow. She has since returned to Colorado, and has hired an immigration attorney to begin our complicated paperwork. I will not bore you with how shattered I am after such an upheaval, but I would like to know how quickly anyone thinks I could be back into the US. The deportation official in Kansas City said I could be back in this December (I was officially given a ten-year ban), but could it be sooner?

The attorney has just filed the I-130 with the Nebraska Service Center, and I was wondering if any of you learned individuals have any experience with similar cases.

This has been the most horrendous experience of my life, and I am keen to return to some sense of normalcy with my wife...

Would the normal I-130 timeline mentioned be different for me?...or is it taken on a case by case basis?

I had a real Social Security Card, drivers' licence, and paid my taxes every year since I entered. I know it is not about being fair in deportation cases, but ruining lives is not a great job-description.

Angry in Glasgow

Alvena Ferreira

What will likely happen is this: you will eventuallly have an interview after the
I-130 is approved. At the interview, you will be denied the visa because of the
deportation/ban. then your wife will have to file an I-601 waiver of ineligibility,
and this will take (at the very least) a few months to process. I would advise having
this waiver form and documentation to support it ALL READY and with you at the
interview, just to shorten the time for the processing of the waiver. You can find
some tips on completing a waiver at this URL (this URl is for crimes waiver, but the
waiver form is the same and you will find some valuable info there):
http://www2.apex.net/users/thehydes/crimesframes.html

alvena

BorisStAlC wrote:
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Toni B

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Did you think you'd never get caught? If you're back here in December, I'd love to
know how. You need a waiver of deportation as well as the spousal visa and you have
to prove hardship to the US citizen as part of the waiver approval process. And
please, don't cry victim on this one. You did this to yourself.

billypilgrim

Let me know how it goes. I have a friend in a similar situation.

Keep in mind that from what I've heard (and I will be the first to admit I have no
direct experience in this) you will probably have to file the "hardship waiver" (as
someone else mentioned). This does not, to my understanding, have to show that the US
citizen will be helpless without you, but rather has to show that moving to your
country would be a big hardship on her. If she has a child, cares for an aging
parent, or something of that nature your prospects are probably better.

Question: how were you legally working on a visa waiver? Or was there a change of
status somewhere along the way that wasn't mentioned in the original post?

I wish you luck. Beth

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Stuart I. Folinsky A

I'm not sure if my last post showed up, so I am reposting it.

Hi:

I am an experienced immigration lawyer who has been practicing for 25 years. I'm
sorry to say, that I would hesitate to waste your time and money in even trying to
come back to the United States.

The I-130 is simply a petition by your American Citizen wife to have you classified
as the alien spouse of an a U.S. Citizen. Although it is a necessary prerequisite to
a green card, it is no guarantee.

The problem will arise when you go to get an immigrant visa -- you are subjected to
not just one, but two 10 year bars to return to the United States. The first one is
that your summary removal as an overstayed visa waiver entrant is a deportation. That
is a 10 year bar. You can file for a waiver with the INS -- but such applications are
not even at the bottom of the priority list , because they are given no priority
whatsoever.

In addition, there is a 10 year bar for being illegally in the United States for more
than one year after expiration of your authorized stay in the United States. This too
also requires a waiver. However, unlike the waiver of prior deportation, this waiver
can't even be filed until you go in for your immigrant visa and are refused. Then
that waiver requires that you show extreme and unusual hardship to your SPOUSE [not
you] if she is either required to be separated from you if she is in the US or she is
required to live in Scotland with you in order to stay with you. This is hard to do.

Sorry for the bad news -- but the US immigration law is quite draconian on this one.
You might want to have your wife contact her congressman and Senators to see about a
"private bill" in Congress -- but such special legislation is hard to come by.

Good luck.

Stuart I. Folinsky Attorney at Law Certified Specialist -- Immigration & Nationality
Law California Bar Board of Legal Specialization

Michael E. Piston

While Stuart is absolutely right (as always) in his legal analysis, nevertheless I
wouldn't necessarily agree with his conclusion that even applying is hopeless.

True, I-212 deportation waivers are not priorities with the INS but, at least in the
Midwest, they don't take forever either. In any event, according to my reading of the
regulations the I-212 must be filed with the consulate handling his immigrant visa
application, which will in turn transfer to the corresponding INS overseas post for
adjudication, which I believe is in London. I don't know what the processing times
for I-212s are there, but I certainly wouldn't assume they are so long as to make an
application futile.

As far as the 10 year bar goes, I don't think the situation is necessarily hopeless
(although it might ultimately prove to be). Yes, extreme hardship is hard to
establish if INS wants to hold you to the letter of law (tiny nitpicking correction -
the hardship only has to be "extreme" - not "unusual"). Certainly if one looks at the
appeals of waiver denials recently decided by the INS Administrative Appeals Office,
it looks like almost nothing qualifies. Yet in practice waivers are getting approved,
sometimes in surprising circumstances. For example, I just recently had a fraud
waiver approved for the spouse of a U.S. citizen in Romania under facts which were
very similar to yours - newly married to a U.S. citizen, who herself was born and
raised in Romania. The standard for a fraud waiver is the same - extrmeme hardship to
U.S. citizen parent or spouse. Nevertheless the waiver was granted in little over a
month by the INS office in Vienna. Further, it is reported that the U.S. consulate in
Ciudad Juarez is approving some 95% of all 10 year bar waivers. If Romanians and
Mexicans are getting waivers that easily, its seems reasonable to assume that a Scot
wouldn't at least have a fighting chance. Nor is a single DUI conviction sufficiently
damning as to seriously harm his chances. My advice is that he gives it a shot.
Michael E. Piston

billypilgrim

I'd like to add that I've had personal correspondence from people who had
hardship waivers approved for something as simple as the USC having school aged
children or aging parents. It may be important to note that these were in
relation to cases involving the non-citizen having a criminal record, NOT in
relation to deportation cases.

I would always agree that nothing is helpless. When you have an individual making a
decision, there is always room for interpretation of the laws.

Still curious as to how the original poster managed to get work authorization and no
one noticed he was not a legal resident.

Beth

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Alvena Ferreira

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I too have seen posts from those who got the waivers for very simple reasons, such as
children or aging parents.

There are many things that can be used in preparing a waiver, for example: -children
who need schooling in the US due to quality of school, inabilty to speak language in
foreign country, etc. -children who cannot leave the US due to previous spouse's not
granting immigration consent for the children. -children who would have to stay
behind in the US that you would not be able to visit frequently, and the relationship
of the parent with the children would be, in essence, destroyed. (further splitting
the family unit) -inability to speak the language of the foreign country. -lack of
employment of the US spouse in the foreign country, thus creating financial hardship.
-need to care for aging parents or relatives in the US. -ownership of properties in
the US that you do not want to sell or cannot sell for specific reasons, and for
which you have no other alternatives for monitoring the property and its usage. -your
preference that you want to live in the US because it is your native country and you
are a citizen of that country. -excessive cost involved in moving your household
members and goods to the foreign country, including plane fares, transport of goods,
and replacement of items that cannot be moved. -financial loss due to the separation.
(two households having to be sustained) -get character reference letters from anyone
who can provide these for the immigrant fiance/spouse. -get letters from doctors,
clergymen, and the like, regarding emotional suffering that the US fiance/spouse is
experiencing as a result of the separation. -Any letters submitted are best notarized
and should include the name, address, social security number, date and place of birth
of the person writing the letter. -Below are cases which go into defining "extreme
hardship", for more information on what kinds of things may be helpfulin defining
"hardship": http://www.usdoj.gov/eoir/efoia/bia/...dfDEC/3298.pdf
http://www.usdoj.gov/eoir/efoia/bia/...ended/3380.pdf http://-
www.ins.usdoj.gov/cgi-bin/folioisa.dll/interim.nfo/query=[JUMP:'int3280']/doc/{@1}/h-
its_only?firsthit http://www.ins.usdoj.gov/cgi-bin/fol...rim.nfo/query=[J-
UMP:'int3281']/doc/{@1}/hits_only?firsthit

alvena

BorisStAlC

To continue from my first post:

I had been in the US on three different J-1 visas in the five years before I entered in 1994 (two work visas and a one year student exchange visa). In 1991, I was in Lincoln, Nebraska to work before my student visa was about to commence at Nebraska Wesleyan University. I applied, using my five-month J-1 work visa to get a social security number at the Lincoln office. They submitted it to Washington, and it came back as a 'real' social security card (i.e. one with no "valid from....until...."). It was using this card that I was able to work unhindered, and I was able to obtain my drivers' licence, etc... .

I appreciate the posts from everyone. They certainly run the gamut from hopeless to encouraging. I refuse to accept that it is hopeless. The circumstances to the incident are very unfortunate, but I recognise the fact that the INS themselves must stick to the laws as prescribed. I am certainly not fishing for sympathy, since I do know that this kind of business is a mercenary one. Nobody really knows or cares about the mental/emotional strain involved, nor would I expect them to.

As to the chap who said that 'surely I did not think that I would not get caught', I know that unless you present yourself to them, the INS, in my case, would not have caught me. The agent who escorted me to the Washington airport confessed, after a few drinks, that they will not catch you. It was not satisfying to know that the entire bar staff were probably candidates for INS examination, but he shook-off examining them. Yes, I was caught. Yes, I was deported. I will be back in soon though...

Thanks again.

billypilgrim

Alvena,

This is great information. I'm saving the links. Shawn and I are hoping with crossed
fingers that his one arrest many moons ago will not cause a problem (and we've looked
carefully into it, and if the interviewer follows the letter of INS guidelines, it
should not, but you never know). But it's good to be prepared.

It would be a but traumatic to have to go to the INS with some of the very personal
info that would be needed to get a waiver (since I have no children, and my parents
are not exactly "aging"). But we're willing to do whatever it takes.

Beth

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