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-   -   I-130 for spouse who was barred for 5 years (https://britishexpats.com/forum/usa-57/i-130-spouse-who-barred-5-years-108578/)

drvic May 27th 2002 1:24 pm

I-130 for spouse who was barred for 5 years
 
I'm a U.S. Citizen. I want to petition for my wife. We have been married 3 years. The last time my wife tried to visit me in U.S. on her tourist visa she was denied entry AND she was "barred" for 5 years because she had overstayed her tourist visa for two months. Is this going to complicate the process? If so, what do I have to do and when? Should we get an attorney? Does my wife still qualify for a K-3? If anyone has been in this situation or has any information about this we sure would appreciate it. THANKS!

Alvena Ferreira May 27th 2002 7:20 pm

Re: I-130 for spouse who was barred for 5 years
 
drvic wrote:
    > I'm a U.S. Citizen. I want to petition for my wife. We have been married 3 years.
    > The last time my wife tried to visit me in U.S. on her tourist visa she was denied
    > entry AND she was "barred" for 5 years because she had overstayed her tourist visa
    > for two months. Is this going to complicate the process? If so, what do I have to
    > do and when? Should we get an attorney? Does my wife still qualify for a K-3? If
    > anyone has been in this situation or has any information about this we sure would
    > appreciate it. THANKS!
    >
That is unusual, to have a bar for a 60-day overstay. Generally, they don't do this
(however the officer at the port of entry has the ability to do so, even for life, so
it could have been worse).

I *think* this will be waiverable. If it is, you will have to file a form 601 waiver
for this. It would speed things along for you to go ahead and have the waiver ready
for her to submit at the interview when they tell her that she is denied because of
the ban. There is info in the "criminal record" section of the doc steen site (same
waiver, different reason, but the info there still applies).

The goal of what you are doing is to show that YOU, the US citizen, are suffering
HARDSHIP, due to not having your wife with you here in the US. If YOU cannot leave
the US and live in her country, that is a very good reason, by the way. Things such
as jobs, children from former marriages, stuff like that does count. So the more you
can do to verify that hardship, the better. Read the info on Doc steen. You may have
a better chance with an attorney. That's up to you. Some have filed them without
attorneys, but if you don't feel like you have a reasonable knowledge of how to do
this, then by all means, use an attorney.

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,
gleaned from the previous postings of others, and posted for the purpose of
discussion only. If your case is complicated, then you may need an immigration
attorney. Locate an immigration attorney in your area at: http://www.aila.org
=========================================

Toni D May 27th 2002 7:20 pm

Re: I-130 for spouse who was barred for 5 years
 
    >From: drvic [email protected]

    >I'm a U.S. Citizen. I want to petition for my wife. We have been married 3 years.
    >The last time my wife tried to visit me in U.S. on her tourist visa she was denied
    >entry AND she was "barred" for 5 years because she had overstayed her tourist visa
    >for two months. Is this going to complicate the process? If so, what do I have to do
    >and when? Should we get an attorney? Does my wife still qualify for a K-3? If anyone
    >has been in this situation or has any information about this we sure would
    >appreciate it. THANKS!
    >
    >
    >

She qualifies for the K-3 if you file the I-130 and show proof that it is pending.
Once you get the receipt notice for the I-130 you can file the K-3. You will need a
waiver, I-601. In our case, our marriage application had to be approved first and
then we filed a waiver which was approved also. I used a lawyer because a waiver was
involved because I wanted to make sure we had all the bases covered.

drvic May 28th 2002 5:16 am

Re: I-130 for spouse who was barred for 5 years
 
Thanks!
Toni D, since your situation appears to be similar to mine, I was wondering if I could ask you a couple more questions. My email address is [email protected]. I sure would appreciate it if you would email me and perhaps I could get your specific feedback. Thanks for your time.

I have consulted with a few lawyers so far, and, oddly, nobody knows exactly what issues are involved in filing the waiver. I am desperately looking for a good lawyer in Southern California who has experience (with waivers), any ideas?

Alvena Ferreira May 28th 2002 11:20 am

Re: I-130 for spouse who was barred for 5 years
 
drvic wrote:
    > Thanks! Toni D, since your situation appears to be similar to mine, I was wondering
    > if I could ask you a couple more questions. My email address is
    > [email protected] I sure would appreciate it if you would email me and
    > perhaps I could get your specific feedback. Thanks for your time. I have consulted
    > with a few lawyers so far, and, oddly, nobody knows exactly what issues are
    > involved in filing the waiver. I am desperately looking for a good lawyer in
    > Southern California who has experience (with waivers), any ideas?
    >
Matt Udall is located in LA, and he is reported to be very good from others'
experiences in this group. Matt seems very familiar with fiance/spouse visa
immigration. You can locate his website at: http://members.aol.com/MDUdall/

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,
gleaned from the previous postings of others, and posted for the purpose of
discussion only. If your case is complicated, then you may need an immigration
attorney. Locate an immigration attorney in your area at: http://www.aila.org
=========================================

Andy Platt May 28th 2002 12:20 pm

Re: I-130 for spouse who was barred for 5 years
 
They would have written the section of law she was banned under in her passport.
What was it?

Andy

--
I'm not really here - it's just your warped imagination. "drvic"
<[email protected]> wrote in message news:[email protected]...
    > I'm a U.S. Citizen. I want to petition for my wife. We have been married 3 years.
    > The last time my wife tried to visit me in U.S. on her tourist visa she was denied
    > entry AND she was "barred" for 5 years because she had overstayed her tourist visa
    > for two months. Is this going to complicate the process? If so, what do I have to
    > do and when? Should we get an attorney? Does my wife still qualify for a K-3? If
    > anyone has been in this situation or has any information about this we sure would
    > appreciate it. THANKS!
    >
    >
    >
    > --
    > Posted via http://britishexpats.com

drvic May 29th 2002 5:18 am

Re: I-130 for spouse who was barred for 5 years
 
Andy,

Here's what the Expedited Removal Order says, and the section of the law is cited as follows:

"Pursuant to section 235(b)(1) of the INA act... you are inadmissible under sections 212(a)7(A)(i)(II)... and therefore are subject to removal in that... you only possessed a B1/B2 visa and had recently entered for a prolonged period which does not meet the definition of 'visitor for pleasure or for business'."

The attorney with whom I consulted today said that the 5-year bar was due to the INS Officer's suspicion that my wife intended to immigrate and not simply visit me. The attorney said he disagreed strongly with the order, as there was ample evidence that my wife was simply visiting me, and that the Officer could have simply directed my wife to return to Mexico "voluntarily" without a formal removal and Bar. He concludes that it was basically Post 9-11 panic. (The entry bar took place in November 7).

Please continue to post and thanks to all!

Andy Platt May 29th 2002 5:20 pm

Re: I-130 for spouse who was barred for 5 years
 
"drvic" <[email protected]> wrote in message
news:[email protected]...
    > Andy,
    >
    > Here's what the Expedited Removal Order says, and the section of the law is cited
    > as follows:
    >
    > "Pursuant to section 235(b)(1) of the INA act... you are inadmissible under
    > sections 212(a)7(A)(i)(II)... and therefore are subject to removal in that... you
    > only possessed a B1/B2 visa and had recently entered for a prolonged period which
    > does not meet the definition of 'visitor for pleasure or for business'."
    >
    > The attorney with whom I consulted today said that the 5-year bar was due to the
    > INS Officer's suspicion that my wife intended to immigrate and not simply visit me.
    > The attorney said he disagreed strongly with the order, as there was ample evidence
    > that my wife was simply visiting me, and that the Officer could have simply
    > directed my wife to return to Mexico "voluntarily" without a formal removal and
    > Bar. He concludes that it was basically Post 9-11 panic. (The entry bar took place
    > in November 7).

That sounds exactly right. That's one of the fundamental problems with the '96 laws -
it allows too much power to be put into the hands of the POE. Prior to expedited
removal it would have been a judge that would decide that. Now, I have no problem if
the person was told you don't present enough evidence of your intentions and you can
either withdraw voluntarily or be removed anyway - that way the bar on returning
wouldn't be made. But, once it's been made, it's there even if it was applied
incorrectly.

As to the laws in question - 235(b)(1) is fairly self-explanatory. It says that an
immigration official can expedite removal for a couple of conditions plus any more
that the "attorney general" may decide to proscribe.
212(a)7(A)(i)(II) is the bit about immigrants - trouble is, she wasn't an immigrant,
they just decided she was.

Anyway, the process is going to be apply for the visa, get it denied and file a
waiver. I would strongly suggest an attorney experienced in waivers for that and it
sounds like you are already feeling them out.

Good luck!

Andy.

--
I'm not really here - it's just your warped imagination.
    >
    > Please continue to post and thanks to all!
    >
    >
    >
    > --
    > http://www.ameriscot.com/i130
    >
    > http://www.ameriscot.com/i130
    >
    > Petra
    >
    > http://www.ameriscot.com/i130
    >
    > Posted via http://britishexpats.com


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