Nervous Wreck of a Bride To Be, I-485, lawyers disagree, my first post

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My fiance currently resides in the U.S. and has an expired B1/B2 10 year visa. He left the country in 2005 and then returned in 2007 and was inspected and entered legally both times when he first arrived in this country in 2000 and when he came back after leaving in 2007. We are not sure why they let him into this country on an expired visa when he came back in 2007 but he is here now. His tourist visa was expired long before he left the country in 2005 and returned in 2007 so he is facing a 10 year bar due to his overstay and corresponding unlawful presence. He is not eligible for DACA as he came here when he was a few months past the required age date.

My question is this: Since my fiance is facing a ten year bar, does he have to leave the country and wait the 10 years out in his home country, or can he wait out the ten years in this country since he is here already? We have spent a lot of time and financial resources with several lawyers and we keep being told different things namely either of the following:

Scenario #1 from several prominent lawyers:
My fiance must wait 10 years from the time he left the country for the ten year bar to be up and may reside here during the 10 year period.

Scenario #2 from several prominent lawyers:
My fiance must return to his home country (Mexico) and wait out the ten year bar or apply for the I-601 waiver after we get married, he applies for adjustment of status and goes to his visa interview.

Can someone please chime in on this? Any information that you can provide would be very helpful as it appears the legal community is split on this question.

Sincerely,

Nervous Wreck of a Bride to Be in Pacific NW

[rayb]

Your fiancee cannot apply for his Adjustment of Status while in Mexico. He would just have his K1 visa interview and must then be in the U.S. before applying for Adjustment o Status.

Since you have received differing opinions already, my advice, which is not legal advice, is to do the following:

1. Marry while he is here.
2. Submit the I-130 petition without him leaving.
3. Submit the I-485 Adjustment procedure paperwork either at the same time or wait until the I-130 is approved.

You have a better chance of getting his status approved if he does not leave the U.S.

--Ray B

My fiance currently resides in the U.S. and has an expired B1/B2 10 year visa. He left the country in 2005 and then returned in 2007 and was inspected and entered legally both times when he first arrived in this country in 2000 and when he came back after leaving in 2007. We are not sure why they let him into this country on an expired visa when he came back in 2007 but he is here now. His tourist visa was expired long before he left the country in 2005 and returned in 2007 so he is facing a 10 year bar due to his overstay and corresponding unlawful presence. He is not eligible for DACA as he came here when he was a few months past the required age date.

My question is this: Since my fiance is facing a ten year bar, does he have to leave the country and wait the 10 years out in his home country, or can he wait out the ten years in this country since he is here already? We have spent a lot of time and financial resources with several lawyers and we keep being told different things namely either of the following:

Scenario #1 from several prominent lawyers:
My fiance must wait 10 years from the time he left the country for the ten year bar to be up and may reside here during the 10 year period.

Scenario #2 from several prominent lawyers:
My fiance must return to his home country (Mexico) and wait out the ten year bar or apply for the I-601 waiver after we get married, he applies for adjustment of status and goes to his visa interview.

Can someone please chime in on this? Any information that you can provide would be very helpful as it appears the legal community is split on this question.

Sincerely,

Nervous Wreck of a Bride to Be in Pacific NW

[helpmylife]

I would follow raybs advice, it might be your only possible way

Below is some info on the 10year ban

The ten-year bar to re-entry into the U.S. applies to individuals unlawfully present in the U.S. for an cumulative period of one year or more who depart voluntarily Unlawful presence begins to accumulate when the period of authorized stay elapses or after an entry to the U.S. without inspection.

Now, if you entered the United Sates illegally through the borders such as by sneaking in through Mexico or Canada in most every case, will not be allowed to receive your Green Card in the U.S. If you entered with a visa, but overstayed your visa (except for immediate relatives), you will also not be allowed to receive your green card in the United States (adjustment of status).

In these cases you will go through the process called Consular Processing. This process begins with the completion of form I-130 and filing it with the Immigration Service. After some months, if all the paperwork is correct you will receive a NOTICE OF APPROVAL. A copy of the NOTICE OF APPROVAL will also be sent to the National Visa Center. They will send you a package to complete the forms. It consist of a set of forms that sets forth the steps that you are to follow and a notice that you must establish that you will not rely on public assistance once you are in the U.S. and a form to be completed by the sponsor which is a biographical data form. You will complete the forms immediately and send to the consulate. You will then gather all the documents required and have them available when you are called for an interview.

EXCEPTIONS TO THE 3 and 10 YEAR BAR:
1. If you or your parents (while you were under 21 years of age) filed a permanent visa application with the Immigration and Naturalization Service or Labor Department before April 30, 2001, you are protected form this law and will be allowed to receive you Green Card in the United States by paying a fine of $1,000. This is called Section 245(i) adjustment.

2. Children under 18 years of age;

3. Spouse children (under 21 years of age) and parents who entered with a visa;

4. Most people who filed a case with the Labor Department or the Immigration and Naturalization Service for Permanent Residency before April 30, 2001.

The I-601 Waiver
For those that fall into this category, there are limited waivers available for those that want to return in less time.

The 601 waiver is required to be submitted in order to overcome an inadmissibility bar for a prior visa overstay, misrepresentation, fraud, or certain crimes.

An immigrant visa applicant who is ineligible for a visa under INA 212(a)(9)(B) “Unlawful Presence” may not apply for a waiver unless he or she is the spouse or son or daughter of a U.S. citizen or lawful permanent resident (LPR). A waiver under INA 212(a)(9)(B)(v) will be granted in such a case only if the applicant can establish that denial of his or her admission would result in extreme hardship for the U.S. citizen or LPR.

The factors considered relevant in determining extreme hardship to a qualifying relative include, but are not limited to, the following: the presence of United States citizen or lawful permanent resident family ties to this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Matter of Cervantes, 22 I. & N. Dec. 560, 565-566 (BIA 1999).

To establish extreme hardship it is required to demonstrate that the qualifying relative is suffering more than the usual or typical hardship that a family member would experience if their relative cannot rerun to the U.S. Establishing financial hardship alone is not enough. The U.S. citizen/permanent resident relative and not the non-citizen applicant must experience the hardship. It must go beyond that normally expected in cases of family separation. Successful applicants will have to demonstrated unusual hardships to the U.S. citizen/permanent resident relative, such as: a major medical conditions (physical and/or mental); Relative is caring for an elderly, chronically ill, or disabled relative who needs constant care; Relative is the primary caregiver for his/her child(ren) from a prior relationship and the child(ren)'s other parent will not allow the children to be taken out of the country and the child(ren) have formed an emotional attachment to Alien lack of the U.S. citizen/permanent resident’s family ties to the applicant’s country of origin; ability to speak the applicant’s native language; financial considerations; loss of opportunity in applicant’s country of origin, etc

There are two types of I-601 Waiver:
1. I-601 Waiver is used when the beneficiary is living abroad. Learn more.

2. I-601A Waiver is used when the beneficiary is living in the United States