I-601a

[hellokitty56]

Hi, I'm kinda new here, trying to look for some answers to our case.
My husband entered USA thru his mother as a dependent with a G4 visa (my mother-in-law used to work for the United Nations in New York) then he found a job as a driver to a Sierra Leone delegate and visa was changed to G1. We got married in 1997 and I was petitioned (thru my husband's work thru the Mission of Sierra Leone) and given a G1 visa and arrived here in the US in 1998. Unfortunately, my husband resigned from the Mission to Sierra Leone and lost our G1 visa in 2000. He got a job in shipping /receiving (hired a lawyer) which petitioned him in 2009 and got approved in 2017(in short,we overstayed). We followed the process for filing I-485 Adjustment of Status then husband got a schedule for biometrics in April 2018 then our lawyer filed for provisional waiver I-601A which got approved April 2019. Now we are waiting for the NVC for the schedule of interview. Our lawyer called and told my husband that he is the only one going to be interviewed in the US embassy in Manila, Philippines. I have to stay because I have no qualifying relative to file for my own Provisional waiver. I have to wait till my husband get the actual Green card and he would petition/file for me. WE are so confused, our lawyer did not mention anything to us about this. From the beginning the application for a Green card thru employer that was approved I'm a derivative.
Please if anyone can give an enlightenment of our case it would be greatly appreciated.

[newacct]

Assuming that both of you have accrued more than a half year of "unlawful presence", what you described seems essentially correct. Basically, neither of you are eligible for Adjustment of Status because you are out of status. (So neither of you will file I-485. There was probably some misunderstanding about the name of the process.) So both of you can only immigrate by Consular Processing abroad. However, leaving the US after accruing 180 days of "unlawful presence" triggers a 3-year ban; leaving the US after accruing 1 year of "unlawful presence" triggers a 10-year ban. An immigrant waiver for this ban is only possible if you can show that your spouse or parent who is a US citizen or permanent resident will suffer "extreme hardship" if you can't be in the US. If you have only this ban which will be triggered upon leaving the US, and no other bans, you can apply for a "provisional waiver" with I-601A before leaving the US (and before triggering the ban), and get the results before leaving the US, and assuming that you have no other bans, the provisional waiver will waive the ban without needing to apply for an I-601 waiver abroad while doing Consular Processing. That is what your husband did. You did not say which relative of his he showed will suffer "extreme hardship"; was it his mother who is a US citizen or permanent resident? You have the same problem of triggering the ban when you leave the US, but you have no spouse or parent who is a US citizen or permanent resident yet, so you cannot apply for an immigrant waiver for this ban right now. So your husband goes and does Consular Processing and gets the immigrant visa and enters the US, immediately becoming a permanent resident. Then you can apply for your provisional waiver based on "extreme hardship" to him, your permanent resident spouse. Then once that is approved, you would do Consular Processing yourself. They are incorrect if they said your husband has to petition you separately as a spouse of a permanent resident -- you can still immigrate as his derivative beneficiary. But it is true that you will have to immigrate later than he does, since you have to wait until he enters the US with his immigrant visa before you can qualify for a waiver. Note that derivative beneficiaries can immigrate later than the principal beneficiary, as long as a visa number is available for his category and priority date; so you can still immigrate as a derivative beneficiary even if you immigrate later.

However, in your case there is a good chance that neither of you have accrued any "unlawful presence", and thus neither of you need any waiver at all. You were both last on G1 status, and as far as I know, people in G1, G2, G3, and G4 statuses are usually admitted for "D/S" (duration of status) on their I-94s instead of a date. You should check your I-94s to see if it says that. People in statuses other than F, J, and M status do not start accruing unlawful presence simply for going out of status. Rather, they usually only start accruing unlawful presence by staying past the date on their I-94, and, if their I-94 has D/S instead of a date, that means they do not automatically start accruing unlawful presence ever. The only situations someone in a status other than F, J, M, who has D/S on their I-94, can start accruing unlawful presence are 1) if they apply for a benefit to USCIS and USCIS denies it with a determination that they were out of status, or 2) there was a final order of deportation from an immigration judge in immigration court. Assuming neither of those things happened to either of you, neither of you would have accrued a single day of "unlawful presence" until now, which means neither of you would trigger a ban upon leaving the US, and so both of you can do Consular Processing abroad without needing a waiver.

[hellokitty56]

Hi! We are grateful for your response.
I stand corrected, you’re right it’s not I-485 AOS instead our filed for I-824 Application for Action on an Approved Application or Petition that got approved on 5/2017 and we received the notice date 9/2017. Then our lawyer ask us to pay $690 for Immigration Visa application processing fee for both of us in 10/2017. After a month they asked us to send again payment for I-601a application fee + biometrics $715 total (documents sent to Nebraska Service Center). After my husband did his biometrics in Boston 4/2018, we received a notice in 5/2018 from Nebraska SC that our application/petition was transferred to Potomac SC to speed up processing. Potomac SC asked for more evidence (for the I-601a my husband filed which his USC mother & father now will suffer extreme hardships ) in 2/2019 (completed & approved in 4/2019). As mentioned before, awaiting for NVC to send a case number, etc. to fill up CEAC.

We did have G1 visa and our I-94 was stamped with D/S. We neither have an outstanding deportation order nor denied USCIS benefits. So frustrated to learn what our lawyer’s saying.

[hellokitty56]

Assuming that both of you have accrued more than a half year of "unlawful presence", what you described seems essentially correct. Basically, neither of you are eligible for Adjustment of Status because you are out of status. (So neither of you will file I-485. There was probably some misunderstanding about the name of the process.) So both of you can only immigrate by Consular Processing abroad. However, leaving the US after accruing 180 days of "unlawful presence" triggers a 3-year ban; leaving the US after accruing 1 year of "unlawful presence" triggers a 10-year ban. An immigrant waiver for this ban is only possible if you can show that your spouse or parent who is a US citizen or permanent resident will suffer "extreme hardship" if you can't be in the US. If you have only this ban which will be triggered upon leaving the US, and no other bans, you can apply for a "provisional waiver" with I-601A before leaving the US (and before triggering the ban), and get the results before leaving the US, and assuming that you have no other bans, the provisional waiver will waive the ban without needing to apply for an I-601 waiver abroad while doing Consular Processing. That is what your husband did. You did not say which relative of his he showed will suffer "extreme hardship"; was it his mother who is a US citizen or permanent resident? You have the same problem of triggering the ban when you leave the US, but you have no spouse or parent who is a US citizen or permanent resident yet, so you cannot apply for an immigrant waiver for this ban right now. So your husband goes and does Consular Processing and gets the immigrant visa and enters the US, immediately becoming a permanent resident. Then you can apply for your provisional waiver based on "extreme hardship" to him, your permanent resident spouse. Then once that is approved, you would do Consular Processing yourself. They are incorrect if they said your husband has to petition you separately as a spouse of a permanent resident -- you can still immigrate as his derivative beneficiary. But it is true that you will have to immigrate later than he does, since you have to wait until he enters the US with his immigrant visa before you can qualify for a waiver. Note that derivative beneficiaries can immigrate later than the principal beneficiary, as long as a visa number is available for his category and priority date; so you can still immigrate as a derivative beneficiary even if you immigrate later.

However, in your case there is a good chance that neither of you have accrued any "unlawful presence", and thus neither of you need any waiver at all. You were both last on G1 status, and as far as I know, people in G1, G2, G3, and G4 statuses are usually admitted for "D/S" (duration of status) on their I-94s instead of a date. You should check your I-94s to see if it says that. People in statuses other than F, J, and M status do not start accruing unlawful presence simply for going out of status. Rather, they usually only start accruing unlawful presence by staying past the date on their I-94, and, if their I-94 has D/S instead of a date, that means they do not automatically start accruing unlawful presence ever. The only situations someone in a status other than F, J, M, who has D/S on their I-94, can start accruing unlawful presence are 1) if they apply for a benefit to USCIS and USCIS denies it with a determination that they were out of status, or 2) there was a final order of deportation from an immigration judge in immigration court. Assuming neither of those things happened to either of you, neither of you would have accrued a single day of "unlawful presence" until now, which means neither of you would trigger a ban upon leaving the US, and so both of you can do Consular Processing abroad without needing a waiver.

newacct Hi, we just received Thursday our schedule for interview this coming January. We were both excited & thankful upon learning this notification.
My husband will attend but I decided to stay due to no one will take care of our two(10 y/o & 11 y/o) USC minor children and our 20 y/o USC daughter is away (Full time College student). Since I’m a derivative (thru husband’s employment-based petition) can I request for another interview schedule? How do I go about it? Please advise.
Thank you in advance for any suggestions you’ll impart.

[newacct]

newacct Hi, we just received Thursday our schedule for interview this coming January. We were both excited & thankful upon learning this notification.
My husband will attend but I decided to stay due to no one will take care of our two(10 y/o & 11 y/o) USC minor children and our 20 y/o USC daughter is away (Full time College student). Since I’m a derivative (thru husband’s employment-based petition) can I request for another interview schedule? How do I go about it? Please advise.
Thank you in advance for any suggestions you’ll impart.

Yes, as derivative, you should still be able to interview after he immigrates.

[hellokitty56]

Yes, as derivative, you should still be able to interview after he immigrates.

newacct Thanks for your prompt response; just have a couple of questions.
1.Can my husband inform & ask the Consular Officer on the day of the interview if its possible to reschedule my interview?

2. If I get rescheduled how long is the wait and does he have to be present/accompany me to my interview?