Waiver section 212 (a)(9)(B)(i)(II)

[raphaelcan]

I went to the USA in 2007 with the J-1 visa, but I overstayed my visa for 3 years, I returned to Brazil in May 2012.
In 2015 I got married with a green card hold, so in 2016 we start a process (I-130) for me to get the green card.
Last week I went to my green card interview, but the consul didnt approve and said that I need to do the waiver, based on section 212 (a)(9)(B)(i)(II) (Were unlawfully presente in the USA for 365 days or more, considered inadmissible for a period of ten years after subsequent departure from the USA).
But there is a lawer saying that even though I do the waiver process (I-601), it's going to be denied again and I'll only be able to get after the 10 years have pass.
Can anyone tell me if this is true or if I can continue with the waiver process that there is a possibility that I get approved before May 2022. Does anyone know who had the waiver approved in a case the same as mine?

[Totellthetruth]

I went to the USA in 2007 with the J-1 visa, but I overstayed my visa for 3 years, I returned to Brazil in May 2012.
In 2015 I got married with a green card hold, so in 2016 we start a process (I-130) for me to get the green card.
Last week I went to my green card interview, but the consul didnt approve and said that I need to do the waiver, based on section 212 (a)(9)(B)(i)(II) (Were unlawfully presente in the USA for 365 days or more, considered inadmissible for a period of ten years after subsequent departure from the USA).
But there is a lawer saying that even though I do the waiver process (I-601), it's going to be denied again and I'll only be able to get after the 10 years have pass.
Can anyone tell me if this is true or if I can continue with the waiver process that there is a possibility that I get approved before May 2022. Does anyone know who had the waiver approved in a case the same as mine?

Hi
Yes the consulate was right .because you overstayed for 3 years therefore you must have a waiver BEFORE you even left the U.S applying for a I-130 application abroad.
in that case you must apply for a waiver and wait and see if the waiver gets accepted or denied before your 10 years ban is over and noone can tell that if that will be approved or denied before may 2020 or after .
also your husband is not a U,S citizen but a Green Card holder which makes things way different and its process moves slower.


Good Luck

[newacct]

I went to the USA in 2007 with the J-1 visa, but I overstayed my visa for 3 years, I returned to Brazil in May 2012.
In 2015 I got married with a green card hold, so in 2016 we start a process (I-130) for me to get the green card.
Last week I went to my green card interview, but the consul didnt approve and said that I need to do the waiver, based on section 212 (a)(9)(B)(i)(II) (Were unlawfully presente in the USA for 365 days or more, considered inadmissible for a period of ten years after subsequent departure from the USA).
But there is a lawer saying that even though I do the waiver process (I-601), it's going to be denied again and I'll only be able to get after the 10 years have pass.
Can anyone tell me if this is true or if I can continue with the waiver process that there is a possibility that I get approved before May 2022. Does anyone know who had the waiver approved in a case the same as mine?

I think very likely you did not accrue any "unlawful presence" on your last stay, and the officer is wrong. People on J-1 status, especially ones on a long program like yours, are usually admitted for "D/S" on their I-94s, not a date. You should see if you have a record of your J-1 I-94 from back then to make sure. Prior to 2018, people only start accruing "unlawful presence" when staying past the date on their I-94, so if they were admitted for "D/S", they did not automatically start accruing "unlawful presence" even if they stayed for years after the end of their program. The only other ways in which you could have started accruing "unlawful presence" are 1) if you applied for some benefit to USCIS (e.g. for Change of Status or an EAD) and you were denied with a determination that you were out of status, or 2) if you were given a final order of deportation in immigration court; I'm assuming neither of these things happened, so you shouldn't have accrued a single day of "unlawful presence" before you left on your last stay.

Since you are doing Consular Processing at a consulate abroad, the Department of State's Foreign Affairs Manual would apply to them. Look especially at 9 FAM 302.11-3(B)(1)(d). One only starts accruing "unlawful presence" after ceasing to engage in activities for which you were in J-1 status for, only after August 9, 2018 (or if you ceased to engage in those activities before and stayed past August 9, 2018, in which case "unlawful presence" would start accruing on August 9, 2018; but you left way before that).

(1) Applicants who previously were in the United States in F, J, or M status may have started to accrue unlawful presence upon the first occurrence of any of the events outlined below:

(b) the day after the applicant ceased engaging in the activities for which he or she was in the United States in F, J, or M status, such as the day after the applicant stopped attending school, engaging in authorized practical training, or participating in the exchange program (plus any applicable grace period) as described further in paragraph (2) below. Note this only applies for actions on or after August 9, 2018; An applicant who failed to maintain nonimmigrant F, J, or M status before August 9, 2018, and remained in the United States after that date began accruing unlawful presence on August 9, 2018.

Also see the third example:

(5) (c) If an F-1 student was admitted for duration of status and after completing her approved course of study (including any permissible period of optional practical training and any applicable grace period) remained in the United States for two years from 2014 until 2016 when she departed the United States without a formal finding that she violated her status, the student did not accrue unlawful presence as she was admitted for duration of status and was not in the United States on or after August 9, 2018.

I'm not sure what you can do if the visa officer insists on their wrong opinion though; visa denials are generally unreviewable.

If you get approved for the waiver, then you definitely can immigrate (assuming you have no other bans); what this "lawyer" said makes no sense. But USCIS might deny your waiver anyway because they would determine that you don't have a ban.