Immigration Site

Hi all,

I will try to keep this as simple as possible. I am a permanent resident. I applied for the I-130 for my wife when she was living the United States. After we applied for the I-130, she left the United States as part of voluntary departure for overstaying her Visa; she is subject to a 10-year ban. Since that time, we have been living together overseas.

An I-130 interview is scheduled for the both of us this coming Monday. I returned to the United States to attend the interview, but obviously my wife could not make it because of the 10-year ban. Therefore, I will have to attend the I-130 interview by myself. I will bring as much supporting documentation as I can. Separately, to complicate things further, I have a criminal matter on my record (but that matter was pled out and resolved before going to trial). I have all of the documentation related to that criminal matter, and have presented it to the immigration officials at the airport several times and have never had an issue going in or out of the country because of it.

Anyway, Im here trying to get advice as what I should expect on Monday at the interview. I think I can handle the criminal matter issue, and I will have enough information/proof regarding the validity of our marriage. But what do I say/do about the fact that my wife cannot attend the interview, and that she is subject to a 10-year ban? Could they approve the I-130 and then tell me to apply for a waiver to lift the ban for her? What else could happen? Could Immigration recommend consular processing instead to get around the ban issue? Im just trying to get a sense of what to expect/do. Unfortunately, I have consulted a couple of lawyers, but do not have sufficient funds at the moment to afford an attorney.

Any info would be much appreciated!

Thanks

After we applied for the I-130, she left the United States as part of voluntary departure for overstaying her Visa; she is subject to a 10-year ban. Was that a voluntary departure granted by an immigration judge, or just she deciding to leave on her own? How long has she been outside the US since leaving?

Could Immigration recommend consular processing instead to get around the ban issue? Did you also file an I-485? Normally there wouldnt be an interview inside the US if the I-130 was filed without the I-485. Consular processing doesnt get around the 10-year ban. But ban or no ban, consular processing is the only option for somebody who is physically or legally unable to enter the US.

Are you aware that youre jeopardizing your own green card by living abroad for an extended time?

Was that a voluntary departure granted by an immigration judge, or just she deciding to leave on her own? How long has she been outside the US since leaving?


Did you also file an I-485? Normally there wouldnt be an interview inside the US if the I-130 was filed without the I-485. Consular processing doesnt get around the 10-year ban. But ban or no ban, consular processing is the only option for somebody who is physically or legally unable to enter the US.

Are you aware that youre jeopardizing your own green card by living abroad for an extended time? 1. She was subject to removal proceedings, and the voluntary departure was granted by the judge.

2. Yes, I believe we filed the I-485 as well.

3. Yes, I completely understand and I am aware that I am jeopardizing my green card by living abroad. It is a catch-22 (live abroad with my wife who is unable to enter the US, or jeopardize losing the green card, which is the only thing that could get my wife back into the US).

Question: I thought a waiver of the 10-year ban would be an option for my wife so that she could adjust status in the U.S. if the I-130 is approved. Is that incorrect? Is that not an option?

I-485 requires the beneficiary to be inside the US at the time of filing, and they must remain inside the US during the I-485 processing unless they have Advance Parole or a dual intent status (H1B/H4/L1/L2). And when filed for the spouse of a green card holder, the beneficiary must be in legal status. So the I-485 is dead, and never should have been filed in the first place.

However, I-130 approval does not depend on legal status or location of the beneficiary. So they could and should approve the I-130 by itself, and then some time in the future she can immigrate via consular processing. But I dont know if theyll keep the I-130 alive all the way until she completes the 10-year ban. You may have to file another I-130 ... and be aware in mind that if you are still a permanent resident, it will take a few years after the new I-130 filing for her to get a consular interview. So be prepared to file another I-130 when it is 3 or 4 years before she completes the ban.

Waivers are rarely granted and would require proving extreme hardship to her spouse or another US relative if she left the US. Mere separation from ones spouse is not considered extreme hardship ... extreme hardship is for situations like where ones spouse or child is severely disabled and depends on the other for day-to-day care which will not be provided by others.

How many years are left for her to complete the 10 years?