Asked to file I-601 when attended for family based interview

K

ksuk

Registered Users (C)
I was on H1-b visa when I married my wife and she was a GC holder. My wife got her Citizenship in June. I applied for AOS through her and we got our Interview on Oct 30th.

The Immigration office asekd me to file I-601, Application for Waiver of Ground of Excludability and a statement from my wife the hardship she will have to go through if they remove me from US.

The reason he gave me was that I was on a H1-B and left the country to get married. And since I got married to a Resident I was supposed to declare at the port of entry that I was married to a Permenant resident. And sicnce I did not do that, I should file this form asking for a Waiver. He said they will review and if they are convinced by the application they will grant me GC.

My H1-B is valid till July 2004. I am confused. I did not violate any law at anytime.

Is there any one who can help.
 
Sounds like an error on the part of the immigration officer. As long as you were on H-1 ( a dual-intent visa), being married to a GC holder has no implications on your entry into the U.S. Different if you were on B-1/2 or F1 visas which require a non-immigrant intent.

Recommend you get a lawyer. Unless Im missing something or there are other details to this case, the immigration officer is clearly not correct. Theres no need to declare marriage to a GC holder for H-1 visa holders (unless specifically asked - which nobody does, since marriage has no bearing on entry)
 
Creating a doubt about application..

Hi Mgh2001..
I needed some urgent clarification since I'm almost on the verge of applying for my wife and the case is very similar to this one.
Last year I was a GC, went back to India, got married and my wife was on OPT with a student visa that time. She was working for a small company who were to process her visa later. Anyways, we entered back to the US without any problems and since then the company refused to do her H1, so she had to go back to school pursuing another degree.
1) So I recently became a US citizen and wanted to file the AOS package for her. As per your reply her petition will most probably be denied based on an immigrant intent, isnt it?
2) My wife has always been maintaining her own status without any dependence on me so far. Does that help?

Well, would be grateful for your response..
 
Well, at this point you should just go ahead and file for AOS for your spouse and not worry too much about it.

Normally the burden for denying entry based on immigrant intent is on the POE officer: as long as your wife did not lie when asked about marriage, you should be fine. Nothing wrong with not volunteering info if not requested.

Even if the topic comes up in the interview, I doubt this issue would be a basis for denying a petition ( spouses of U.S citizens can get adjusted even if they are out-of-status).

Also, the first posting seems like a very strange case. Ive never heard of anyone getting asked to file I-601 just because they entered the country after marriage.

The only thing I'd recommend is for your spouse to avoid travel until she has her AP. Re: point #2, it obviously helps that she's maintained legal status throughout her stay here, in that theres less scrutiny required. Other than that, dont think that has any bearing on whether the interviewer will ask her about entry into U.S after marriage.
 
More Info About my I-160

I went to INS office today.

As advised by my Company's Lawyer (which had sponsored my H1-B). I went to the INS office to ask them what my fault was and why I should be filing I-160.

I even took a print out of H1-B visa FAQ and showed them that my visa is a dual intent visa and I shouldn't be filing this application.

The standard answer was. "You failed to notify the office at the port of entry that you were married and your intent was to immigrate to the US. If you are willing to file this application explain what you are trying to explain to us or if you do not want to file this form we will evaluate the case as is and come to a conclsion or get an lawyer and talk to us".

They did not give me any room to appeal. Now I am on my way looking for a local attorney. Will keep posted on what I go through.
 
Guys and Gals,

Is it necessary to report a change of address even if you have access to mail at the old address. I bought a new house but still own the old house as well in the same city. Do I need to report a change of address to BCIS for my pending family based application. Any insight would be greatly appreciated.

Thanks In Advance,

QCO
 
Yes by law you are required to notify INS of your new address.

here is the Text from the AR-11 form.


ALIEN'S CHANGE OF ADDRESS CARD
This card is to be used by all aliens to report change of address within 10 days of such change.
The collection of this information is required by Section 265 of the I&N Act (8 U.S.C. 1305). The data used by the Immigration and
Naturalization Service for statistical and record purposes and may be furnished to federal, state, local and foreign law enforcement
officials. Failure to report is punishable by fine or imprisonment and/or deportation.
 
Ksuk:

Curious as to how the interviewer found out that you hadnt reported you were married. I mean you could just have told him verbally - its not as if you have to file any paperwork or any annotation is made on I-94 indicating you were married? Why did the topic even come up??

Investment in a lawyer would be very worthwhile at this stage. There's no point arguing with random BCIS officers - without case details, they're not likely to undo an official statement made by your interviewer.

Mgh2001
 
mgh2001:

Reply to your question?

Since I got married in India he looked at the marriage certificate and asked me what was that. I told him we went to India to get married. He immediately asked how did you come to the US after your marriage. I told him I have an H1-B which is valid till July 2004. He asked did I tell anyone at the port of entry that now I was married to a GC holder (then my wife was on GC). I said no, and also told him that there was no provision to declare and no one asks you. That is when he said you have a non immigrant visa and you had an intention of immigrating. So you have to file the I-601 waiver to exclude you. He handed me the application form and told me how much the fee was. He also told me to put everything what I said in a piece of paper and submit with the application form. And my wife was asked to file a letter of hardship she will go through if I am removed from the US.

I even told him I had my H1-B much before I even got married. I got married in 2001 and I had my H1-B from 1998.

I am looking for a lawyer now. I spoke to one of them and he said the Immigration officer is at fault and I really need a lawyer.
 
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Good luck with the lawyer and everything. Not to worry - the max this will do is delay processing plus lawyer fees because of a stupid mistake on the part of the interviewer. You do not have to worry about status either as long as you keep extending your EAD/AP. Keep us posted on how things progress.
 
Thanks for your reply, mgh2001. I guess you are right and I will go ahead and file the AOS for my wife. Dont have too much of choice anyways.
Ksuk, could you please tell me which INS centre did this incident occur with you? and yep, this is an unfortunate case for you. I distinctly reading one of those chat transcripts at murthy chat that H1 is a dual intent visa, so the officer was certainly wrong..
 
jamesbond911:

This happened at Sacramento, CA.

A quick suggestion. Please hire a lawyer, and let them file for you. They will accompany you for the interview too. It will cost you money but you will have less headace.
 
I-601 was not required

Finally INS realized that I did not need I-601. This was after I hired a local lawyer who explained the whole scenario to them via email and it was sorted out.

Today I got my Passport stamped with the temperory GC. Will have to wait to get the card.

Thanks for every ones input....
 
Hi
I have a similar situation. I have a gc and my wife is on F-1. We went to india and got married. came back to US. No one asked us if were married and we did not tell them.

Would this be a problem later? or should we just do a registration marriage at a later date within us ?

Pls help!
 
Mine case is also similar . When we got married I was on GC and my wife was on F1. We got married in India. When we came back here I don't remember any form where we were supposed to declare "married to GC". Later she converted to H1b and everywhere we have been declaring that spouse is GC. I just got my citizenship and filed for her GC.
Do you know which form we were supposed to declare "married to gc", We didn't lie at any point.
Please update.
Thanks
 
Dont believe there's any law which states you need to declare your marriage at the port of entry. But for everyone on GC with F-1 spouses - the F-1 is a strict non-immigrant intent visa, as is the B-2. By law, the POE officer can, and probably will, deny entry if he/she suspects F-1 holder has intent to immigrate. Being married to GC holder doesnt necessarily mean the person is planning on immigrating - although much more likely than being married to a non-GC holder, so there are no laws being broken here (unless of course, the POE officer asks if a person is married and the person lies).

I'd say getting entry was probably fortuitous so nothing to worry about. But you shouldnt plan any more trips outside the country until you get a visa with a dual intent (H-1/L-1). Also remember that you do need to declare spouse's immigration status on DS-156 when applying for a new non-immigrant, non-dual-intent visa, in which case the visa will probably be denied.
 
My wife is already on H1B now ( for 5 years). When we applied for her H1B in vancouver ( to get the multiple H1B) , we clearly mentioned that spouse is a permanent resident. They didn't even ask anything about it.
Now I am a US citizen and filed for her AOS. Is it ok to travel abroad once we get her Advance parole. I beleive once she gets the Advance parole, her H1B is no longer valid.

Thanks
 
She can travel even now without AP (on H-1). Her H-1 status is valid until the point she re-enters the country on AP. The AP approval is required in hand prior to leaving country only if the H-1 has expired and you do not wish to renew it.

Merely having an AP approved will not change her status. If she has a valid H-1, might as well continue to using that to avoid the hassle of undergoing secondary inspection thats required for AP. Moreover, having a H-1 visa may ease transit visa restrictions that many European countries impose now.
 
mgh, thanks for the info.

I have couple of questions. My wife is on F-1 now and plans to change school so we can be together. Her F-1 visa expires may 2005. She won't be able to finish by that time.

Do we need to file DS-156 to renew her visa? Do we have to leave the country to renew her visa? Do you think her visa will be denied just based on marriage to a gc?

How does merely marrying to a GC change the intent to immigrating?

Also, even if we don't plan to travel is it necessary to renew her visa? or can we just let the visa expire while maintaing proper I-20 and valid I-94 which would suffice to maintain F-1 status?

Appreciate your help.
 
Hi mgh2001..
Needed some advice for you in this since you seemed to have a pretty decent help for F1 spouses of GC Holders. To refresh I was a gc holder and my wife was on F1 when we went to india n got married. She had no problems entering in as no POE officer asked her marriage status. Since then almost 1.5 years,she took a new F1, I got my citizenship and I applied AOS for her. Now shortly we have our AOS interview (much soooner than we expected!!) and I'm sure this topic may arise about the immigration intent on a F1 visa. any suggestions you might have in this scenario??
zorro765, oath_in_wash_dc...you guys also seemed to be in the same boat. Any more input will be highly appreciated.
Thanks a lot.
 
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