I-485 confusion?!?

[socrchik574]

My husband and I got married in June of this past year. He is a Russian citizen who overstayed his J1 visa (by about 3 years). We filed the necessary paperwork with a lawyer and was granted an interview on Nov. 8 2010. The interviewer asked the common questions (where we met, who's idea it was to get married, etc.) and also explained that he was new at the interviewing process. After returning from photo copying pictures, bank statements, etc, he told us that he believed that we were in a bonafide marriage and we would continue with the rest of the paperwork.

We were almost finished when the officer asked about his entry into the US. His brother has lived (legally) in the United States for the past 7+ years and wanted to bring my husband over. He arranged a J1 visa to be issued in 2007, and upon entry into the country, he was to go to the Buffalo area to work. He was picked up at the airport and never reported to where he was to work. Instead, he proceeded to a different area and obtained a job, where we later met. The USCIS officer says that because he did not report to that particular employer, that his entry into the United States is considered fraudulent and that he could not approve the I485 at that time. He then copied the necessary forms to show I would be in "extreme hardship" if he was to leave the country (also informed us that these waivers are rarely granted).

The following day we contacted our lawyer and he said that what the officer said what a bunch of bull****. He then instructed us to write a letter that would be sent explaining that upon his entry, his circumstances changed and that was the reason he did not report to the first job. Its been 8 weeks since the letter was submitted and we have not heard anything. I'm constantly nagging my husband to call the lawyer to see if anything new has developed and run to the mailbox everyday to only be disappointed. Has anyone had or have heard of this problem before? Thanks...

 

[Jackolantern]

He then instructed us to write a letter that would be sent explaining that upon his entry, his circumstances changed and that was the reason he did not report to the first job.

Whose circumstances changed? The job which was the basis of the J1 visa suddenly became unavailable?

 

[Al Southner]

Whose circumstances changed? The job which was the basis of the J1 visa suddenly became unavailable?

Your lawyer needs a refresher's course in ethics. He is asking you to lie to the federal government in writing, this is a criminal offense. You need to clear this hurdle, why didn't your husband explain that fact (changes circumstances) to the immigration officer during the interview? According to the law, your husband obtained the visa fraudulently with ulterior motives. Here is a perfect analogy which I hope it will make you get this: let us say your husband requested a student visa F1 to study at NYU for an undergraduate degree. Upon arriving in NY, he boards a plane to Iowa and get married to you within 30 days of entering the country, never set his foot on NYU campus. Once you file for his immigration paperwork, immigration say ok...hold a minute, you got a student visa and never attended NYU, moved to Iowa and got married. He says...wait a minute, I meet my wife while I was in NY and we fell in love, I decided get married and having kids was more important than my degree.

USCIS is justified in seeking to deny your husband's petition, because he never handled his end of the bargain. You might want to invest in another lawyer, this will be a tough nut...

 

[BigJoe5]

OP said: ... He arranged a J1 visa to be issued in 2007, and upon entry into the country, he was to go to the Buffalo area to work. He was picked up at the airport and never reported to where he was to work. Instead, he proceeded to a different area and obtained a job, where we later met....

Question: Did he obtain the same type of job for the petitioning employer/sponsor in a different location of the same company/organization/university system or whatever?

If this is not the case, then he committed immigration fraud at entry. While he was inspected and did make a barely legal entry, his waiver should be for "fraud/misrepresentation".

INA Sec. 212. [8 U.S.C. 1182] - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY

(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(6) Illegal entrants and immigration violators.-

(C) Misrepresentation.-

(i) In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

(iii) Waiver authorized.-For provision authorizing waiver of clause (i), see subsection (I).

INA 212

(i) (1) The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien 25b/ or, in the case of a VAWA self-petitioner 6aa/ , the alien demonstrates extreme hardship to the alien or the alien's United States citizen, lawful permanent resident, or qualified alien parent or child.

(2) No court* shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (1).

A very basic starting point regarding "extreme hardship" is found at 8 CFR 1240.58

SEE: http://ecfr.gpoaccess.gov/cgi/t/tex...div8&view=text&node=8:1.0.2.5.19.6.1.4&idno=8

*NOTE: when this statute was written INS was still around and run by the Attorney General. Things have changed, the Secretary of Homeland Security now has primary authority BUT the Attorney General still has jurisdiction through an Immigration Judge or the BIA. The "court" in the statute means a U.S. Federal District Court or Circuit Court of Appeals.