I have an approved I-130 while in removal proceeding from my second marriage. I was paroled to the US 3 years ago because I had a pending I-1485 from my first marriage. After receiving the approval of the I-130 last October, I filed a new I-485 in court. The trial attorney wanted me to file Supplement A form for I-485 so that I can be granted my permanent residency status without leaving the country. But the trial attorney realized that I am not eligible for Supplement A because my petition was filed after 2001 and she did not know what type of relief if any that could help me to finalize my case without leaving the country. My question is what do I need to do from here? Is there any relief which could help me to finalize my case without leaving the US? Thanks much!
Approved I-130 While in Removal Proceeding! Where to go from here?
- Thread starter 1Stop
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Too Little Info
1.) Why are you in proceedings in the first place?
2.) Was the first marriage real or fake?
3.) Did you originally or ever actually enter the U.S. with a valid visa?
4.) What happened with the prior marriage, I-130, and I-485?
5.) Have you got any other issues? Ever overstay a visa? If yes, how long? Ever been granted voluntary departure?
Provide greater details if you want useful replies.
1.) Why are you in proceedings in the first place?
2.) Was the first marriage real or fake?
3.) Did you originally or ever actually enter the U.S. with a valid visa?
4.) What happened with the prior marriage, I-130, and I-485?
5.) Have you got any other issues? Ever overstay a visa? If yes, how long? Ever been granted voluntary departure?
Provide greater details if you want useful replies.
1.) Why are you in proceedings in the first place?
The I-130 and I-485 from my first marriage were denied. I was arrested by the ICE and bonded for $3000.00 and my case went to court.
2.) Was the first marriage real or fake?
It was real and I even send letters to senators and members of congress to help me with my case for more than three years but finally my case was denied and we got divorced. I was at a hearing at the court today. The judge and the trial attorney had no problem with anything in my file other than that I was paroled to the US based on my previous I-485 which they think makes me inadmissible. They were even trying to find me any type of relief so I can have my new I-485 adjudicated without the country. The trial attorney said that the CIS may be able to do that but she had to check first. The judge continued the case to give her a chance to check on this and let me know.
3.) Did you originally or ever actually enter the U.S. with a valid visa?
Yes, I entered with B2 visitor visa.
4.) What happened with the prior marriage, I-130, and I-485?
Denied and that’s why I am in removal proceedings right now.
5.) Have you got any other issues? Ever overstay a visa? If yes, how long? Ever been granted voluntary departure?
No other issues. No criminal records. Yes, I overstayed my visitor visa before I got married the first time. I am not sure how long but it was more than 180 days if that’s what you asking. No, I never granted voluntary departure.
The I-130 and I-485 from my first marriage were denied. I was arrested by the ICE and bonded for $3000.00 and my case went to court.
2.) Was the first marriage real or fake?
It was real and I even send letters to senators and members of congress to help me with my case for more than three years but finally my case was denied and we got divorced. I was at a hearing at the court today. The judge and the trial attorney had no problem with anything in my file other than that I was paroled to the US based on my previous I-485 which they think makes me inadmissible. They were even trying to find me any type of relief so I can have my new I-485 adjudicated without the country. The trial attorney said that the CIS may be able to do that but she had to check first. The judge continued the case to give her a chance to check on this and let me know.
3.) Did you originally or ever actually enter the U.S. with a valid visa?
Yes, I entered with B2 visitor visa.
4.) What happened with the prior marriage, I-130, and I-485?
Denied and that’s why I am in removal proceedings right now.
5.) Have you got any other issues? Ever overstay a visa? If yes, how long? Ever been granted voluntary departure?
No other issues. No criminal records. Yes, I overstayed my visitor visa before I got married the first time. I am not sure how long but it was more than 180 days if that’s what you asking. No, I never granted voluntary departure.
Type of parole Matters
The parole issue is not fully fleshed out from your posts. It depends on the type of parole you were granted and the status you had immediately before that. If you were out on bond then that was conditional parole and no good for adjustment. If you had an ordinary Advance Parole then that is OK for adjustment. It is unclear which type you had.
I would refer your attorney to the following case as a starting point (there is discussion on this topic and further cases referenced). I still have a problem understanding why the first I-130 and I-485 were denied. Was the first spouse a USC, LPR (greencardholder), or some other status? What reason was cited for the denial of the earlier case? Did USCIS issue an NTA based on the denied adjustment? What section of law was listed on the NTA? OR did ICE find you under some other circumstance? A workplace raid? Tracked you down for overstaying the visa? OR was it a Visa Waiver entry? You need to spell out an exact sequence of critical events.
Entry-
I-94 expired-
married 1st time-
(Was there any prior marriage for you or the 1st spouse or 2nd spouse?)
Something is not adding up.
Matter of CASTILLO-PADILLA, 25 I&N Dec. 257 (BIA 2010)
(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).
(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006).
The parole issue is not fully fleshed out from your posts. It depends on the type of parole you were granted and the status you had immediately before that. If you were out on bond then that was conditional parole and no good for adjustment. If you had an ordinary Advance Parole then that is OK for adjustment. It is unclear which type you had.
I would refer your attorney to the following case as a starting point (there is discussion on this topic and further cases referenced). I still have a problem understanding why the first I-130 and I-485 were denied. Was the first spouse a USC, LPR (greencardholder), or some other status? What reason was cited for the denial of the earlier case? Did USCIS issue an NTA based on the denied adjustment? What section of law was listed on the NTA? OR did ICE find you under some other circumstance? A workplace raid? Tracked you down for overstaying the visa? OR was it a Visa Waiver entry? You need to spell out an exact sequence of critical events.
Entry-
I-94 expired-
married 1st time-
(Was there any prior marriage for you or the 1st spouse or 2nd spouse?)
Something is not adding up.
Matter of CASTILLO-PADILLA, 25 I&N Dec. 257 (BIA 2010)
(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).
(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006).
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Jackolantern
Registered Users (C)
That looks like the source of your problem. If you overstayed by more than 180 days before the first I-485 was filed, you triggered the 3-year or 10-year ban with your departure thereby making you inadmissible, and being paroled back into the US doesn't resolve that.
ananga73
Registered Users (C)
Clarify
Did you enter the country on B2, overstayed, married and filed your petition, leave the country, and get paroled back in, application denied, put in removal proceedings, got married the 2nd time, and released out on bond? Please clarify and provide a clear timeline and sequence of events so we can understand what kind of parole you're referring to.
Did you enter the country on B2, overstayed, married and filed your petition, leave the country, and get paroled back in, application denied, put in removal proceedings, got married the 2nd time, and released out on bond? Please clarify and provide a clear timeline and sequence of events so we can understand what kind of parole you're referring to.
That is the most likely cause of the problem. He probably was unable to meet the requirements for a hardship waiver after triggering an unlawful presence bar.
More Details!
Thank you so much for your insights and contributions and I look forward to more comments and learn from your previous experience!
Timeline:
- November 14, 2003: Admitted to the United States for the first time on B2 visitor visa.
- May 16, 2004: My visa expired
- July 2, 2004: Got married to my first wife
- August 31, 2004: Applied for I-30 and I-485
- December, 2004: Interviewed with my first wife
- June 12, 2009: Paroled into the US after spending a month overseas pursuant to a pending I-130/485 petition.
- July 2009: Received a letter for another interview
- August 2009: Sent a request for another appointment due to family circumstances
- August 19, 2009: Divorced
- September 2009: the I-130/485 were denied
- June 2010: I was arrested by the CIS from my home and was put in removal proceedings under section 240 of the Immigration and Nationality Act. I spent one night in detention and released on $3000.00 bond.
- July 2010: got married to my girlfriend who I was dating for almost a year
- November 2010: my wife filed I-30 on my behalf at the USCIS
- My removal proceeding hearing was continued twice by the immigration judge till the USCIS rules on the I-130 petition
- September 21, 2011: My I-130 petition was approved
- September 29, 2011: filled I-485 with the immigration court
I have reviewed the Section 212 of the Immigration and Nationality Act which determines the inadmissibility of an alien applying for I-485. Giving the previous timeline I believe I don’t fall under any of the inadmissible categories specified in Section 212. Am I wrong? Did I miss anything?
Thank you so much for your insights and contributions and I look forward to more comments and learn from your previous experience!
Timeline:
- November 14, 2003: Admitted to the United States for the first time on B2 visitor visa.
- May 16, 2004: My visa expired
- July 2, 2004: Got married to my first wife
- August 31, 2004: Applied for I-30 and I-485
- December, 2004: Interviewed with my first wife
- June 12, 2009: Paroled into the US after spending a month overseas pursuant to a pending I-130/485 petition.
- July 2009: Received a letter for another interview
- August 2009: Sent a request for another appointment due to family circumstances
- August 19, 2009: Divorced
- September 2009: the I-130/485 were denied
- June 2010: I was arrested by the CIS from my home and was put in removal proceedings under section 240 of the Immigration and Nationality Act. I spent one night in detention and released on $3000.00 bond.
- July 2010: got married to my girlfriend who I was dating for almost a year
- November 2010: my wife filed I-30 on my behalf at the USCIS
- My removal proceeding hearing was continued twice by the immigration judge till the USCIS rules on the I-130 petition
- September 21, 2011: My I-130 petition was approved
- September 29, 2011: filled I-485 with the immigration court
I have reviewed the Section 212 of the Immigration and Nationality Act which determines the inadmissibility of an alien applying for I-485. Giving the previous timeline I believe I don’t fall under any of the inadmissible categories specified in Section 212. Am I wrong? Did I miss anything?
ananga73
Registered Users (C)
Hmm since you overstayed for less than 180 days, you are not subject to either the 3 or 10 year bar. Was the original I-485 denied based on fraud? Lets wait to hear from Bigjoe and Jackolantern.
Jackolantern
Registered Users (C)
The divorce occurred while the I-485 was still pending, so the I-485 had to be denied regardless of fraud or no fraud.
The overstay from May 2004 to August 2004 was far less than 180 days, so traveling after that wouldn't trigger the 3-year bar.
The tragic mistake here was letting the I-485 sit idle from December 2004 to July 2009 without filing WOM. If WOM had been filed in mid-2006 or 2007, the I-485 probably would have been approved before 2009 (and most importantly, before the divorce). And a 10-year card would have been issued since they would have completed 2 years of marriage in 2006, so divorcing in 2009 wouldn't affect it.
Admissibility vs. Inadmissibility
Ok! Another challenging questions my friends!
212(a)(6) states:
(6) Illegal entrants and immigration violators.-
(A) ALIENS PRESENT WITHOUT admission or parole.-
(i) In general.-An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
I was paroled before into the US after spending a month overseas pursuant to a pending I-130/485 petition. But the petitions were denied and I filed new ones after I remarried as I mentioned before. Do I still be admissible according to the 212(a)(6)? Or not?
Thanks much in advance!
Ok! Another challenging questions my friends!
212(a)(6) states:
(6) Illegal entrants and immigration violators.-
(A) ALIENS PRESENT WITHOUT admission or parole.-
(i) In general.-An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
I was paroled before into the US after spending a month overseas pursuant to a pending I-130/485 petition. But the petitions were denied and I filed new ones after I remarried as I mentioned before. Do I still be admissible according to the 212(a)(6)? Or not?
Thanks much in advance!
1. You were NOT arrested by USCIS, they don't have the authority of arrest. It was ICE.
2. You were released on bond. That was conditional parole and is disqualifying for adjustment purposes. See earlier post.
You cannot adjust and you have accumulated sufficient unlawful presence so that when you depart, you will face a re-entry bar. You might be able to get a waiver for unlawful presence. That determination is very fact specific and needs a professional legal assessment.
If you are offered voluntary departure, take it and don't miss the departure deadline. IF you request it early, an IJ can grant 120 days to depart. If you wait to the end of the Removal Proceedings, the IJ can only grant 60 days to depart. If you get Vol Dep and don't go or depart late,. you are subject to a 10 year bar.
As it stands now, you might be subject to a 3 year bar which could be waived. IF deported without any vol departure you are barred for 10 years but a waiver is available (they become easier the longer you wait within that 10 years before applying). Overstay a grant of voluntary departure and you will get deported and barred for 10 years with no waiver available.
You need to look at INA sections 212(a)(9)(B) and 240B among others.
No, no, and No. See a lawyer to confirm that. Do not procrastinate, act fast.
Jackolantern
Registered Users (C)
Why would there be a 3 year bar at this time? At the time of departure and reentry with advance parole in 2009, the I-485 was still active and there had been less than 180 days of unlawful presence (unless the I-94 issued in Nov. 2003 had an expiration date on or before Feb. 2004, thereby enabling over 180 days of unlawful presence to accumulate before the August 2004 I-485 filing).
ananga73
Registered Users (C)
I guess Bigjoe means the OP has been accumulating unlawful presence since September 2009 when the original I-495 was denied and 2010 when he filed the petition with his new wife. Not very clear though
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I AM JUST A LAYPERSON! I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE!
@OP
Because you have overstayed your tourist visa and left the country on Advance Parole you triggered the 10 year bar (assuming you overstayed by more than 1 year). Based on what you said, you were married in good faith the first time and I am guessing that your I130 & I485 were denied because you haven't attended the second interview. If your first marriage was in good faith you could try to reopen that case and adjust through that. It matters not that you are now divorced from your first wife. Other than that I doubt there are other options to adjust in-country. For cancellation of removal you need to have been in the US for over 10 years. You can leave the country and apply for a waiver at the consulate in your country. You will need to show, among other things, that if you are not admitted back to the US, your wife will suffer EXTREME hardship.
Please do not rush into taking any decisions and do not rely on message board answers. Consult one or more reputable lawyers!
@OP
Because you have overstayed your tourist visa and left the country on Advance Parole you triggered the 10 year bar (assuming you overstayed by more than 1 year). Based on what you said, you were married in good faith the first time and I am guessing that your I130 & I485 were denied because you haven't attended the second interview. If your first marriage was in good faith you could try to reopen that case and adjust through that. It matters not that you are now divorced from your first wife. Other than that I doubt there are other options to adjust in-country. For cancellation of removal you need to have been in the US for over 10 years. You can leave the country and apply for a waiver at the consulate in your country. You will need to show, among other things, that if you are not admitted back to the US, your wife will suffer EXTREME hardship.
Please do not rush into taking any decisions and do not rely on message board answers. Consult one or more reputable lawyers!
He was out of status from I-485 denial until being released on bond. He has unlawful presence that will trigger the bar.
Jackolantern
Registered Users (C)
Oh, you meant the bar would be triggered if he left the US now, not that the bar is already in effect.
Yes. That is actually his best option. He CANNOT adjust because his status prevents it as a matter of law (no discretion allowed).
He does not qualify for anything but voluntary departure at best.
Trying for a waiver of the 3 year bar that WILL BEGIN when he departs or waiting it out are his two best options. Any delay in starting the clock is uselessly delaying when he could lawfully obtain status and re-enter.
Ponder this scenario: IF he goes underground and is ordered removed anyway, blends into the landscape, and then 21+ years down the road if he has an adult USC son or daughter who gets an approved I-130 for him, he still could not adjust as an IR. Only at that point the bar is longer.
* This is a common scenario.