I-130 Interview on Monday; Spouse Out of the Country (10-year ban)

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loko12345

Registered Users (C)
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, I'm 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? I'm 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.
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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?
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Did you also file an I-485? Normally there wouldn't be an interview inside the US if the I-130 was filed without the I-485. Consular processing doesn't 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 you're jeopardizing your own green card by living abroad for an extended time?
 
Jackolantern said:
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 wouldn't be an interview inside the US if the I-130 was filed without the I-485. Consular processing doesn't 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 you're jeopardizing your own green card by living abroad for an extended time?
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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 don't know if they'll 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 one's spouse is not considered extreme hardship ... extreme hardship is for situations like where one's 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?
 
Ouch, this does not sound promising.

She has many years left until ban is lifted (8 years or so). I will go to the interview on Monday hoping for the best (and hopefully obtain some guidance from immigration), but understanding the reality that you have described. There is not much else to do at this point I suppose except show up to interview. I will report back on Monday.

Thanks again.
 
Ask them to approve the I-130, and tell them once it's approved you will file I-824 to transfer the case to a consulate in her country.

Going forward, I would advise you to spend enough time in the US to obtain US citizenship. Once you are a US citizen you'll be able to live abroad as long as you want without jeopardizing your status, and there won't be a 3-4 year lag from your I-130 filing (if you have to file a new one) to her consular interview (but the 10 year ban remains in effect).
 
Jackolantern said:
Ask them to approve the I-130, and tell them once it's approved you will file I-824 to transfer the case to a consulate in her country.

Going forward, I would advise you to spend enough time in the US to obtain US citizenship. Once you are a US citizen you'll be able to live abroad as long as you want without jeopardizing your status, and there won't be a 3-4 year lag from your I-130 filing (if you have to file a new one) to her consular interview (but the 10 year ban remains in effect).
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Thanks very much for the advice.

1. My plan is to go in on Monday armed with as much documentation as possible to get the I-130 approved. I'm bringing joint bank account statements, wedding certificate, pictures of us together, letters from family and friends, etc...

Question: Is there anything else I should be bringing to the interview? Obviously, they are going to ask why my wife is not with me at the interview; I will explain to them that she is unable to enter due to the 10-year ban.

2. Assuming I am successful and the I-130 is granted, I will request that the case is transferred to the consulate in the relevant country.

Question: Assuming all of this happens and the case is transferred to the consulate, what happens at that point? If the visa application gets approved, then I'm assuming there is a visa interview at the relevant consulate? Further assuming that goes well, and the immigrant visa is granted, how does the 10-year ban play into this? It's sort of like a catch-22: My wife would have an approved immigrant visa, which upon entry to the U.S., would make her a permanent resident, however on the other hand, she can't enter the U.S. because of the 10-year ban. Logically, I would think the 10-year ban issue would be addressed BEFORE the visa interview at the consulate, or at a minimum before the immigrant visa is granted, no? I'm just trying to understand the process.

3. I am eligible to apply for U.S. Citizenship later this month. My only concern is that my criminal matter was in the past 5 years, and I've read that this can be an issue in the eyes of immigration and being granted citizenship. The criminal matter was not prosecuted and the charges were dismissed, still the arrests, etc...are on my record, and I did commit the act, I will not deny that to immigration. I've even read that immigration can, during the citizenship application process, decide to put me in removal proceedings and revoke my green card because of the criminal matter. That would be a disaster. That's why I'm thinking twice about filing for citizenship. I know and understand that you are not a lawyer, but any insights would be appreciated.

Thanks very much for all of your help!
 
Here is an update: The I-130 got approved!

Although this is a good first step, I know there is still a long way to go.

I will be eligible to file for citizenship at the end of this month, should I go ahead and do that? Should I also simultaneously submit the I-824 to transfer my wife's case to consular processing?

Lastly, do we need to do anything regarding the 10-year ban right now, or is that for later on in the process?

Many thanks!
 
You cannot do anything until you are a citizen. Check the immigrate2us forum. It is comprised of individuals in circumstances similar to yours.
 
loko12345 said:
Here is an update: The I-130 got approved!

Although this is a good first step, I know there is still a long way to go.

I will be eligible to file for citizenship at the end of this month, should I go ahead and do that? Should I also simultaneously submit the I-824 to transfer my wife's case to consular processing?

Lastly, do we need to do anything regarding the 10-year ban right now, or is that for later on in the process?

Many thanks!
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A waiver may not be filed until she applies for the Immigrant Visa. If and when you naturalize, you can "upgrade" the petition to IR of a USC. IF she can prove extreme hardship to you or another qualifying USC or LPR relative, a waiver is possible.

Read about the I-601 processing and rates of approval in this Q&A at: http://www.uscis.gov/USCIS/Outreach...agements/IO-IASB Meeting Notes 01 26 2011.pdf

As a USC you could live abroad and file a new I-130 abroad in the future when the 10 year ban is coming to an end.
 
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