In a tight spot

[sglover]

No kidding, am I in a tight spot.
Here's the story, thanks for baring with me:
I met my spouse over the internet 5 years ago. We chatted over the net for the next year before we decided to meet face to face. I am from Scandinavia and she lives in mid-US. To make a long story short, everything went hunky dory. I went back home over christmas and came back to the US in Jan. 2000 on a visa waiver. NO intention to marry .... but, We got married in March of that year and we did all my medical tests over here. Time passed on, as we had (and still do) little money to live on, so saving up for all the immigration papers wasn't easy. My visa expired in April 2000, so needless to say, I have overstayed quite a bit. BUT; lawers we talked to advised not to leave the US because, now since we were married, it would only leave to trouble getting back. Also, a lady at the medical center that took my tests decided to keep all my records until I could file the papers, well, when we were ready to file them I called her work only to find that she had quit. So, we spent the next months hunting her down (and we finally got my medicals back). So that contributed to my overstay also. BUT - here's the bomb. Our marriage is in trouble. The last couple of months havn't been that good and my spouse is really making me feel uncomftable at times. We are both starting to doubt the whole thing. My question is, what will happen to me if I decide to leave the US and HOW CAN I do it, safely? Since I don't have a ssn or anything I find it hard to imagine I can waltz up to an airliner and say "hey, can I have a one-way ticket?"
I know, might be a weird question but ... anyway, thanks for whatever help I get.

 

[sglover]

Yes, I still have the waiver and also a passport. But last time I left I didn't give it (the waiver) back until I reached my home country. But would there be any further complications (like, do I have so sit for days in detention or something)?
Thanks.

 

[bohica]

hi, Joe can you explain how this 3 or 10 year bar is institued?. I see the charge as unlawful presence under 212 (a)(9)(B)(i) and do not understand how this is in effect.

If they overstay and it is found at the POE and CBP sends the subject for a 240 hearing under the unlawful presence charge i can see it implemented by the judge.but other then that who determined that he barred if he comes back to the U.S.?

Also it would be easier for CBP do a expedited removal for 7a1 and return him and have him barred for 5 years then to send him to the judge for a unlawful presence charge.

and sglover,are you in AOS right now? if so i believe you need a i-512 parole.

thanks

 

[bohica]

Ok,from what i understand is that if a person is inadmissible due to any 212 charge a CBP officer can offer him/her a i-275 withdrawal and let him/her return to their country with no bar,just having their visa canceled. at that time the alien could have the option of going to the immigration judge to determine there removal. this could happen for any charge under 212.

Now Also if there was any offense commited as a 6C or 7 under INA 212, the CBP officer has the option of removing the alien under expedited removal.there is a 5 year ban on the alien returning to the U.S. with this type of removal and no option to see the immigration judge.

so you see,i dont see how there is a ban on the alien under 9b (unlawful presence) without having the immigration judge rule on that ban.sure the CBP officer could set him up for the hearing but wouldnt the judge have to decide on the ban?. or is it a consular officer would not issue a visa for that specified time period?

now if he got married to a usc and adjusted status under the vwpp program,is he now in AOS and require a i-512?

I know you cannot change your status under the VWPP program.but i believe the only status you can adjust your staus to is CR1 or IR1.

correct me if i am wrong here.

 

[sglover]

Interesting reads, but I don't have any of those forms or see the need to use them, as I probably wouldn't be returning. But would I be put in detention/jail or some other unpleasant place before I actually get to leave the country? Will the cuff me at the airport, so to speak?

 

[bohica]

Originally posted by JoeF
Unless that person enters or tries to enter under the visa waiver rules. With the visa waiver, you explicitly waive your rights to a hearing before an immigration judge.

That is true,but what i was talking about was the 212(a)(9)(b)(i) section of the INA which states the 3 or 10 year bar for unlawful presence.and how this is implemented on visa or vwpp overstays.sure they could be eligible for the ban but who implements it? the CBP officer cannot Ban somebody for 9b at the POE.he can ban using expedited removal for 6c and 7 series for 5 years to start,but not for 9b which is what you describe.which is why i ask if a judge is required?

Originally posted by JoeF
The ban is automatic. No ruling is necessary. Maybe you think about students who are admitted with D/S on their I-94s. In that case, a judge in fact has to rule before the period of unlawful presence starts. But for all other cases, the period of unlawful presence starts automatically with the expiration date on the I-94 or I-94W.
[/B]

true it starts at the end of your I-94 expiration date,but i think i described the ban above.also if a person applies for EOS/COS or AOS. the date you started that action stops the unlawful presence you describe until a decision is made for EOS/COS or AOS

Originally posted by JoeF
I don't get that. Overstays are forgiven only once a person married to a US citizen is a PR, not while AOS is pending. There are lots of people who found that out the hard way. What is "i-512" anyway? Never heard of it.
[/B]

An I-512 is an Advance Parole form for leaving the U.S. while Adustment of Status is pending. If you leave without it,you basically self deport yourself.

Originally posted by JoeF
The law clearly states that immediate relative of US citizens who entered on the visa waiver are eligible for AOS (see 8CFR245.)
[/B]

I dont disagree with that.

correct me if i am wrong.

 

[bohica]

Originally posted by JoeF
You are wrong on the concept. The ban is automatic. The officer at the POE just enforces it. This has nothing to do with expedited removal. Removal is only possible if a person is in the US, which, at the POE, a person is not.
A person who uses a visa (as opposed to a visa waiver) can challenge the enforcement of the ban by requesting a hearing before an immigration judge, but that is not a prerequisite.

Ok,if the ban is automatic how is CBP officer at the POE enforcing and returning the alien?

And also there is a "Expedited Removal" at the POE which relates to 235 (b)(1) of the INA. hers a link from 8CFR to explain

http://uscis.gov/lpBin/lpext.dll/in...mplates&fn=document-frame.htm#slb-8cfrsec2353

Originally posted by JoeF
Huh? AP is the I-131.
From http://uscis.gov/graphics/formsfee/forms/i-131.htm
"This form is used to apply for a Travel Document, reentry permit, refugee travel document or advance parole."
And in this context, AP doesn't help with circumventing the ban. [/B]

Yes, thats the form you apply with.but the form you recieve on approval is the I-512.if your in AOS and leave the U.S. and come back without the I-512 your in a heap of trouble at the POE.

 

[bohica]

Ok, if a CBP officer is going to refuse admission for that charge, how is he going to refuse entry,with a I-275 withdrawal,expedited removal, I-160?

I mean he has to fill out the paperwork in order for him to be removed and it has to concur with the appropriate section of law.that is the question i am asking of you. I agree that a person is inadmissible under 212(a)(9)(b)(i) and a bar is there for that charge,but how do you implement it without setting him up for the immigration judge?

I work for CBP and deal with these cases everday.thats why i want to clarify this situation in case i am wrong in this respect.

and yes INA 235 (b)(1) is the section of law that gives the CBP officer the power to perform Expedited removal.i just dont think you read far enough into it.heres the section thats relevant.


(i) In general.-If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7), the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution.

 

[bohica]

I have read many replies to people in forums about them being told they were barred for such amount of time and that they were that they would just be turned around without being able to see a immigration judge.that could be the case if they were determined to be under 212 6c or 7 series and would have a mandatory 5 year bar.

But the fact remains that if it was under any other 212 charge you could at the discretion of CBP be allowed to withdraw your application for admission (I-275) and there the alien can have a judge decide his case or let the CBP officer return him to his country.this includes unlawful presence.

Or the CBP officer could set the alien up on a 240 hearing to see the immigration judge(which is what i think would happen).and the judge would determine the outcome.

I do not look to forums for legal advice,i just wanted you to clarify why if they had a bar and they are coming to the U.S. they would be turned around with just a stamp in there passport and not be able to see the judge.

Ohh,and a I-160 is used for turning around canadians at the POE.and that could be used for pretty much any 212 violation.its kindof like a I-275.also VWPP refusal cannot be allowed to see the judge also,its a turnaround and they will require a visa on the next trip to the U.S.

And yes i agree that nothing discussed here has any legal value.

 

[bohica]

Originally posted by JoeF
Ok, I grant you that. But the judge would decide on the inadmissibility. The judge would not decide on the ban, he would basically just rule that the person is inadmissible because of the ban. That's what I meant with the ban is automatic. And, since that's such a sure outcome, I guess most people who are faced with this would rather go with the voluntary withdrawal of the application for admission.

Thats true,the judge would decide if the were forced to go to a 240 hearing,or the can decide themselves to go to the judge if the were allowed to withdraw there application for admission.its a courtesy by CBP not a right.

Now onto the Expedited Removal explanation.i would imagine that a person who overstayed for more then 6 months (instead of sending him to the judge for 9b,unlawful presence) could be interpreted to be a possible immigrant on the next trip into the U.S. and be expeditiously removed from the U.S. under 212(a)(7)(a)(i) depending on the circumstances. Because the alien has the burden of proof on him to explain that he is not a immigrant. therefore he could be removed and have a 5 year bar with no option to see the judge.

Originally posted by JoeF
Well, as I said, I luckily never had the "opportunity" to experience this first hand. The posts in newsgroups that I read usually say that people chose voluntary withdrawal. And the statistics seem back that up:
http://groups.google.com/groups?hl=...Mg.351136@c01read03-admin.service.talkway.com
As for the stamp., see, e.g., http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&oe=UTF-8&selm=80aucr$5b6$1@nnrp1.deja.com
It seems there is a stamp when voluntary withdrawal is chosen. [/B]

You are correct,the withdrawal is much better but totally at the discretion of CBP.yes the is a stamp on the passport and a stamp to cancel the visa.but there also is forms to fill out in the process.and we give the alien a copy of the I-275.

And yes i agree that nothing discussed here has any legal value.

 

[sglover]

Originally posted by JoeF
No. If you filed an I-485, that is. Because then you are in status, i.e., you are legally in the country. Previous overstays are irrelevant in your case as long as you are in US. They become relevant, by resulting in the ban, once you leave the country.
If you didn't file an I-485, you would be illegal, and if they found out, they could of course start deportation proceedings, which could mean holding in a deportation jail.

Hmm...? We did file 1 form (can't remember what nr. it was but it wasn't adjustment of status, I think it was the immediate relative one [$90], a lawyer said we could go ahead and file it while we save up money for the AOS form). To avoid any detention time (or whatever you would call it), would you suggest filing the AOS form, then leave the country? Would that work? Or...what would you suggest? (I realize you're not a lawyer but appreciate your comments!) Or can they find out if I would buy a ticket and detain me?

 

[bohica]

Sg,i myself believe you probably only filed a I-130 and not a 1-485 so your you are then not in status then and a overstay on the VWPP program.you will have to obtain a visa from the consulate in order to legally obtain entry into the U.S. and tell them about your situation so/if they give you a visa,they would have to annotate it with the appropriate waiver for your inadmissibily if they so decide.

Other then that i see no reason why you could not return home woth your passport.

but like i said before,nothing discussed here has any legal value.

 

[sglover]

Originally posted by bohica
Sg,i myself believe you probably only filed a I-130 and not a 1-485 so your you are then not in status then and a overstay on the VWPP program.you will have to obtain a visa from the consulate in order to legally obtain entry into the U.S. and tell them about your situation so/if they give you a visa,they would have to annotate it with the appropriate waiver for your inadmissibily if they so decide.

Other then that i see no reason why you could not return home woth your passport.

but like i said before,nothing discussed here has any legal value.

Pardon me, but now I'm confused.
Yes, it was a I-130 that was filed. But I want to leave the US, I don't care about re-entering.

 

[bohica]

Originally posted by JoeF
For a lot of these things, it can boil down to the mood of the officer. I have experienced officers where I really had to constrain myself to avoid getting in an argument... I knew that I would have been at the losing end.
I have noticed, however, that they are more relaxed when I show my GC. I was really surprised when I got a "welcome back" from one officer.
Of course, I'm more relaxed as well. [/B]

True,in my experience it depends alot on the circumstances. for instance if an alien comes in with a valid I-797 petition lets says for a H1-B,and the visa was just recently expired and the alien did not know to get a valid visa.We could technically remove him/her from the U.S. under expedited removal for 212(a)(7)(B)(II) Nonimmigrant not in possession of a valid nonimmigrant visa.

But if the circumstances dictate,they would probably give a I-275 withdrawal or even a I-193 waiver for the alien (which costs $195.00) and allow him into the U.S.

As for a permanent resident,as long as they live in the U.S. and dont have a permanent residence overseas.they should have no problem entering the U.S. (but thats a different discussion there).

CBP is just enforcing the laws currently in place by congress.in my opinion they are very considerate about the circumstances of every alien.

 

[bohica]

Customs and legacy INS are intergrated now.that my be the reason he went through your luggage.it could have been for a customs related matter or for security or immigration reasons.

I myself have seen alot more USC's have their luggage searched because of custom declarations or security matters then aliens.so its nothing new.as for the tirade at JFK you mentioned, it more the likely was attitude problem that should have been discussed and resolved with a supervisor.

My coworkers have a background of many nationalities and are very fair and impartial in their investigations and decisions. Therefore i believe yours was a unfortunate and isolated incident and if it happens again i would notify their supervisor.

 

[sglover]

Originally posted by JoeF
Well, a lot of the discussion in this thread ended up noting that if you later want to travel to the US, e.g., on a vacation, or for a business you may be working for later in your home country, you would have problems. And given that a lot of businesses nowadays operate international, it is very well conceivable that a job you take in your home country may require you to travel to business meetings in the US. Which, with your overstay, you can't do.
Leaving shouldn't be a problem. You just buy a ticket, show your passport to the airline personnel, they take out the I-94W, and give you a boarding pass, and you board the plane. There are no exit controls.

So, if I end up getting a ticket and they ask for my passport what will they do when they see my waiver expired a couple of years ago? Nothing?
I'm just worried about getting detained or someting like that and I'd like to be prepared.

 

[sglover]

Originally posted by JoeF
Of course not. It is airline personnel who takes the I-94W, not USCIS.

So they wouldn't call someone up and say something like: Hey INS, we got an issue here!

 

[sglover]

Originally posted by JoeF

What USCIS does with the I-94s is not quite clear. Eventually, they are entered in their computer system, and USCIS would then notice that you overstayed. But, given the dismal state of USCIS, with delays, personnel shortages, and general mismanagement, they usually take several months to enter the data into their system.

Thanks for the replies.