Interview Experience. Wife out of status
- Thread starter PaulK
- Start date
Seems that way. I checked it out. The law states that " B-1 or B-2 status are eligible to apply for a change of status(F1) but cannot enroll in classes until the change of status has been approved by the US Citizenship and Immigration Services (USCIS)".
So my wife violated her B1 status when she started classes in May 2001. She should have waited for he F1 to get aproved which happened on February 14th, 2002.
Our case is getting more and more complicated. The only hope (after the denial ) is to try to get I-601 waiver. I don’t see any other options at this time.
Any idea what’s I-601 successful rate?
So, CoS to F1 wasn't even approved until after she had already received her diploma? I am not passing judgments but this case has FAIL at many levels by both parties. Unfortunately, all this could be avoided by your wife not leaving US. But it's too late now.
I have very little first hand knowledge of I-601 waivers but in your case, I would encourage to file the waiver as the last resort, given the mistakes that USCIS made (approved status TWICE, F1 and then H4), which might have made you (and her) believe that she was in legal status. For this reason, an IJ might be more lenient towards your wife. However, YOU NEED A LAWYER TO GET THIS DONE.
I have very little first hand knowledge of I-601 waivers but in your case, I would encourage to file the waiver as the last resort, given the mistakes that USCIS made (approved status TWICE, F1 and then H4), which might have made you (and her) believe that she was in legal status. For this reason, an IJ might be more lenient towards your wife. However, YOU NEED A LAWYER TO GET THIS DONE.
I’ll be hiring an attorney. There is no doubt about that. I have already interviewed 2 lawyers and I’m not very happy with either. I want to make sure I’m represented by someone who knows his stuff. It seems like many mistakes were made by my previous lawyer. I want to make sure my future attorney is competent at least.
Being a lawyer is a craft. Finishing law school and passing the bar does not make one a good lawyer, and there are a plenty of “lawyers” out there looking to make a quick buck.
I’ll take my time.
In the meanwhile, any fresh ideas are welcome.
BTW , I make over $150K a year. My wife is a CPA and has a very successful business. We pay lots of $$$$$ in taxes each year. We have never been on welfare, always paid taxes. I haven’t even taken a single sick day off in the last 10 years. If the US government wants us to leave - So be it! I’m sure we will find happiness elsewhere.
Concerned4us
Banned
Check both AILA and Martindale to assist you in your search for an attorney.
Thank you for the referral. We live in Chicago and I‘d rather hire a local attorney who has a better understanding of local judicial system including IJs.
Jackolantern
Registered Users (C)
That pretty much guarantees the 601 waiver will be denied. Obviously you won't face extreme hardship if she left the US (being separated from your spouse may be a hardship, but not "extreme" hardship by USCIS standards). Hardship waivers that get approved are those where the US citizen is highly dependent on the immigrant, usually due to severe disability or disease, and thus would face death or greater illness if the immigrant spouse or parent left the US.
But anyway, 601 waivers are really a last resort only after all appeals have failed or you've given up on appealing further. So you're a long way before you seriously think of the waiver. For now, you have the following stages:
1) before denial, convince this IO that your wife did not have unlawful presence before taking that trip to Mexico. Find a lawyer ASAP to write a letter explaining that she was only out of status for the 187 days due to the F-1 D/S and all that, not unlawfully present. Get the lawyer to keep the letter to one page (with maybe a few more pages attached if quoting a regulation or USCIS memo or court precedent), not to get bogged down in 10 or 20 pages of legalese, which would result in your case getting denied or collecting dust for years because the IO gets too confused with it. This is not the stage to dive into extended legal arguments, although the lawyer might want to do that in order to rack up billable hours. The goal at this stage is to get the who IO reads it to understand and accept what is written.
2) If denied, file a Motion to Reopen. Note that the denial notice will typically say "there is no appeal", but you can still file a Motion to Reopen. The MTR should be still short and to the point, explaining why the denial was in error, as it will be IOs who read it, not judges. Note that a successful MTR usually means they put the I-485 back into pending status, not immediate approval; there may still be more months of waiting and a possible second interview. But MTR success is still good news, because if they accept it, the I-485 won't be denied unless they have another reason for denial.
3) If the MTR is denied, file an appeal with the Administrative Appeals Office (AAO) or Board of Immigration Appeals (BIA). BIA is where the lawyer can start to get into the long legalese. Note that there may be a couple of years before the case is heard.
4) If the appeal is lost, and you still think there are grounds for appeal, take it to Federal court.
5) If that fails, there are higher Federal courts, up until the Supreme Court!
6) If all the above fails, then you can look into the 601 waiver (although I have to warn that it is 99.999% hopeless for someone doing as well as you -- remember it is the US citizen who must feel extreme hardship, not the noncitizen who is deported).
I previously mentioned the possibility of the H-4 being considered invalid due the CoS being filed when she was out of status, and the old I-485 being considered frivolous based on that. While you should discuss this possibility with the lawyer, you don't want the lawyer to include arguments addressing that in the letters and motions, as USCIS has not (yet) taken that position, and bringing it up with USCIS could put ideas in their head. Right now, USCIS's only issue with this case is classifying the 187 days as unlawful presence instead of merely out of status.
And right now, you don't need the greatest lawyer who will take you all the way up the appeal chain. You just need one who can write the immediate letter to this IO, and an MTR if necessary. If anything, you should tell the lawyer that you don't plan to appeal with them, you just need this case to succeed right now so you can move ahead with your life. You don't want them to give a half-assed effort right now because they have it in the back of their mind that they can make more money by appealing later.
Last edited by a moderator:
Jacko.. like you mentioned about the H-4 being considered invalid, based on the fact that OP's wife was already in violation of her F1 status.
So, after all arguments are heard, is it possible that USCIS/IJ will find her accumulating unlawful presence since the day she violated her visitor status as she started school not only before the CoS to F1 was approved, but before she even applied for the CoS?
So, after all arguments are heard, is it possible that USCIS/IJ will find her accumulating unlawful presence since the day she violated her visitor status as she started school not only before the CoS to F1 was approved, but before she even applied for the CoS?
Last edited by a moderator:
I was digging through my 10 year old pile of immigration documents and I found RFE for my wife’s F1. It was dated January 21,2002 (7 days after completion of studies). We were asked to provide additional evidence regarding I-134. They wanted us to show more cash on hand.
At that time, we hired an attorney to respond. He explains in his response, that the greater part of her course of studies has already been completed and she has been in school since August 2001(no idea where he got the August date from).
So, I’d be surprised if our attorney thought that was a mistake. He wouldn’t have brought it up if it was.
The bottom line – we told the INS that my wife was in school prior to F1 approval. They knew about it and they approved her F1.
Jacko,
Thank you for taking the time to put such a long and thorough response. I believe I understand the legal path. I have scheduled an appointment with another attorney for Wednesday next week. Hopefully the IO will have a little patience and keep our file on her desk for a little longer.
I’ll let know what I find out
Thank you for taking the time to put such a long and thorough response. I believe I understand the legal path. I have scheduled an appointment with another attorney for Wednesday next week. Hopefully the IO will have a little patience and keep our file on her desk for a little longer.
I’ll let know what I find out
Jackolantern
Registered Users (C)
There is some speculative possibility of it; they can interpret the laws in different ways. But like I said, leave it to USCIS to come up with that on their own; the OP and his lawyer shouldn't put ideas in USCIS heads by arguing against that interpretation before USCIS has asserted or even thought of that position.
Hi guys,
I have an update.
We went to my wife’s school this afternoon. Unfortunately, it is impossible for them to alter her graduation date. However, they were able to give me a letter stating that school program was successfully completed on 01/14/2002 and the Annual Commencement date was on June 9, 2002.
I’m not sure if this will be enough for the IO grant an approval, but it is all we can get from the school at this point.
We will hold off for now and we will be discussing this letter with an attorney.
I have an update.
We went to my wife’s school this afternoon. Unfortunately, it is impossible for them to alter her graduation date. However, they were able to give me a letter stating that school program was successfully completed on 01/14/2002 and the Annual Commencement date was on June 9, 2002.
I’m not sure if this will be enough for the IO grant an approval, but it is all we can get from the school at this point.
We will hold off for now and we will be discussing this letter with an attorney.
Vizanuts,
I’ll have to disagree with you. My wife did not violate her B2 status.
The INS change regulations on B1/B2 to F1 COS back in 2002. “The Students who entered the US on a business or tourist visa will not be permitted to attend school until the BCIS (a.k.a. INS) has approved their change of status to F-1 or M-1. The change is directly related to the September 11th attacks and the BCIS (a.k.a. INS) approval of student visas for two of the hijackers to attend flight school in Florida.” My wife F1 was from 2001.
I knew something was not right. I couldn’t believe that my attorney at that time and the INS made multiple mistakes on the matter. Now I know why- the law was different. My wife did NOT violate here B2 status when she started school without F1 approval.
Hello guys,
I thought I should post with an update for all who are interested in our rather complex case.
We met with two attorneys. Of course, both had different opinions on the matter.
Anyway, we decided to go with attorney #2. She will argue two things
1. My wife did not accrue “unlawful presence” prior to her leave on AP. Because of her F1 D/S status.
2. Even if she did trigger the 3 year bar because of the 187 day of unauthorized stay, she had already served the ban while in the US. Her last exit was in July 2005, so the 3 year ban ended in 2008. My attorney had won a similar case, arguing that the ban could be served while in the US.
According to the lawyer, the next step (if argument is denied) is for the DHS to send my RFE asking for I-601 waiver before denying the case. I’m not very happy with this because the I-601 attorney fees are between $6K-$9K and we have very little chance of success. So it may take years before even get to a court room and it will cost us tons of money. We are strongly considering getting the hell out of the country if our case doesn’t get approved on the next step.
I thought I should post with an update for all who are interested in our rather complex case.
We met with two attorneys. Of course, both had different opinions on the matter.
Anyway, we decided to go with attorney #2. She will argue two things
1. My wife did not accrue “unlawful presence” prior to her leave on AP. Because of her F1 D/S status.
2. Even if she did trigger the 3 year bar because of the 187 day of unauthorized stay, she had already served the ban while in the US. Her last exit was in July 2005, so the 3 year ban ended in 2008. My attorney had won a similar case, arguing that the ban could be served while in the US.
According to the lawyer, the next step (if argument is denied) is for the DHS to send my RFE asking for I-601 waiver before denying the case. I’m not very happy with this because the I-601 attorney fees are between $6K-$9K and we have very little chance of success. So it may take years before even get to a court room and it will cost us tons of money. We are strongly considering getting the hell out of the country if our case doesn’t get approved on the next step.
Jackolantern
Registered Users (C)
The 3-year ban can be served inside the US? That's funny! Then what would be the purpose of the ban? How in the world did the attorney win that case? Was that a court case, or did USCIS decide that one before it went to court? If it wasn't a court decision, it may not have much influence on this case, as USCIS is very inconsistent and I'm sure they've denied other cases that tried to assert the same thing.
Another issue is how similar that case was to your wife's own. Your wife's last entry was with Advance Parole, and entering with Advance Parole is not considered as being "admitted" to the US, which means different nuances of the law would apply to her (as opposed to someone whose last entry was with a visa).
But anyway, that should be unnecessary. It should be easy enough to win on point 1 regarding F-1 D/S.
Don't bother with the 601 waiver at this stage; let them deny it if they disagree with your lawyer's points, and you can then file an MTR to challenge the F-1 D/S issue. And then appeal after that if necessary. Remember if she applies for the 601 waiver she is effectively admitting that she is inadmissible. So it could be dangerous to go that route before the motions and appeals have been exhausted.
Another issue is how similar that case was to your wife's own. Your wife's last entry was with Advance Parole, and entering with Advance Parole is not considered as being "admitted" to the US, which means different nuances of the law would apply to her (as opposed to someone whose last entry was with a visa).
But anyway, that should be unnecessary. It should be easy enough to win on point 1 regarding F-1 D/S.
Don't bother with the 601 waiver at this stage; let them deny it if they disagree with your lawyer's points, and you can then file an MTR to challenge the F-1 D/S issue. And then appeal after that if necessary. Remember if she applies for the 601 waiver she is effectively admitting that she is inadmissible. So it could be dangerous to go that route before the motions and appeals have been exhausted.
Last edited by a moderator:
Jacko,
I was surprised by her comments too but I started to dig around the web and found this article(has a link to the actual explanation letter received from the director of CIS). My attorney may have a point after all. Let me know what you think.
Here is the article http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus2008982149&Month=&From=Menu&Page=1&Year=All
Oh, and also, the attorney believes that MTR is a waste of time. I’m not sure if she tries to get me to the waiver stage so she can charge more or she doesn't actually believe that we can win by filing MTR
I was surprised by her comments too but I started to dig around the web and found this article(has a link to the actual explanation letter received from the director of CIS). My attorney may have a point after all. Let me know what you think.
Here is the article http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus2008982149&Month=&From=Menu&Page=1&Year=All
Oh, and also, the attorney believes that MTR is a waste of time. I’m not sure if she tries to get me to the waiver stage so she can charge more or she doesn't actually believe that we can win by filing MTR
Jackolantern
Registered Users (C)
Interesting! That goes back to the paroled vs. admitted distinction that I was talking about. The letter specifically mentioned parole, and that was how your wife reentered the US.
Regarding MTR being a waste of time, maybe the lawyer is saying that because MTR doesn't make much money for them. MTR is typically just a one or two-page letter and lawyers will do it for less than $1000 where there is an easily identifiable USCIS error, which seems to be the case here. And MTR's are usually decided within 1 or 2 months. If you can pay a lawyer $500 and get the denial overturned in 1 month, surely that is not a waste of time for you, even if the lawyer isn't excited about getting only $500.
That's why I said if you're going to talk to a lawyer about the MTR, tell them straight out you're only doing the MTR with them and that's it. Tell them if the MTR fails you will leave the country or find another lawyer. You don't want them dissuading you from the MTR, or doing a half-assed job of the MTR with the expectation that after the MTR fails they can make $thousands from expensive appeals.
Regarding MTR being a waste of time, maybe the lawyer is saying that because MTR doesn't make much money for them. MTR is typically just a one or two-page letter and lawyers will do it for less than $1000 where there is an easily identifiable USCIS error, which seems to be the case here. And MTR's are usually decided within 1 or 2 months. If you can pay a lawyer $500 and get the denial overturned in 1 month, surely that is not a waste of time for you, even if the lawyer isn't excited about getting only $500.
That's why I said if you're going to talk to a lawyer about the MTR, tell them straight out you're only doing the MTR with them and that's it. Tell them if the MTR fails you will leave the country or find another lawyer. You don't want them dissuading you from the MTR, or doing a half-assed job of the MTR with the expectation that after the MTR fails they can make $thousands from expensive appeals.
Jacko,
Thank you for the advice on MTR. Unfortunately the majority of lawyers are driven purely by $$$. Ethics and lawyers don’t go together. The lawyer I went to , after realizing that I’m under time constraints charged me $2000 to write that letter with the two arguments I posted earlier. She kept saying how honest she was. Anyway, I don’t mind paying $2K if it works. I may be talking to a different attorney about the MTR.
I’ll keep you updated.
Thank you for the advice on MTR. Unfortunately the majority of lawyers are driven purely by $$$. Ethics and lawyers don’t go together. The lawyer I went to , after realizing that I’m under time constraints charged me $2000 to write that letter with the two arguments I posted earlier. She kept saying how honest she was. Anyway, I don’t mind paying $2K if it works. I may be talking to a different attorney about the MTR.
I’ll keep you updated.
