I was in the US for 7 years and got married to a US citizen recently. I was on a F1 student visa with d/s on the i-94. I fell out of status, got married and had a baby. He was a permanent resident when we met and got married shortly before he became a citizen. I left just before he became a citizen.
He has just filed the i130 for me and wonder if I would be subject to a bar. I was never been in deportation proceedings and was never informed by any official.
Please assist or clarify my situation.
thanks
If out of status over 180 days but less than a year, the bar is 3 years. Unlawful presence over a year and the bar is 10 years. An I-601 waiver is a possibility b ut requires a high burden of proof. I have been looking at the I-601 waiver appeals decisions from AAO on
www.uscis.gov on laws tab, Administrative Decisions and see a slight trend of more leniency. Do not give up hope BT do not assume that a waiver would be granted.
SEE:
http://www.uscis.gov/err/H6 - Waive...ecisions_Issued_in_2010/Aug052010_04H6212.pdf
"A section 2 12(a)(9)(B)(v) waiver of the bar to admission resulting from section 21 2(a)(9)(B)(i)(II) of the
Act is dependent first upon a showing that the bar imposes an extreme hardship to the citizen or lawfully
resident spouse or parent of the applicant. Hardship the applicant himself experiences upon removal is
irrelevant to a section 212(a)(9)(B)(v) waiver proceeding. The AAO also notes that the record contains
several references to the hardship that the applicant's child would suffer if the applicant were denied
admission into the United States. Section 212(a)(9)(B)(v) of the Act provides that a waiver is
applicable solely where the applicant establishes extreme hardship to his citizen or lawfully resident
spouse or parent. Unlike a waiver under section 212(h) of the Act, Congress does not mention extreme
hardship to United States citizen or lawful permanent resident children. In the present case, the
applicant's wife is the only qualifying relative, and hardship to the applicant's child will not be
considered, except as it may cause hardship to the applicant's spouse. Once extreme hardship is
established, it is but one favorable factor to be considered in the determination of whether the Secretary
should exercise discretion. See Matter of Mendez, 2 1 I&N Dec. 296 (BIA 1996)."
