Wife has been in USA for 26yrs, VD 17yrs ago! (I-130 Approved 04.23.2012) Please help

[FLN41025]

Hello,

I have a few questions if you don't mind. I am a USC and our lawyer has stiffed us and taken our filing money and retired. We find it very difficult to reach him and have threatened him with a law suit if he does not return our filing fees. We don't even want the money for the services that he was supposed to give us and didn't just for the filing fees that he never did anything with. I was able to get the I-130 filed finally and we just had our interview yesterday (04.23.2012) and we were told at that interview that we would be receiving an approval letter in about 2-3 weeks for the I-130.

She entered as a minor with her mother (who eventually received her papers, through another family member) but she was not able to get her papers through her mother. Unfortunately my wife was given Voluntary Departure when she still in High School (1995 at the age of 17) and never left. Through the course of working with the same lawyer nothing was ever done (yes this has been going on since she was 5 years old with the same lawyer). After not getting anywhere with him for many years I took action on my own.

I have a couple of questions starting with the (I-246 Stay of Removal). First of all are there any suggestions of if I should file this? Second part to the I-246 should I wait to receive the approval of the I-130 to attach to it or should I file it now so it has a chance to make it through the system instead of waiting the extra two weeks?

The next question is what should I do next. I am very estute to this case as I have been dealing with it passionately for many years. I trust myself more than lawyers any more but know that I do not have all the answers as this is not my field of expertise.

This is what I was planning (thoughts, suggestions, comments appreciated as long as they are relevant, thank you.)

I-130 ~ Meeting Set
Meeting Attended
Petition Approved

Next Steps Questionable ???
I-246 If I should file and when
I-485 Should be filed but not sure when/ along with $1,000 penalty
I-601 Possibly should be filed with I-485
I-765 Will need to be filed but not sure if it should be filed with I-485 & possibly I-601
I-290B Not sure if I need to file this to reopen or reconsider the original case.


Thank you to all in advance.

 

[BigJoe5]

Hello,

I have a few questions if you don't mind. I am a USC and our lawyer has stiffed us and taken our filing money and retired. We find it very difficult to reach him and have threatened him with a law suit if he does not return our filing fees. We don't even want the money for the services that he was supposed to give us and didn't just for the filing fees that he never did anything with. I was able to get the I-130 filed finally and we just had our interview yesterday (04.23.2012) and we were told at that interview that we would be receiving an approval letter in about 2-3 weeks for the I-130.

She entered as a minor with her mother (who eventually received her papers, through another family member) but she was not able to get her papers through her mother. Unfortunately my wife was given Voluntary Departure when she still in High School (1995 at the age of 17) and never left. Through the course of working with the same lawyer nothing was ever done (yes this has been going on since she was 5 years old with the same lawyer). After not getting anywhere with him for many years I took action on my own.

I have a couple of questions starting with the (I-246 Stay of Removal). First of all are there any suggestions of if I should file this? Second part to the I-246 should I wait to receive the approval of the I-130 to attach to it or should I file it now so it has a chance to make it through the system instead of waiting the extra two weeks?

The next question is what should I do next. I am very estute to this case as I have been dealing with it passionately for many years. I trust myself more than lawyers any more but know that I do not have all the answers as this is not my field of expertise.

This is what I was planning (thoughts, suggestions, comments appreciated as long as they are relevant, thank you.)

I-130 ~ Meeting Set
Meeting Attended
Petition Approved

Next Steps Questionable ???
I-246 If I should file and when
I-485 Should be filed but not sure when/ along with $1,000 penalty
I-601 Possibly should be filed with I-485
I-765 Will need to be filed but not sure if it should be filed with I-485 & possibly I-601
I-290B Not sure if I need to file this to reopen or reconsider the original case.


Thank you to all in advance.

The failure to depart is an issue to address before filing anything else. Some additional research is needed but as a stating point see:

Matter of GAMERO, 25 I&N Dec. 164 (BIA 2010)

(1) Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted.

(2) Where the Immigration Judge did not provide all the advisals that are required upon granting voluntary departure and the respondent failed to submit timely proof to the Board that a voluntary departure bond had been posted, the record was remanded for the Immigration Judge to grant a new period of voluntary departure and to provide the required advisals.

*********************************

Additionally, the law (statute and regulations) have changed over time so you need to dig up what the actual law stated at the time of her grant of voluntary departure.

It may be necessary to correctly file motions in order to get the right official to have jurisdiction to reopen the case and vacate the voluntary departure, terminate proceedings, and THEN apply for adjustment of status. Whether the authority to accept an application for adjustment will be within the jurisdiction of an IJ or USCIS depends on facts that have not come into being yet. As things stand right now she CANNOT file an I-485 with anyone because she failed to voluntarily depart.

It is unclear if the BIA would have to grant a motion and remand the case or if the IJ still has jurisdiction based on her specific facts and the old laws.

 

[FLN41025]

What about the LIFE Act?

The failure to depart is an issue to address before filing anything else. Some additional research is needed but as a stating point see:

Matter of GAMERO, 25 I&N Dec. 164 (BIA 2010)

(1) Pursuant to 8 C.F.R. § 1240.26(c)(3) (2010), an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted.

(2) Where the Immigration Judge did not provide all the advisals that are required upon granting voluntary departure and the respondent failed to submit timely proof to the Board that a voluntary departure bond had been posted, the record was remanded for the Immigration Judge to grant a new period of voluntary departure and to provide the required advisals.

*********************************

Additionally, the law (statute and regulations) have changed over time so you need to dig up what the actual law stated at the time of her grant of voluntary departure.

It may be necessary to correctly file motions in order to get the right official to have jurisdiction to reopen the case and vacate the voluntary departure, terminate proceedings, and THEN apply for adjustment of status. Whether the authority to accept an application for adjustment will be within the jurisdiction of an IJ or USCIS depends on facts that have not come into being yet. As things stand right now she CANNOT file an I-485 with anyone because she failed to voluntarily depart.

It is unclear if the BIA would have to grant a motion and remand the case or if the IJ still has jurisdiction based on her specific facts and the old laws.

What about the LIFE Act?