Moderation starts.

laurel(P) Hello, everyone. I am back from Disneyworld. I did miss two chats this month - one for my lecture in Miami and one for our family vacation. This is unusual. I do not expect to miss any more chats for some time.

laurel(P) As some of you may have discovered, yesterday' scheduled Stakeholders' Meeting with USCIS was cancelled. The meeting, which was to be open to the public, was supposed to be in regard to the planned changes in I-601 filing, known as "Lockbox Filing". At this time it is not known why the public meeting was abruptly cancelled or when a new meeting may be scheduled.

laurel(P) I do not know whether the cancellation of the meeting means that plans for Lockbox filing have changed in some way. At this time we still anticipate that it will commence sometime later this year or early next year, POSSIBLY as early as November. It is possible that the meeting was cancelled for the simple reason that a key participant from the government had a stomach virus. We just don't know.

laurel(P) Anyway, on to the questions.

canadexan(Q) I'm sure it was well deserved! All work and no play drives people mad!

laurel(A) I was starting to have some medical symptoms of overwork, so it was good to get away for a whole week.

TSK(Q) Welcome back! I hope that you had a wonderful trip/birthday.

laurel(A) I did, thanks.

TSK(Q) from catratcha: My husband's 601 case was approved in Honduras Aug. 30th. We had our interview Aug 16th 2010. Someone else from Honduras said they recently made the applicant pay the visa application fee again before printing the visa in his passport, b/c more than a year had passed. Is it true that the embassy can make you pay the visa application fee again? I thought I read that USCIS forms and fees are not paid twice, only if you do not make contact about your case within a year and then you have to resubmit & pay everything. Thanks so much.

laurel(A) You are only supposed to have the pay the immigrant visa fees again if you got a denial on your waiver and want to re-file. Now that they are allowing people to re-file and have their new consular interview after an approval, I expect that people in that situation only will need to pay the immigrant visa fees again after waiver approval. Otherwise, you should not be asked to pay the immigrant visa fees again after waiver approval. Given that we are talking about nearly $500, I think it's worth fighting with the consulate on this one.

laurel(P) Remember, consular officers are human and they make mistakes. Do not take everything they say or do as the gospel truth.

TSK(Q) from mistiful2001: Haveing trouble with nvc. Our lawyers say that nvc has all our paperwork and that case has been forwarded to consulate for a interview date and that we are in queue at consulate for interview. When i call nvc to talk to customer service they say they do not have all our paperwork. lawyer says they call a different phone number at nvc is there a differnet line for lawyers and could they possibley have everything but customer service not have record of this? any advice?

laurel(A) Lawyers have a separate email address to talk to NVC. We do not have a separate phone number as far as I know. When I call, I use the number they have on their website. Having said that, NVC is notorious for the left hand not knowing what the right hand is doing. They send an RFE and then before you have a chance to respond to the RFE, they send you a notice saying they sent the case to the consulate. It is not impossible that they sent the case to the consulate, but when you call someone tells you they haven't.

TSK(Q) from Waitininlorton: Someone entered UK on student visa, got British passport on fake documents. Traveled to US for 2 weeks on their fake British visa. Couple years later, he got caught in UK for the fake passport, finished his sentence of 1 year in 6 months and was deported back to home country. US citizen wife filed I130 for him; consulate denied their visa application for US and asked for I601 waiver. Waiver was later denied. How long is their bar? What is the bar for since he only visited U.S. for 2 weeks and never lived here. How do we find out how long the bar is?

laurel(A) He is inadmissible both on criminal grounds and on misrepresentation grounds, both of which are a lifetime bar and he will always need a waiver. And by 'always' I mean forever, even in 50 years. You might want to re-file the waiver once Lockbox filing starts in a few months.

TSK(Q) from gemma.jasmene: what is good evidence for proving a couple has met (k1visa) if they’ve lived together the whole time. Ive never visited my fiance’s home country, he entered illegally, so I dont have passport stamps, chat logs, emails...etc! I do have two daughters, lease contracts, rent/car payment reciepts under both of our names. Also, should I provide a parental consent for the I-129F is he’s 17 when Im applying for him, but will be 18 when he has to come back to the US and marry me? his mother is in Mexico and I find it hard to get her to sign a letter; he was under the guardianship of his aunt (could she sign it?), but not legally or anything court documented.

laurel(A) There are various types of proof of meeting in the past two years, but the two types of proof that are LEAST likely to get you an RFE are: (a) boarding passes [obviously not applicable if you're here together], and (b) a date-stamped photo of the two of you together. For the latter, you need a special kind of camera or film (I'm not sure). Talk to a photo specialist. As for the age issue, at the time you file the I-129F he has to be legally available for marriage both in his home country and in the state where you plan to marry. I recommend you speak to a family law attorney to find out what the laws are in your state regarding underage marriage. Alternatively, you can wait for his 18th birthday to file the I-129F.

laurel(P) Correction: for a finace(e) visa where you plan to marry in the US, the planned marriage does not have to be legal in his country of citizenship, only in the US state where you plan to marry.

TSK(Q) from ojosazules: My boyfriend EWI from Mexicoin January 2003 and has been here ever since. The first time EWI attempt he was fingerprinted, photographed, and may have signed something, he doesn't remember. The 2nd attempt he was just stopped at the border and sent back, then made it successfully on the 3rd. All attempts were within a week or so. I'm concerned about his first attempt, but both FOIA and FBI reports showed nothing of a deportation or VD. He does not think that he went in front of a judge. Is there anything else we can do to determine if the 1st attempt was in fact a deportation? If he did in fact have a deportation, does that mean he would not be eligible for an immediate waiver until spending 10 years outside of the US? Thank you for your assistance.

laurel(A) Make sure your FOIA is with CBP, rather than USCIS. Doing the CBP FOIA and the FBI fingerpint check are really all you can do to be sure he doesn't have an expedited removal. It is possible that you will get a false negative, though that's extremely rare. Remember that this process does carry some risk. You can minimize risk, but you can't eliminate it. One of the risks is that the consulate will find you ineligible to apply for the waiver, even if you think their finding is incorrect. Your options for fighting a consular officer's decision are extremely limited, even if you feel the decision is ridiculous and incorrect. That's one of the risks. But again, if you've done your due dilligence and gotten the CBP FOIA and FBI fingerprint check, you've minimized your risk as best as you can.

laurel(P) Your only other option is to abandon the process and live in fear.

TSK(Q) from ktmnep: Hi laurel hope you had a great vacation. I was married to US citizen in July 2003. I was in student visa. I quit the college after I got the work permit in April2004. On Feb2005 My wife admitted that the marriage was fraudulent and entered into for the sole purpose to enable me to obtain immigration benefit and she withdraw the petition.I admitted that I quit the college in June 2004.In Sept 2005 I was issued Notice to Appear. On Jan2006 I filed the Asylum application which was denied in April2006. And i file the appeal which was dismissed July2007.I was granted 60 days to depart the United states . I Failed to depart within the required time frame. I was taken to custody on Dec 2007 and I was removed from The United states on Jan2008. I was never charge for fraudulent marriage not even by Asylum Judge. I have a question, since I file everything on time and i never missed any court date and when I quit college my application was pending ( I had work permit). How did I get a 10 years bar? Does this all time period I spend for immigration process count like unlawful present?

laurel(A) You were unlawfully present from Feb 2005 (or whenever the I-485 was denied) to Jan 2006 when you applied for asylum, and then again from July 2007 the day your asylum appeal was denied until Jan 2008 when you were actually removed. While 9B is not counted 'in the aggregate', the term 'in the aggregate' probably means separate visits. The consulate is probably adding up your periods of unlawful presence from the same visit. I'm not sure whether this issue has been raised in court, but it is nearly impossible to bring a consular officer's decision to court.

TSK(Q) from saxonspirit: Is there a way to go live in the US while the I-130 is pending? My son will age out next year

laurel(A) Usually no. He would need a separate basis for coming to the US - e.g. student visa - and if that other basis does not allow immigrant intent, then he would have to prove nonimmigrant intent, which is extremely difficult when you have an I-130 pending. Even if you are about to age it, the fact that you had one pending implies immigrant intent. It's not impossible for him to come, but it is very difficult.

TSK(Q) from txladykat: Hi, my husband has a conditional LPR. Our ROC is processing and he has a one year extension. However, he is being sent back to his country on an extradition warrant on 10/12. He is entering into a plea deal and it is possible that his crime may be interpreted as a CIMT or Agg Fel (embezzlement although in the foreign country the statue for which his is indicted of embezzlement does not include fraud, thats a different statute). We know we are going have to fight it at some point, but my question is, what will happen when he attempts to come back into the country on his green card? Will he be denied entry? If so, will this occur when he boards in the foreign country or upon arrival in the US? If he is denied entry once arriving in the US, will they allow him to simply board a plane and return to his country or take him into custody? Thank you!

laurel(A) Presuming he is convicted, they will probably allow him on the plane and when he comes, they will take him into custody at the airport to give him an opportunity to plea his case in front of an immigration judge. He could be in custody for many months. You really need to do a full consultation, probably with someone who specializes in removal defense for criminal LPRs. Try Norton Tooby. Warning: he is very expensive. But he is generally regarded as one of the best in the country for removal defense of criminal LPRs.

TSK(Q) From JulissaC: Husband entered EWI he was here over 1 year. He was caught by a CBP officer in Seattle boarding a plane going to ny only id he presented was a Washington state drivers license. On 2/9/2009 he was granted VD was given till 2/23/2009 to leave. He requested for an extension was approved and given till 3/7/2009. He did leave before the extension date. He is currently in Ecuador does he only require a I-601??

laurel(A) As long as it was the judge who granted the extension - as opposed to a deportation officer - he should only require the I-601.

TSK(Q) lonelyinus: do you have any idea where they are at in the adjudication process? Like what month they are working on? I see several from March being approved, but was wondering if they have even started April's backlog yet? Thanks so much!

laurel(A) It depends on where the file was sent. Mexico City is working on cases filed in August 2010. Other offices who receive CDJ cases seem to be taking 4-6 months.

TSK(Q) From Marisa89 I have a friend whoes boyfriend was arrested under an alias and sent to ice detention. what are the chances that he will be charged with fraud when they try to straighten this out in court

laurel(A) Giving a fake name, by itself, is not material misrepresentation as the fake name does not accord any kind of status or benefit. Now, if he had fake documents with that name, etc. That might be different.

canadexan(Q) I am a Canadian Citizen living in British Columbia, Canada. I will be going to Montreal on Oct 27th for my IR-1/CR-1 Visa Interview. Knowing I will be denied my visa and planning on filing the 212 and 601 waivers while there. Was denied entry and received 5 year ban for overstay. Do you know if I might have to go back to Montreal for 2nd or 3rd interview? Tis a long trip! I do have an attorney out of Texas for the waivers. Thank you so much!

laurel(A) They will *probably* let you file the waiver at the appointment, but they have the authority to require you to return. After the waiver is approved, you will *probably* have to return to the consulate for visa pickup. Overstay is not a 5 year ban. Expedited removal is five years. Overstay is either 3 years or 10 years.

TSK(Q) From mrs_salazar09: Hello! Do you have anymore information/news/updates on the reason for the long response times from the waiver appointments? As you know, August is moving very slowly. Some members will hit the 8-9 week mark this week. Any insight, information would be appreciated! Thank you

laurel(A) I don't have any information except that all of my clients who filed in August (and there are several) are frustrated both with the government and with me because they want me to fix the problem and I can't. I'm getting emails from lots of attorneys in the same boat. Sending inquiries will only slow them down and make the problem worse. August is a big month for filing waiver and I know they've been having computer problems. So I *think* it's just volume and technical issues.

TSK(Q) from chula1967: Good Morning: We made a huge mistake on item #22 on the form I-130, we did not put which location for my husband to receive his visa interview, I just filled in the first part of the question and put N/A and thinking that was final. We received our NOA2 it clearly states on there that they think he is in the USA and also requesting for us to fill out an I-824. He is in Honduras and this was metioned in the interview several times and also on the I-130. If I was to make an infopass do you think that they would overturn this decision and send the file on to the NVC without filing this form or should I just go ahead and file the I-824? and, is it really taking 3 months for this process?

laurel(A) If on #22 on the I-130 you filled out the local office in the US and/or filled in both blanks (the local US office AND the consulate abroad), then (a) you will be called in for a local interview that would otherwise have not happened [sounds like you've done this], and (b) you will have to file an I-824 which takes a few extra months and costs several hundred dollars. This fairly innocent and common error is very costly in terms of time, money and aggravation.

TSK(Q) from Aldiak: Hi I had my marriage based 485 interview back in february,2011, 7 months after i contacted 2 congressman and omdusdman. I finally get a notice to do my biometric again, cause the one i did was back may,2010. So uscis said that was exparied. A week before my new biometric apointement, my case status on uscis web site change to CARD PRODUCTION. On sept,27 we mail to your address in our file your new card give it to 30 days to receive it. Since i have moved, and change my address online,and have the letter from uscis on my new address.But they sent my biometric notice to the old address, My question are Why send it to my old address since they have the new address on file. How come they can send a green card and still ask to do new biometric?? And i haven't receive the card yet, but they said it was sent in sept,27 Can you please explain to me what is going please Thank you very much

laurel(A) The change of address is one of the things USCIS does the most poorly. I usually recommend to people that they not move during the green card process as it is likely to cause problems and delays. The card will not be forwarded to your new address even if all your other mail is being forwarded. It will go back to USCIS. They may hold it for a month or two, but will eventually destroy it. You can't just pick it up in person (usually) because of the things they want to do when they send it is, effectively, verify the address of the alien. You will need to go in person and argue with them about your address. Bring your proof of address change. This could delay your case anyone from one month to six months. And just do the biometrics anyway since you don't have the card in your hand yet.

TSK(Q) From LAZ11: My husband's waiver was backlogged in March. It seems like some March backloggers were approved a couple of weeks ago, and then nothing these past couple of weeks. At the same time, pilot program decisions screeched to a halt. Is there something dramatically changing in the adjudicating process in CDJ? Thanks Laurel!

laurel(A) There's a lot changing, yes. They changed scheduling contractors earlier this year. They started using online processing for many things. When they kept running into problems, they started having waiver applicants call to schedule their appointments. They started requiring separate ASC appointments. They started requiring the applicant to schedule the ASC appointment even if the NVC scheduled the consular interview. They started doing DS-260s. They started requiring DS-260s for K visas. They started requiring post-I-601 approval cases to do the DS-260 before visa pickup even if the DS-230 wasn't expired. They started requiring DHL registration online or over the phone. They started having USCIS take the waiver directly instead of having the consulate take it. And these are just the changes we see on our side. I'm sure there are additional changes in the way they do things behind the scenes. The lawyers are confused as hell. I'm sure there's some confusion on their end, too.

TSK(Q) From KPontes: What is your experience with NVC and online police certificates from Brazil? Did you have to end up using an original anyway, or was there never an issue with the online issued ones? I am using the online certificates but this seems to be a fairly new way of doing it so I want to know what I should prepare myself for. Thanks!

laurel(A) You have to submit an original at the interview.

TSK(Q) from julio'sgatita: Thanks for any help, Husband (in Guatemala) will have decision very soon (next 3 months) and we are now filing for the children (my stepchildren), my question, Husband is the legal guardian of 2 nephews(brothers) their Mom is husbands sister and their dad is dead. We plan on adopting the boys, they have been in husbands custody since they were 2 months, and 2 years old. Will the guardianship papers be enough to file the I130 for them or do we need to complete the adoption before filing? We can see no hold ups since my husband is Guatemalan and a blood relative that is a requirement of priority adoptions in Guatemala. Thanks

laurel(A) They have to be legally adopted. If they are not orphans (e.g. their mom is alive), the adopted parent has to live with the child for at least two years. There are more, complex requirements. I recommend you contact Irene Steffas, the expert on foreign adoptions.

TSK(Q) from Mill family: Can you refile a I-601 waiver if you currently have an appeal I-290B in process in Washington? Vienna forwarded our appeal to Washington a few days after receiving. We hear they can take up to 2 years sometimes. They received in May 26, 2011.

laurel(A) They don't take up to 2 years sometimes. They take over two years (nearly) every time. The policy on accepting a new I-601 while one is on appeal may vary from consulate to consulate and at the same consulate over time. Currently CDJ is allowing new I-601 filings while an appeal is pending. I'm not sure about your consulate.

Sammi(Q) Hi Laurel. USC sister petitioned brother in April 2001. Petition has been approved and has received AOS invoice from NVC. Brother was in the US at the time petition was filed but was deported 2 years ago and currently lives in Guatemala. Would she have to file another petition or just wait for the 10 year bar to expire without having to file a new I-130. A lawyer told her she needs to file a new I-130. Thanks

laurel(A) If he does not have a qualifying relative for the waiver, then he cannot obtain the visa in time before it expires. File a new I-130 now.

stephluvju(Q) After my SIL became a US Citizen she applied for the N600 for her son last November. About 5 months ago she made an InfoPass appointment and they told her that she was just waiting on the letter for her son to go to his citizenship ceremony. She never received a letter so she inquired again last week - well, this morning she received a phone call and the representative who called said that her son first has to apply for residency and then become a citizen. Is this new information correct? My SIL is a US citizen she applied for her minor son N600.

laurel(A) To automatically get citizenship for you child when you naturalize, the child must be a permanent resident and the child must be under age 18 at the time you naturalize (there are some additional requirements). If he was never a permanent resident, then he did not automatically become a citizen and the N-600 should be denied.

Wade(Q) young man was the victim of a immigration scam, in 2005 got US visa from a "agency. All information on the visa was of a genuine nature ie. Travel on the visa spent a week in LA, went home, a year later travelled back to LA in December 2006, was stopped at LAX. And denied entry. Was questioned, answered all questions truthfully(though is not sure if he was believed), Was return to home country. Was told i could not be able to aply for a visa for 5 years by Immi officer at LAX(5year bar?) Has been filed for by mother since about 2002. went on interview Sept. last year, was told would need a I-601 but no I-212. I am somewhat uncertain of my status and was advised to file a FOIA. Should i wait out the bar or go ahead and file for the I-601? what aremy options.. Thanks for your time..

laurel(A) If you're being accused of misrep, I would file the I-601, contesting the misrep finding. I would say that you should fight it with the consulate, but (a) if CBP found misrep, the consulate can't overturn it, and (b) even if CBP did not find it, you have a slim chance of winning at the consulate with that set of facts. Better to take it up with USCIS via an I-601 waiver. Misep does not expire. As for the expedited removal, at this time you are required to file an I-212 (though I would reserve final judgement until I see the removal papers).

laurel(P) It is now noon. There are a few questions pending. I will be back next week, so bring those questions then.