Friday, January 13, 2012

Determination of Inadmissibility Reversed, Green Card Issued without a Waiver

I just received a Green Card approval on behalf of a client who is married to a United States citizen.  The client first came to us when in immigration court proceedings were instituted against him after he was taken into custody while mistakenly driving down a one way road that led to a border crossing.  He was engage to a United States citizen at the time he was encountered.

After the institution of proceedings my client married his fianc√©.  I prepared and submitted the immigrant visa petition on his behalf, together with proof that the marriage was entered into for the right reasons, and obtained adjournments of the deportation proceedings in order to buy time to get the Green Card petition approved.

Upon approval of his wife’s petition I filed a motion to dismissal to enable my client to apply for his Green Card before USCIS rather than before the immigration court.  This motion was granted, and I then filed my client’s Green Card application with the New York district office, which had jurisdiction over his place of residence.  

At the scheduled marriage fraud interview my client was told that he needed a waiver to overcome inadmissibility.  USCIS mistakenly believed that he triggered a 10 year bar when he physically left U.S. soil without being admitted into Canada.  We received instructions from USCIS to file the I-601 within 30 days of receipt of the notice.

I successfully argued that a waiver was unnecessary because when encountered he was not an applicant for admission because he never effectuated a departure from the United States, making a u-turn on the bridge prior to ever leaving U.S. territory.  As such, he did not trigger either a 3 or 10 year bar under INA §§ 212(a)(9)(B)(i)(I) and (II), which would necessitate a waiver of inadmissibility.

USCIS agreed with my interpretation of the law, reversed their initial decision, and issued my client’s Green Card.  

He will be eligible to apply for his citizenship in three years.

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