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Do I need to file another I-130 if previous I-130 was granted, but never finalized and spouse was later deported?

Los Angeles, CA |

Filed I-130 Petition for Spouse over ten years ago. Petition granted. Went to Mexico for Visa appointment which triggered five year bar on his re-entry. Spouse did not wait five years, but re-entered U.S. illegally. Never went to final appointment at consulate and never got Visa. Never heard anything else from USCIS or consulate. Fast forward another five years and he was pulled over for a traffic violation and deported. He is now in Mexico and subject to a deportation order ("warning") making him inadmissible for another twenty years. Plan on filing hardship waiver (I know, tough to get granted) but do I also need to file a NEW I-130, or can I rely on the one that was granted ten years ago? Thanks in advance for your help.

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Attorney answers 3

Posted

I regret your circumstances. Your original I-130 is likely terminated, requiring you to file a new petition to start the process anew. Having said that however, your husband is almost assuredly inadmissible for a mandatory period of ten (10) years from the date of his last departure due to re-entering the U.S. without inspection five (5) years ago. This would mean, at a minimum, that he would not be eligible to even turn a waiver in for that period of time. Be careful of who you hire as you will likely lose any money you spend towards it at this time. I am so certain of this that I would respectfully decline to take this case under the current law. Perhaps a change to the law this year could eliminate some of these issues. Hang in there.

Asker

Posted

I appreciate your answer, thank you. I guess it's 2-1 that a new Petition would need to be filed, IF that's what I end up doing, which all depends on the waiver issue. Can you tell me what circumstance create absolute ineligibility to file the hardship waiver (I-601 + I-212)? His first departure was voluntary and his second was deportation--he has not tried to return since and is not currently present in U.S. I understood that I could file for a hardship waiver because he was not unlawfully present AFTER deportation (reason #27 on waiver). Thank you, again.

Richard Bennett Bracken

Richard Bennett Bracken

Posted

There are a number of issues that make your matter difficult. I only am really addressing one of them. The mandatory ten (10) year issue that I directed you to above relates to individuals who re-enter or attempt to re-enter the U.S. without inspection (post 1997) after being ordered removed, which is what I thought you described. Individuals who fall under this section are ineligible for waivers for 10 years, typically from the date the person most recently left the U.S. (INA section 212(a)(9)(C)Ii)(II)). You should meet with a qualified immigration attorney to discuss this matter further due to the complexity of your challenge. I only raise the issue to encourage you to be cautious in how you proceed. I've seen people who have spent large amounts of money when they didn't realize that they faced almost certain disappointment. I wish you the best of luck. **The above answer is provided for informational use only. One should not act or refrain to act solely based on the information provided. No attorney client relationship is created unless a retainer is signed by the attorney and the client.

Asker

Posted

Thank you for your thoughtful answer and clarification.

Posted

YOu do not need a new I-130 for the same person, but you have a larger problem now.

NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

Posted

Most likely yes, a new I-130 will need to be filed.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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