My wife was deported for an overstay of her visa on the Visa Waiver program. Before she left, I applied for an I-130 while she was still here. She was deported and is living out of the country. USCIS told me that she will be interviewed for the I-130 petition overseas. I was told by an attorney that it will be denied because of the deportation and she will have to apply for an I-212 Waiver. Is this something she applies for overseas after the denial or does she file with the USCIS office that deported her here in the US? Also, can we submit the waiver now or do we have to wait until after the I-130 is denied?
I would recommend you speak to an experienced immigration attorney to discuss your petition facts in particular. If she was removed/deported for overstay, she may be required to stay out of country for five years. You should explore possibility of modifying removal order to voluntary departure.
If she was married and you apply prior to her removal for I-130, are you U.S. Citizen. There could be an issue of good faith marriage. I -212 waiver can be applied at a consulate . However, first you need to have an approved I-130 petition.
I agree you need a lawyer. You need someone with experience with I-212 waivers. The very question of where to file is an example. I am fairly certain that you will file the I-212 at the field office having jurisdiction over the geography where the immigration court ordered your wife deported. You also need a lawyer to make sure you develop and document all the evidence that will make your I-212 approvable.
At a minimum, contact an attorney for a consultation.
[I have experience with I-212's.]
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