The denial of the first petition will not require a waiver as long as you did not make any misrepresentations in the course of your visa application.
your unfortunate situation could have been avoided and you could have already been in the US some time ago, if, rather than using "self help" you had an immigration lawyer prepare all the applications and guide you through the process.
You are now about to make the same mistake again in wanting to go it alone..
Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.
Thanks for your inquiry. Sounds like your case is stuck in the middle of a rock and a hard place and I would highly recommend a consultation with an attorney to find a solution to this case.
The answer to your question is that you would only be required to file a Form I-601 if you were somehow deemed "inadmissible" to the US for some reason. The revocation of the prior approved immigrant visa petition is not in and of itself going to raise a ground of inadmissibility unless of course the revocation was on account of a determination be the government that you attempted to engage in some type of fraud.
Please understand that an I-601 WOULD NOT overcome a determination by USCIS that you entered the marriage to gain an immigration benefit. In this case the I-130 would simply be denied and then there would be no reason for an I-601 as the underlying immigrant visa petition would have been denied.
More importantly, the issue is why the government still sticks with its thought that your marriage is not a bona fide marital relationship. Sounds to me like USCIS and the consulate are stuck somewhere between you not being able t establish that the marriage is a bona fide relationship and a determination that the marriage was entered for the sole purpose of evading the immigration laws. Truth is that you sound stuck in a circle which is never going to resolve itself.
If the government has derogatory information which would go to the issue of whether you have entered this marriage for the wrong reasons it has an affirmative obligation to disclose this information to you. So if CIS approved the application and then the consulate returned the visa after an interview for reaffirmation, you should have been provided with a description of the evidence which was relief upon to send the notice of intent to revoke to you. And my guess is that you were never provided with much in the way of that crucial information.
Often times I have seen reaffirmation cases get sent back to USCIS and sit there for months if not years. Then when someone at CIS finally gets around to doing something, they disclose that there was some problem at the consulate with believing the validity of the relationship and ask for additional evidence. But they hardly ever provide any detail to you which would explain the issue that arose at the consulate.
My office has successfully handled these cases and more often than not we have been able to obtain the reaffirmation of the visa, have it returned to the consulate and then get our clients here to the US. But we have gone to federal court at time to make this happen and we are not concerned about reminding CIS of its obligation to provide you with the information which is required to respond to the notice of intent to revoke.
If you continue to let the consulate and CIS play this game, the visa is never going to be issued. Something is wrong here and CIS is not providing the information that you need to figure out what the problem may be. Instead you are going back and forth and back and forth and that means your case is unlikely to move in the right direction.
I think that a consultation with someone who can review your paperwork and provide an assessment of the case is in order. Leaving things to the whim of the consulate or USCIS to move things along will take forever and you have waited far to long already. This attorney is not in a position to promise that he can resolve what has thus far been difficult to do. But I have been down this pathway long enough to know that if you do not take a stand, the government will likely continue to jerk the case around. Good luck.