Withdrawal of Application for Admission & I-212 Waiver

QUESTION:  I am a U.S. citizen and K-3 visa petitioner.  My husband and I had our visa interview for K-3 on March 30, 2010. The consul approved our application for the visa, but informed us that my husband appears as “excluded” from the United States and needed to receive permission from the Government to re-apply for admission to the country before a visa was issued. The CO then gave to my husband a sheet of paper stating that he was ineligible by the section 212(a)(9)(A)(i).  We informed the consul that my husband has never been deported, excluded or removed from the United States.  We informed her that he was deemed inadmissible as a non-immigrant visitor (B1/B2) and he was allowed to withdraw his application for admission.  She told me that the system shows him as excluded and she can not erase that in the system. 

We ended up totally confused.  We wrote emails to the US Embassy, we called CBP, and directly visited the local offices of ICE and USCIS.  Everyone told us we had to fill out the Form I-212. We believe there is an error in the DHS system but nobody has offered us any option to resolve it.  We finally filled the Form I-212 on May 4, 2010 with no decision yet.  We feel very desperate and distressed by this situation. I think that is unfair to require that we submit the Form I-212 if we really do not need it because my husband was never deported.  We have two years of being apart and we recently had a baby that just born and my husband can not see her.  Do you think we are on the correct way? Do you have experience with persons with the same case? What else we can do to be together as soon as possible? 

REPLY:  It sounds as though you and your husband are in a very complicated situation.  Sadly, many others have found themselves in this situation as well. 

You are correct that if your husband was never removed and only granted permission to withdraw his application for admission, he does not require a Form I-212 waiver/permission to reapply for admission.  As you have learned, however, it can be extremely difficult to get the DHS and especially the DOS to correct their systems. 

Have you requested copies of your husband’s DHS files pursuant to the Freedom of Information Act (FOIA)?  This should generate copies of all of the records that the DHS keeps regarding his prior withdrawal and the alleged removal.  Depending upon what these documents reveal, we may be able to challenge the current notations in the DHS and DOS systems.  While it is a frustrating process, we have had success on behalf of clients in similar situations in the past. 

If you would like to discuss a strategy in more detail, please consider contacting my office to set up a consultation.