Legal Question in Immigration Law in California

Here are the facts laid out:

Mother and Father entered U.S. LEGALLY on a B2 visa in 1989 and I was born in Nov 1989 (they could not leave the U.S. due to doctor orders on grounds that it was too dangerous for my mother to fly while pregnant).

Mother and Father applied for political asylum in 1993 and my father added my mother as a dependent on the asylum.

My mother and father come from different countries, so my mother did not file a separate asylum, was just a dependent under my fathers asylum.

From 1993-2000 the asylum was in pending status.

On April 1, 1997 the IIRIRA came into effect and placed a 3/10 year bar but was not retroactive and did not count illegal status prior to 1997.

Since my parents had an asylum pending from 1993 to 2000ish (don't recall exact year) they were exempt from unlawful presence during this time according to the law stated in INA 212(a)(9)(B)

On 01/1998 both parents filed for I-485 adjustment of status.

My mother left the country in 2005 while this was in pending status due to half-sister being seriously ill that required my mother's presence.

About a month of less after my mother left my father was summoned to court and was granted his permanent residency (green card).

Mother and father divorced in 2006 while my mother was overseas.

At 21 years old, I filed an I-130 for my mother and that was approved. Filed all the required forms thereafter to the NVC and everything was sent to the U.S. embassy.

Her appointment, last month (Feb 2012) did not turn out well. The consul claimed she was ineligible because she was in illegal status. She claimed INA 212(a)(9)(B)(i)(ii) as the reason for her decision=10 year bar from the U.S.

She then requested my mother fill out two waivers (one waiver was ok, but the second waiver requested did not apply to her as it was regarding deportation, and my mother was never deported or ordered deported).

My mother went back to the consul with the forms and the money and the consul did not accept the money or forms because she claimed that she does not want my mom to lose all that money for nothing if she was to get denied by the NVC.

My mother asked her what else she can do, the consul said she needs proof that my mom was in the country legally. My mother showed her the I-485 that was dated from 01/2008 and pending until she left in 2005 so the consul went away for an hour to discuss with other colleagues and came back to say ok, well now I need proof that from 1989 to 1998 you were in legal status.

I did some research by looking through some old files and found out that since my parents had a pending asylum from 1993 to 2000ish that there was no unlawful presence to be counted during the pending asylum according to the law INA 212(a)(9)(B).

Not only this but the law that came into effect in 1997 since it was NOT retroactive it did not apply to illegal status prior to 1997. Therefore I would assume that my mother is ok in this matter and her visa should be issued.

I would greatly appreciate your input on this matter!

Thank you.

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