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sherafour

Was my husband unlawfully in the US and how would I show he was not

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Hi Everyone,

I have quite an odd situation and I am looking for reassurance and a further explanation of how to show that my husband did not stay here unlawfully for over a year. Here is the background:

My husband immigrated here as a minor on a B2 Visa. His visa expired and he did not go back to his country, he stayed in the US, he was still a minor and his mother was handling his paperwork from what he understood. However, his mom actually never filed anything to extend his visa when the expiration was approaching. He was in school in the US through the age of 19, while his visa was expired.

In 2010, at the age of 18, his mother filed paperwork to renew his visa and 4 months after turning 19, he returned to his country, Belize, for an interview there. Of course he got stuck there and has not been able to return since.

When I was preparing to file the I-130, I spoke with a few lawyers who advised me that the I-601 waiver would be needed. I originally worked with a lawyer who assisted me in filing but she is no longer my lawyer due to a firm change. Although I sought out advice from a few lawyers I am questioning if they all missed what I found at the link below:

http://www.visapro.com/Immigration-Articles/?a=1484&z=46

"A foreign national with pending request for extension of stay or change of status, and who departs the U.S. while the request is pending, does not accrue unlawful presence, so long as the request was timely and non-frivolous, and the individual did not violate their status in any other way."

So basically paperwork was filed (later denied) for him to renew his visa, while he was still in the US. Does this qualify his overstay from the time filed as him not accruing unlawful presence? If so he would only qualify for the 3 year ban instead of the 10 year ban (since it kicks in at age 19) and we will not need to go through the waiver process?

Also, if my assumption above is correct, how do I point this out to the NVC or USCIS? I am quite far in my process and am simply waiting for NVC to approve/review my DS260 and Supporting Documents. Any advice on how to handle this would be greatly appreciated. Thank you!

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He does have unlawful presence. If he would have left BEFORE his 18th birthday the clock would not have started. But since he left after his 18th birthday he is considered an overstay. He will need the waiver. Its not a big deal. Its also not up to the USCIS or the NVC. The consulate is the final decision. They are the ones who say whether he is eligible for the waiver. The lawyer is correct. You can't get around having to file a waiver. Your husband will have to attend the interview after your case is complete at the NVC. The consulate will let you know what the next step will be.

Edited by LoveMyTico

Married March 9, 2013
NOA1 I-130 April 12, 2013

Transferred to TSC Nov 27, 2013
APPROVED March 18, 2014 FINALLY ! ! ! !! 11 MONTHS & 6 LONG DAYS FOR MY NOA2
Case shipped from TSC to NVC March 21, 2014
Rec'd NOA2 hard copy March 22, 2014
Case rec'd & Case Number assigned April 1, 2014
AMAZING !!!
PAID IV and AOS fees online April 5, 2014
Fees show paid/DS 260 avail. /DS260 submitted/AOS&IV pkg sent April 9, 2014
FEDEX delivered @ NVC April 11, 2014
Revised AOS pkg delivered April 15, 2014
AOS & IV rec'd& scanned in @ NVC April 15, 2014
Revised AOS scanned April 18, 2014
AOS checklist for income and IV pkg April 30, 2014 (checklist expected due to Lawyers mistakes)
DS260 accepted April 30, 2014
Checklist for Birth cert/police cert May 1, 2014
AOS accepted May 5, 2014

Birth cert scanned MAY 8, 2014

CASE COMPLETE JUNE 4, 2014 CC letter received via email June 11, 2014

INTERVIEW JULY 15, 2014

Waiver finally FedEx'd to Phoenix Lockbox August 21, 2014

WAIVER APPROVED December 17, 2014

Received Instruction Letter via email December 23, 2014

Final Embassy Appointment January 5, 2015 YAY !

Visa ISSUED January 12, 2015

event.png

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B2 is to visit, not immigrate.

Usually he would have been allowed to visit for 6 months, once he overstayed obviously many many year ago he was out of status and the visa was void.

As far as the ban is concerned illegal presence does not start until he is 18, so at 19 and something he would have a year overstay and a 10 year ban.

So yes he needs a I 601.

Edited by Boiler

“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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The I-601 sounds about right. If you haven't already, I would start working on your waiver package while you're waiting for NVC review.


11/06: Husband EWI from Mexico
11/08: Started dating

11/11: Husband got deported
1/11/14: Got married
3/13/14-11/2/14:
I-130
1/26/15-3/17/15: NVC

5/28/15: INTERVIEW - denied

6/8/15: I-601/I-212 waivers received

11/17/15: I-601/I-212 waivers APPROVED

12/11/15: HUBBY HOME!! :dance:

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Yes a waiver is needed, I am no atty but after 6 mths here he was out of status

although brought in as a minor, leaving after age 18 was what messed him up,

and the renewal mom seeked after being out of status (denied) shows no benefit,

He can likely get an I 601 approved, overstays tend to get approved & quickly as long

as no other bans exists.

Proof he stayed in his country: Paystubs there , active bank account, lease contract,

medical record there, transactions etc space proofs out to every 3-6 mths

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5 months seems the current time.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Ours took 4 months but we were expedited. I haven't been following the waiver groups since he got here. Follow the I601 waiver group on Facebook. You can get a good idea of the waiver timelines. Last I heard, it was like 7 months. The waivers go to the Nebraska service center. Your receipt number will start with LIN.


Married March 9, 2013
NOA1 I-130 April 12, 2013

Transferred to TSC Nov 27, 2013
APPROVED March 18, 2014 FINALLY ! ! ! !! 11 MONTHS & 6 LONG DAYS FOR MY NOA2
Case shipped from TSC to NVC March 21, 2014
Rec'd NOA2 hard copy March 22, 2014
Case rec'd & Case Number assigned April 1, 2014
AMAZING !!!
PAID IV and AOS fees online April 5, 2014
Fees show paid/DS 260 avail. /DS260 submitted/AOS&IV pkg sent April 9, 2014
FEDEX delivered @ NVC April 11, 2014
Revised AOS pkg delivered April 15, 2014
AOS & IV rec'd& scanned in @ NVC April 15, 2014
Revised AOS scanned April 18, 2014
AOS checklist for income and IV pkg April 30, 2014 (checklist expected due to Lawyers mistakes)
DS260 accepted April 30, 2014
Checklist for Birth cert/police cert May 1, 2014
AOS accepted May 5, 2014

Birth cert scanned MAY 8, 2014

CASE COMPLETE JUNE 4, 2014 CC letter received via email June 11, 2014

INTERVIEW JULY 15, 2014

Waiver finally FedEx'd to Phoenix Lockbox August 21, 2014

WAIVER APPROVED December 17, 2014

Received Instruction Letter via email December 23, 2014

Final Embassy Appointment January 5, 2015 YAY !

Visa ISSUED January 12, 2015

event.png

event.png







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4-5 months as of recently.


11/06: Husband EWI from Mexico
11/08: Started dating

11/11: Husband got deported
1/11/14: Got married
3/13/14-11/2/14:
I-130
1/26/15-3/17/15: NVC

5/28/15: INTERVIEW - denied

6/8/15: I-601/I-212 waivers received

11/17/15: I-601/I-212 waivers APPROVED

12/11/15: HUBBY HOME!! :dance:

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