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

[sherafour 0]

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!

[LoveMyTico 999]

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 June 11, 2015 by LoveMyTico

[Boiler 43,433]

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 June 11, 2015 by Boiler

[Cathi 5,610]

you cannot immigrate with a b2-it is a visitor visa. Like others have stated, the lawyer is correct he needs a waiver

[mrskvelasco 30]

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.

[Jawaree 717]

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

[sherafour 0]

Thanks Everyone!

About how long would this type of waiver take? It has been 5 years living in different countries and we are so anxious to finally be together.

[Boiler 43,433]

5 months seems the current time.

[LoveMyTico 999]

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.

[mrskvelasco 30]

4-5 months as of recently.

[Jawaree 717]

When your waiver gets there if Neb is on track 4-5 mths could be it...if backlogged up to 8 mths