Overstay in the U.S.

[twostar55 0]

Hello, everyone --

I wrote about this topic yesterday, and I was thankful for the replies I received. Today, I have a little better picture of what is going on, so I would like to get your opinions again.

My fiancee and I now have our NOA2. Now I am preparing the I-134.

She lived and worked in New York City from 1997 to July, 2001. She overstayed her visa by about three years. She was law-abiding.When she left for her home country in mid-summer of 2001, she wasn't even asked for her I-94 departure form--they simply stamped her visa and she was on her way. (Remember--- this was pre- 9/11).

Now, when she gets to her interview and speaks with the CO, and she/he asks her if she ever over-stayed her visa, she has two options as I see it:

1. She could tell the truth, this to me would be the "kiss of death"-the K-1 would probably go right down the tubes.

2. She could tell them no--how would they know? It has been almost five years since she left the U.S. (since her departure segment of the I-94 was not processed, how would they know when she actually left?)

I am not advocating lying during this process, but geez, after all the work and hope---just to have everything shot down because of a technicality. Her "admission" of an "overstay" would hurt us much more than help them(government).

Any comments or suggestions?

Thanks

[gwenneh 7]

Lie, and you will get caught. Maybe not now, maybe sometime down the line at AOS or when you go to remove the conditions from the green card...but you will get caught. And then you will face much bigger problems, like prosecution, fines, and a ban from the US.

Unless she was working illegally-which has problems of its own-there will be a very clear paper trail of where she was and when she was there. They WILL know and it WILL be brought up.

Edited May 16, 2006 by Gwen666

[meauxna 15]

Now, when she gets to her interview and speaks with the CO, and she/he asks her if she ever over-stayed her visa, she has two options as I see it:

1. She could tell the truth, this to me would be the "kiss of death"-the K-1 would probably go right down the tubes.

2. She could tell them no--how would they know? It has been almost five years since she left the U.S. (since her departure segment of the I-94 was not processed, how would they know when she actually left?)

Since this is only how *you* see it, why not invest a couple of hundred dollars to get a professional's opinion. You may have other options/outcomes than what you see.

Keep in mind that this can catch up to you at any time, even after citizenship. Don't have her start out in the US on a lie--this is a fixable problem, unless you make it worse.

Should't the overstay already have been 'fessed up to in the visa app?

[chocolaterie 0]

I understand how you feel. But remember, it's now post 9/11. People especially USCIS is very touchy about immigration. Although you may not see a way for them to know that she overstayed, do you think it would be fair to ask her to lie if this question is asked? I once worked for a lawyer that said, if they don't ask you a question, there's no reason to come up with a lie. But don't volunteer information either. I think it would be in your best interest to be honest. yes it produces a longer road, but as that old saying goes, it's better safe than sorry. Good Luck!

[Joey559 1]

She lived and worked in New York City from 1997 to July, 2001. She overstayed her visa by about three years. She was law-abiding.When she left for her home country in mid-summer of 2001, she wasn't even asked for her I-94 departure form--they simply stamped her visa and she was on her way. (Remember--- this was pre- 9/11).

Didn't we already have this posted. Oh well, I said it there and I'll say it again. She wasn't "law-abiding'. She broke the law by over staying her visa. I'm sorry, i'm not trying to be mean, but that's just how they are going to see it so I would expect some problems if I were you. Don't hate me

Joey

[rejane 1]

I thin she should be honest about it...

I m sure that they willfind away to know that she overstay

I m very surprised that they did not ask her for her i 94.

Good luck on the visa process hope things go well.

[desert_fox 32]

She worked in NYC????....I assume she paid taxes and had SS withheld. They already know she was here. Go ahead and lie, and see what the consequences are. Willing to take the risk???

[TracyTN 237]

She could tell them no--how would they know?

That has to be about one of the most naive statements I've ever read on VJ, even pre 9/11. And to say "I am not advocating lying during this process" right after that is hilarious.

Don't expect us here to encourage you to do something illegal.

Good luck.

[Karen_L 1]

SHE SHOULD NOT LIE but... nor does she have to begin the interview "Hi, I overstayed a US visa and lived illegally in NYC for..." If they don't ask her about it, she shouldn't talk about it. But if they do ask her, in writing or during the interview, she has to be truthful, for both your sakes.

But ultimately, you have to follow your own conscious and do what feels correct to you -- just be careful if you're thinking about lying to the US gov't.

good luck!

[meauxna 15]

SHE SHOULD NOT LIE but... nor does she have to begin the interview "Hi, I overstayed a US visa and lived illegally in NYC for..." If they don't ask her about it, she shouldn't talk about it. But if they do ask her, in writing or during the interview, she has to be truthful, for both your sakes.

But ultimately, you have to follow your own conscious and do what feels correct to you -- just be careful if you're thinking about lying to the US gov't.

good luck!

Karen, I hear what you are saying about not volunteering information. There is no way to weasel out of this one though. I refer you to Q38 on the nonimmigrant visa application form DS-156:

"Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?"

It's a yes or no question, and it must be answered. This form comes in "packet 3" and is a prereq for a visa interview.

[Karen_L 1]

SHE SHOULD NOT LIE but... nor does she have to begin the interview "Hi, I overstayed a US visa and lived illegally in NYC for..." If they don't ask her about it, she shouldn't talk about it. But if they do ask her, in writing or during the interview, she has to be truthful, for both your sakes.

But ultimately, you have to follow your own conscious and do what feels correct to you -- just be careful if you're thinking about lying to the US gov't.

good luck!

Karen, I hear what you are saying about not volunteering information. There is no way to weasel out of this one though. I refer you to Q38 on the nonimmigrant visa application form DS-156:

"Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?"

It's a yes or no question, and it must be answered. This form comes in "packet 3" and is a prereq for a visa interview.

Yeah, I know it's a question on one of the documents in packet 3 -- she has to answer it truthfully. I wasn't saying she should try and weasel out of anything -- and I said she has to be truthful, so it's inevitable that they will find out about her overstay -- but ... if they conduct the interview normally despite her response, or before reading it, she should only answer questions she is asked. If she doesn't at least attempt to conduct the interview normally despite her response to qu. 38, she might as well cancel the interview now.

[Yodrak 7]

twostar,

Overstay is a much less serious offense than making a material misrepresentation.

Take meauxna's advice and have a consultation with an experienced immigration attorney.

Yodrak

Hello, everyone --

I wrote about this topic yesterday, and I was thankful for the replies I received. Today, I have a little better picture of what is going on, so I would like to get your opinions again.

My fiancee and I now have our NOA2. Now I am preparing the I-134.

She lived and worked in New York City from 1997 to July, 2001. She overstayed her visa by about three years. She was law-abiding.When she left for her home country in mid-summer of 2001, she wasn't even asked for her I-94 departure form--they simply stamped her visa and she was on her way. (Remember--- this was pre- 9/11).

Now, when she gets to her interview and speaks with the CO, and she/he asks her if she ever over-stayed her visa, she has two options as I see it:

1. She could tell the truth, this to me would be the "kiss of death"-the K-1 would probably go right down the tubes.

2. She could tell them no--how would they know? It has been almost five years since she left the U.S. (since her departure segment of the I-94 was not processed, how would they know when she actually left?)

I am not advocating lying during this process, but geez, after all the work and hope---just to have everything shot down because of a technicality. Her "admission" of an "overstay" would hurt us much more than help them(government).

Any comments or suggestions?

Thanks

[kitkat1 5]

1) Overstaying is NOT the kiss of death for a K1 applicant. As I responded to your previous post, there is a waiver available to "forgive" the overstay. Yes it's a pain to do and it will add time to the process. But the fact remains that are have a legal way to deal with this, thank god, and you can prepare the waiver and the hardship letter in advance. As I mentioned, the immigrate2us.net has a special forum for people is the same position - the 601 forum - which will help you immensely to get your head around this. And a consultation with an attorney very experienced in 601 waivers is a must. A good place to start is free chat on Wednesday mornings at 11 CT from visacentral.net

2) Lying while under oath at a consular interview IS the kiss of death. As many have said, at some point, somewhere down the road, it WILL catch up with you. And there will be NO waiver available for this.

[mrswooten4ever 0]

I agree, lie at your own peril. Honesty is the best policy. Giving false information under oath is fraud and perjury. Do not go there! Tell the truth about the over-stay and hope that they will overlook it as it was quite a few years ago

Adele

[almaty 19]

you be going through the almaty consulate..they will ask her questions about any visits to america..if she lies..or they think she is dishonest ..the visa be return back to america with to consider a denial...your risk..

Edited May 18, 2006 by almaty2004