Fiancee overstayed on B1 Visa and now has 5 year ban

[JimVaPhuong 4,863]

There is a huge difference between coming for a convention or a business meeting and working at a job located within the U.S. for a year. Short business visits are exactly the purpose of the B1 ... but working at the same job within the U.S. for a year is not, regardless of who owns the business.

From what the OP says, they granted her entry to work for 3 months. She, and her employer, inadvertently thought it was six months, and she overstayed.

I work for a US subsidiary of a very large Japanese company. We have employees from the office in Tokyo come often to help us finish up projects. They stay anywhere from a few days to a few months. They get B-1 visas. The purpose and expected length of their stay is made very clear when they get the visas, and when they enter the US.

You're right - it doesn't matter who owns the business, but it DOES matter who pays the worker.

Fine. I do not expect you guys to cry for me, but I have to wonder if the hardship of dealing with Immigrations for a while has hardened you guys. She did not come here to commit fraudulent employment. Her company hired her in Japan, asked her to work here, and she did it. My company has an office in Thailand. If they needed me there for an extended period, I'd do the same thing. She specifically said in questioning (I have the transcripts) that her intention in coming to the US was to work for her sister company. The fact that we fell in love and talked of marriage was simply something that happened. Is she not allowed to fall in love on a B1 visa?

Thanks for the facts and opinions on the immigration issues, I appreciate it. I'm just kind of surprised that people who have been through a lot of the same heartache are kind of heartless when giving me advice. I think homeland security lacks enough compassion for all of us, so we should at least try to support each other on these forums. Right or wrong, the intent was not for marriage. Honestly, even if someone does come here intending to marry, people need to step back and realize that we are all part of a global community and we aren't here on the planet for all that long. These laws saying we can only EASILY associate with those born in the same country as us are really causing unnecessary pain to some and are counterproductive for a harmonious global society. That's my take on it, feel free to bash me.

People here usually bend over backwards to try to help other people in similar circumstances. However, you will generally find a shortage of sympathy when someone severely screws up, such as overstaying a visa. You will find downright hostility when someone admits to any sort of intentional fraud. You inadvertently did this when you said "We really only used marriage as an excuse because she didn't know what to do and was desperate.".

Ok, you didn't actually mean it the way you said it, but this is why people's attitudes changed. People here are going to great lengths to try to get their fiancee's, spouses, and other family members to the US by following the letter of the law. It infuriates them when they see anyone trying to "play" the system, which is what your statement made it sound like you and your fiancee were doing.

You've since cleared that statement up, to some degree, but there is still a problem of perception by the people here. You give the impression that you intended to marry your fiancee in the US and then apply for AOS. This is, without any doubt, the fastest way to get your fiancee into the US, marry her, and keep her here legally. The problem is that this approach requires that she did not intend to immigrate when she entered the country. If it was your plan to marry her after she returned on a B-1 visa, and then apply for AOS while she was still here, then that IS visa fraud, and people here would be rightly upset about it. If this was not your intention then you should clear that up, because that is clearly what the CBP officers were thinking.

[scandal 951]

People here usually bend over backwards to try to help other people in similar circumstances. However, you will generally find a shortage of sympathy when someone severely screws up, such as overstaying a visa. You will find downright hostility when someone admits to any sort of intentional fraud. You inadvertently did this when you said "We really only used marriage as an excuse because she didn't know what to do and was desperate.".

WORD

As usual Jim gives fantabulous advice!

[Chica Yeyé 41]

People here usually bend over backwards to try to help other people in similar circumstances. However, you will generally find a shortage of sympathy when someone severely screws up, such as overstaying a visa. You will find downright hostility when someone admits to any sort of intentional fraud. You inadvertently did this when you said "We really only used marriage as an excuse because she didn't know what to do and was desperate.".

WORD

As usual Jim gives fantabulous advice!

Agreed.

[Old Dominion 26]

All things considered, if her Japanese employer gave her bad advice about her visa status, they should at least address it properly. I assume she still has her job, so she has lost nothing financially.

I think what you are suggesting is that the employer has an obligation to fix it so you can marry here in the US, including paying for the K-1 visa process etc. and whatever else is necessary. I don't see why that would be expected. You are free to file the K-1 and ask for a waiver of the 5-year ban and perhaps the company will provide some document to accept the blame for the mistake, that it wasn't her mistake, etc. Nothing ventured, nothing gained. But if she still has her job, messing with the company may harm her career.

[Surf2Salsa 0]

I’ve been working in the accounting and taxation field for almost thirty years. Until recently (due to my own petition) I’ve only dealt with immigration issues on the surface and only as it related to my work, attorney referrals and client’s needs. But thru this exposure, I have personally seen thousands of cases, stories and circumstances.

It seems to me this is a combination of ignorance and simple stupidity (no insult to you or your fiancée intended). But very often people travel or intend on traveling and visiting a foreign country without carefully reviewing procedures, immigration and visa guidelines and some basic laws and regulations, and the consequences if these guidelines, laws and regulations are not followed. I’ve seen this happen frequently with visitors from developed countries such as Japan, Korea, England, members of the European Union and even Americans traveling to other countries overseas. Visitors from underdeveloped and third world countries seem to be more informed as to the whole process, obviously due to the difficultly of been able to obtain a visa and enter legally.

If the intent was to enter, over stay the visa and adjust status, your girlfriend/fiancée would have just stayed, gotten married and filed for an AOS. But her actions raised numerous red flags, overstayed visa, a B1 vs. H1B. Any mention of entering the US with the intent on marrying, entering pregnant and giving birth in the States, working without a work permit are big no no’s with USCIS. (I know the last two are not your case), it seems to me she might have seriously pissed someone off upon her entry. They slammed the book on her with a 5 year ban.

It’s quite unlikely that she will be issued a visa again in the near future. Think this one thru, and if this relationship is that important to you, consider skipping the fiancée K-1 process. Get married in Japan, and look into the process of petitioning her as your spouse and getting a waiver. Your other option is? How’s good is your Japanese?

Good luck.

[Brother Hesekiel 2,235]

The B1/B2 is a visitor's visa, for fun and for business exploration, valid for 6 months (unless the IO at the POE shortens it). Such a visa can be extended once. I did it, a long time ago, and received a 3 month extension. It might be possible to get 6 months, but I have no personal knowledge of that.

While it's okay to help out in the local US office of the Japanese company she works for in Japan, simply to explore the work environment abroad, she can't receive monetary compensation for it in the US.

Entering the US with the intention to either work or to marry is visa fraud. Overstaying the legal presence since 1997 results in a 3 or 10 year (depending on the length of the overstay) ban to enter the US again. Don't know how they got to the magic 5 years, but it might have been 3 years plus the specific circumstances of her case.

I have serious doubt that there is anything she, an attorney, or her company in Japan or the US can do. I'm almost certain that they will deny her any visa and any visa waiver for at least the 5 years in question.

You might have to move to Japan for 5 years if you want to be with your wife. Not the worst thing in the world, as Japan is a lovely place.

Edited July 14, 2009 by Just Bob

[netsatwork 0]

Thanks for all of the thoughtful responses.

I can see this is a very active forum with a lot of people helping. I appreciate it. Thanks to Jim, I now understand better why people seemed to take a different tone with everything. She did not come back with the intent of getting married, as I've said. We really had no idea what was involved visa-wise when we did decide to get married. I had no idea it was so complex. A lot of you guys have the benefit of hindsight on these issues, but I am completely new to B1, fiancée, green cards, bans, and all this stuff. I kinda thought you just got married if you wanted to and applied for a visa. Apparently not. I know ignorance is not a defense, but these laws are not exactly easy to understand. I apologize if anyone felt I was being rude, I just took offense when I felt my fiancée was being accused of fraudulent intentions and lying to immigration officers. Thanks for helping me understand.

Right now our plan was just to try to get her home. Yeah she works for the Japanese company, but she was largely hired to work on her project at the US site and act as a liaison for the Japanese and American teams. If she loses the ability to travel to the US, then I don't know what her job status will be. I am not hopeful. Everything in her life was pretty temporary since she knew she'd be gone for a while and our relationship was the most grounded thing she had. She doesn't have much to go home to. We'll see what happens.

We are really hoping the company just does what they can. I don't expect them to fund our marriage plans and they have already said they will not. I understand that. I offered up the K1 visa option if it would help them get things worked out because my fiancee and I had talked about already. At the time, again, I didn't know what was involved and thought it might help matters. I just wanted to make sure she kept her job and we do feel that they should help do what they can to get her life back to some degree.

IF (and I know it's a big IF) she found a way to get back and work. Can we apply for a fiancee visa and then have her work in the US until that is approved, go to Japan, and then come back to the US on that visa to get married? Any ideas?

Surf2Salsa - thanks for the info. Yes, there were many mistakes. It made for a terrible result. Yeah, if she had known she had overstayed, she never would have flown 12 hours to be sent to jail and then sent back. Her intent was work, but her mentioning of me sealed the doors. Why the recommendation to get married in Japan versus a K1? I have often wondered why people seem to shy away from just getting married? I heard it takes longer, but it seems like it would be representative of a more solidified connection to a US citizen, thus making the process a little easier. No can do on living in Japan. I have a 3 year old that I will not leave and he cannot come with me. Otherwise, I would consider it.

Edited July 14, 2009 by netsatwork

[Surf2Salsa 0]

Yes, the immigration laws are not easy to understand. However, besides our perception of understanding them, USCIS, Customs and Consulate officials are have stacks of cases that they are examining for fraud and intent. This is an additional factor everyone in the process must take into account.

I feel for you and your fiancée, you both had a lifetime of happiness in your grasp, yet because of simple lack of understanding the process it may have been thrown away. Even to this point, if I where a US Consul official, after reading your last post, I could interpret your K-1 petition as not being genuine. Your own statement “I offered up the K1 visa option if it would help them get things worked out because my fiancée and I had talked about already”, think about what you just wrote and what is written in your previous posts.

I’m not 100% sure, but due to your circumstances a spousal petition with a waiver might be more fruitful, less costly, aggravating and time consuming than a fiancée k-1 petition with a waiver. Remember, you need a waiver; you have valid hardships, one being your 3 year old daughter.

The flip side of all of this, “I don’t want to be the one playing devil’s advocate”, but evaluate the relationship and how important it is for you, this one is going to be a tough one. Be smart, be careful, could there be other factors you might not be aware of causing a 5 year ban? Reading between the lines, could there be other issues, family, career, business etc? Is the attorney here or in Japan? Remember, he’s the employer’s attorney, not yours or hers.

Anyway, got to go, good luck, hopefully other members can be more helpful.

[netsatwork 0]

I feel for you and your fiancée, you both had a lifetime of happiness in your grasp, yet because of simple lack of understanding the process it may have been thrown away. Even to this point, if I where a US Consul official, after reading your last post, I could interpret your K-1 petition as not being genuine. Your own statement “I offered up the K1 visa option if it would help them get things worked out because my fiancée and I had talked about already”, think about what you just wrote and what is written in your previous posts.

I understand what you mean. The K1 was not meant to circumvent other laws, we really want to get married. I know everyone is a stickler for intent, but I don't think that intent to maintain your job AND get married is wrong. This is a broad statement, I know, but we want both. If we have to go K1 now, then we are doing it on our own. She will likely not have a job there anyway, so we are definitely doing it to be together. My lifestyle will change dramatically for a while and it is not something anyone does for fun I'm sure.

Thanks again for the insight.

[diadromous mermaid 36]

Much of what I have to add would repeat some of the guidnace offered already, but I will note that if her original return ticket was for April 22, then CBP was correct in noting the I-94 to expire after that date. Even though a visa is valid for a period of a year, it doesn't mean the period of authorised stay lasts a year too. The company should enquire with the individual or agent that changed her ticket to return to Japan on June 26, to see why that issue was not discovered before she was on her way back to the US again. Who knows, it's possible that an extension was applied for but no approval was received in time for her June departure from the US. I;m not sure if that would be of help, but it certainly would indicate that the project for which she had been summoned to the USA was continuing, and that her personal interest in marrying while in the USA was not an indication of an intent to remain.

By the way, what was the date of the return ticket to Japan on her second trip to the US when she was detained in Dallas?

I am not really sure where to post this, but since we are looking for a waiver on a 5 year ban, I guess I'll start here. Here's the story:

I met my fiancee about 4 months ago in Louisville, KY through a mutual friend. She was working in the US through her Japanese headquarters and came on a 1 year B1 visa. According to the visa, she had to go back to Japan before 6 months in the US and stay for a few days, then she could return. Her employer said they would take care of everything and tell her when she needed to leave, etc. We fell in love and spent every day together, then her company told her she needed to return to Japan on 6/26 for 10 days and then come back. We decided I would go with her so I could meet her family. I left Japan July 4th, she came back July 6th and was stopped in Dallas. She spent a day in a holding cell and the night in the Dallas jail because she learned that her visa has expired on 4/22 instead of 7/22 like she had thought. Her company had copied her passport and everything, but never noticed the I-94 showing it expired on 4/22.

First mistake was her company bought her initial plane ticket for arrival in US on 1/22 and departure on 4/22, thus immigration assumed she only needed 3 months here. Second mistake was them not noticing the I-94. The last mistake was that when she got to the US and was in Dallas, she told them about me and out plans to marry, hoping to help the situation. Apparently it made it worse. The company's lawyer tells me she then could not be admitted because she had intent to remain permanantly on a B1 visa. Her true intent was to work, but we had also hoped to get married.

Now she is back in Japan with a 5 year ban and we are waiting to see if the company is going to help us get this worked out. We haven't really heard any news yet. The case is at the US Consulate and we don't want it to sit too long. I wanted to get some feedback on what people thought about getting a waiver on the 5 year ban and the possibility of another visitor/B1 visa for her.

A side-note and back-history, she was denied an initial request for a 5 year B1 last year when she first applied because she was unclear about stressing that her employer is her Japanese company (which it is) and they thought she was going to be an employee in the US. The lawyer was able to apply pressure and get it to a 1 year visa approval. Just wanted everyone to consider that too. She has only a 2 year degree, so I believe she cannot apply for a full, sponser work visa.

Any info will be greatly appreciated. We are considering a K1 visa, but the wait is about a year according to the lawyer and there is still the 5 year ban to contend with. Thank you.

[diadromous mermaid 36]

Was there a notation on her visa/passport indicating Section 212 (7)(A)(i)(I)? If so, then the CBP agent declared her inadmissable since she did not have a valid immigrant visa (used her claim that she was to marry you shortly after arrival and did not pay attention to her claim of work). The 5 year ban would be for Expedited Removal. Nothing to do with misrepresentation, but due to the fact that she was ordered removed at the POE.

[netsatwork 0]

Was there a notation on her visa/passport indicating Section 212 (7)(A)(i)(I)? If so, then the CBP agent declared her inadmissable since she did not have a valid immigrant visa (used her claim that she was to marry you shortly after arrival and did not pay attention to her claim of work). The 5 year ban would be for Expedited Removal. Nothing to do with misrepresentation, but due to the fact that she was ordered removed at the POE.

Yes. It was exactly and only that. ok, so does that mean anything different in terms of waivers either now or after the K1 visa is denied??

[netsatwork 0]

Much of what I have to add would repeat some of the guidnace offered already, but I will note that if her original return ticket was for April 22, then CBP was correct in noting the I-94 to expire after that date. Even though a visa is valid for a period of a year, it doesn't mean the period of authorised stay lasts a year too. The company should enquire with the individual or agent that changed her ticket to return to Japan on June 26, to see why that issue was not discovered before she was on her way back to the US again. Who knows, it's possible that an extension was applied for but no approval was received in time for her June departure from the US. I;m not sure if that would be of help, but it certainly would indicate that the project for which she had been summoned to the USA was continuing, and that her personal interest in marrying while in the USA was not an indication of an intent to remain.

By the way, what was the date of the return ticket to Japan on her second trip to the US when she was detained in Dallas?

I am 99.9% sure no extension was filed. They kept telling her different dates on when to return and all of them were after 4/22. They had no idea and the lawyer indicated that he had requested I-94 info from the company and they never sent it. They just let the 4/22 ticket lapse and she bought a new roundtrip ticket for 6/26 to 7/6. There was no return ticket to Japan purchased and she wondered if that would be a problem, but no one seemed concerned.

[emt103c 10]

Was there a notation on her visa/passport indicating Section 212 (7)(A)(i)(I)? If so, then the CBP agent declared her inadmissable since she did not have a valid immigrant visa (used her claim that she was to marry you shortly after arrival and did not pay attention to her claim of work). The 5 year ban would be for Expedited Removal. Nothing to do with misrepresentation, but due to the fact that she was ordered removed at the POE.

Yes. It was exactly and only that. ok, so does that mean anything different in terms of waivers either now or after the K1 visa is denied??

I explained the answer to this on the other post, check it out. . . But ALWAYS contact an attorney before filing. . .

[netsatwork 0]

Was there a notation on her visa/passport indicating Section 212 (7)(A)(i)(I)? If so, then the CBP agent declared her inadmissable since she did not have a valid immigrant visa (used her claim that she was to marry you shortly after arrival and did not pay attention to her claim of work). The 5 year ban would be for Expedited Removal. Nothing to do with misrepresentation, but due to the fact that she was ordered removed at the POE.

Yes. It was exactly and only that. ok, so does that mean anything different in terms of waivers either now or after the K1 visa is denied??

I explained the answer to this on the other post, check it out. . . But ALWAYS contact an attorney before filing. . .

Got it. Thanks. I'll add it in case someone reads this posting for info on a similiar situation....

"7a just means that her visa was not the proper one (because of the working, and 'intent' to marry) it just means she was ineligible. At this point, she is not charged with Misrepresentation. . .and hopefully the consulate won't try to add it. I would still do some attorney talking in case they think you can go ahead and file the 212 when you start the process. . ."

Thanks again.