K3 and overstay

[rubeel 0]

My wife finally got her K3 and I-130 approved today.

Now the questions is what are her chances of getting a visa.

She overstayed less than a year and has already been out of the USA for 2.5 years. In feb she will complete her 3 years.

Do you guys think that the consular will reject right away or might approve the app in the embassy

[AbbynSheryl 0]

honestly not good to over stay the visa

that is big no no no no no when it comes to interview

6 months or less than 6 months over stay is about 5 years ban

i wish u all the luck

u can check others advice

good luck

abby n sheryl

[payxibka 10,044]

My wife finally got her K3 and I-130 approved today.

Now the questions is what are her chances of getting a visa.

She overstayed less than a year and has already been out of the USA for 2.5 years. In feb she will complete her 3 years.

Do you guys think that the consular will reject right away or might approve the app in the embassy

if her entry bar has been served then there should be no problem...

[canadian_wife 1,791]

Any overstay under 179 days, does not result in a ban

180 days - 365 days is a 3 year ban and anything over 365 is a 10 year ban.

Did your wife stay more than 6 months?

honestly not good to over stay the visa

that is big no no no no no when it comes to interview

6 months or less than 6 months over stay is about 5 years ban

i wish u all the luck

u can check others advice

good luck

abby n sheryl

[lucyrich 19]

The rules are quite specific, and the officers don't have discretion, neither to increase nor decrease the overstay penalties.

If in fact she accumulated more than 180 days but less than a year of illegal presence, she faces a three year bar on admissibility, starting on the day she left the US.

If she applies for a visa (has her interview) more than three years after leaving the US, the bar has been served, and there is no further bar to admissibility.

If she applies less than three years after leaving the US, the bar is in effect, and she'd need a waiver. But it would probably take longer to get the waiver approved than to let the bar run out, given the timeline you've described.

An interesting question, which I'm not sure of the answer to, is how long the approved I-130 is good for. In other words, is it feasible for her to delay her visa application until after the bar is complete?

Another thing to look into is to be absolutely sure of precisely how long she overstayed. If she was issued an I-94 with a specific expiration date and that date passed, then the overstay timing is probably pretty clear. If she was issued an I-94 with a "Duration of Status" (usually abbreviated "D/S"), then she doesn't start accumulating overstay time until she is told by an immigration judge or by the USCIS that she is out of status.

[rubeel 0]

Well, she did over stay more than 180 but less than a year,

her I-130 took 2.5 years to get approved and now we will get her interview date, her three years are complete in Feb 2010, so i think i should just ask my lawyer to start working on the waiver now rather than later, so in case if the interview does go south and she gets it rejected then we can file the waiver right away.

another question though, for the interview, can i go with my wife to the embassy and can my kids also come along ?

[Fibbidiboo 0]

The rules are quite specific, and the officers don't have discretion, neither to increase nor decrease the overstay penalties.

If in fact she accumulated more than 180 days but less than a year of illegal presence, she faces a three year bar on admissibility, starting on the day she left the US.

If she applies for a visa (has her interview) more than three years after leaving the US, the bar has been served, and there is no further bar to admissibility.

If she applies less than three years after leaving the US, the bar is in effect, and she'd need a waiver. But it would probably take longer to get the waiver approved than to let the bar run out, given the timeline you've described.

An interesting question, which I'm not sure of the answer to, is how long the approved I-130 is good for. In other words, is it feasible for her to delay her visa application until after the bar is complete?

Another thing to look into is to be absolutely sure of precisely how long she overstayed. If she was issued an I-94 with a specific expiration date and that date passed, then the overstay timing is probably pretty clear. If she was issued an I-94 with a "Duration of Status" (usually abbreviated "D/S"), then she doesn't start accumulating overstay time until she is told by an immigration judge or by the USCIS that she is out of status.

I'm not sure that's true. My Fiance is Canadian and retired and spends as much time in the US as possible, but constantly monitoring her days. Recently we were told by an experienced immigration attorney and by two Border Patrol officers that there is no 6 month restriction for Canadians, just a limit of 6 consecutive months. All three said the clock resets each time you go over the border. Nobody---and this is important to us---has been able to refute that. I wish we knew what the right answer was!

[lucyrich 19]

The rules are quite specific, and the officers don't have discretion, neither to increase nor decrease the overstay penalties.

If in fact she accumulated more than 180 days but less than a year of illegal presence, she faces a three year bar on admissibility, starting on the day she left the US.

If she applies for a visa (has her interview) more than three years after leaving the US, the bar has been served, and there is no further bar to admissibility.

If she applies less than three years after leaving the US, the bar is in effect, and she'd need a waiver. But it would probably take longer to get the waiver approved than to let the bar run out, given the timeline you've described.

An interesting question, which I'm not sure of the answer to, is how long the approved I-130 is good for. In other words, is it feasible for her to delay her visa application until after the bar is complete?

Another thing to look into is to be absolutely sure of precisely how long she overstayed. If she was issued an I-94 with a specific expiration date and that date passed, then the overstay timing is probably pretty clear. If she was issued an I-94 with a "Duration of Status" (usually abbreviated "D/S"), then she doesn't start accumulating overstay time until she is told by an immigration judge or by the USCIS that she is out of status.

I'm not sure that's true. My Fiance is Canadian and retired and spends as much time in the US as possible, but constantly monitoring her days. Recently we were told by an experienced immigration attorney and by two Border Patrol officers that there is no 6 month restriction for Canadians, just a limit of 6 consecutive months. All three said the clock resets each time you go over the border. Nobody---and this is important to us---has been able to refute that. I wish we knew what the right answer was!

I'm not sure we're talking about the same thing. I was talking about accumulated ILLEGAL presence resulting in a formal bar on admissibility. It sounds like you may be talking about how much time a Canadian is legally allowed to spend in the US.

Anyway, the source for my statement is INA 212 a 9 b. In some cases, there is a wrinkle on the matter of when the unlawful presence is deemed to begin. This department of state cable discusses it.

http://www.state.gov/documents/organization/87120.pdf