F-1...Overstay....Married to 2be USC next month...Can I go back to USA

[Sunanda 0]

I entered USA in 2000 on a student (F1) visa. The I-94 on my passport says F1 D/S. I stayed in school till 2002 after which i dropped out of school. No one from school or any immigration representatives from US contacted me. I was never caught or have any criminal or any other kind of offense. I stayed in the US till 2008. My student visa was approved from Aug 2000 to Aug 2005. I had paid taxes while I was in school till 2002 but after that since I did not go to school I did not file any taxes.

After that I married my wife ( who was on green card since 2005) in 2007. She has an excellent career (nurse) and a great job in US. Meanwhile I moved (left voluntarily) to Canada and became a permanent resident here in Canada since 2008. My wife is eligible to become a USC next month. It has been really hard for us to stay apart. She has been staying in US while I have been in Canada. I am about to complete my MBA here in Canada in few months. I want to go back to US and live with my wife there. She has traveled to Canada to visit me only thrice since we started living apart.

My question is that I learnt from here and other websites that if an Immigration Judge or any other US govt officials never contacted me or was ordered removal from the country. Am I still subjected to 10 yr ban. Is there a chance that I will be waived I 601 (hardship for USC). What are my chances for approval?

Please guide..........and help

Thank you

[sachinky 465]

You should be subject to the 10 year ban due to your 3 year overstay and the fact that you were out of status for 3 years prior to your visa expiring as you violated your F-1 status.

I could be wrong though since F-1s are technically governed by their D/S I-94. Someone else will come along shortly.

[VanessaTony 3,567]

I entered USA in 2000 on a student (F1) visa. My student visa was approved from Aug 2000 to Aug 2005.

The I-94 on my passport says F1 D/S.

I stayed in school till 2002 then dropped out.

I stayed in the US till 2008. (3 year overstay from visa)

I had paid taxes while I was in school till 2002 but after that since I did not go to school I did not file any taxes.

I moved (left voluntarily) to Canada and became a permanent resident here in Canada since 2008. I was never ordered removed or went before an immigration judge.

My wife is eligible to become a USC next month.

Questions:

1. Am I still subjected to 10 yr ban.

2. Is there a chance that I will be waived I 601 (hardship for USC). What are my chances for approval?

1. Yes. Overstays of more than a year (365 days) = 10 year ban

2. No. No waiver for hardship. You would also need to prove that your wife cannot move to your country (which is Canada at the moment). Not just "the money's better in the US" or anything like that. But reasons that cannot be overcome.

Also, while no-one found you after you dropped out of school, there will be a note in a file somewhere that you stopped studying in 2002. You staying also violated the terms of your study visa. I don't know if there's a penalty or something like that.

It looks like your wife should look into moving to Canada, or to a town closer to the US/Canada border and you do the same.

Also, why doesn't she visit you more often? Money?

[emt103c 10]

These guys are not correct.. D/S means no overstay unless declared by an immigration judge. . .no need for a waiver. In fact, if you had stayed in the US, you could have simply adjusted status. . .

Edited May 10, 2010 by emt103c

[Sunanda 0]

These guys are not correct.. D/S means no overstay unless declared by an immigration judge. . .no need for a waiver. In fact, if you had stayed in the US, you could have simply adjusted status. . .

Thanks Emt....I did actually talk to a lawyer who told me what u stated about D/S rule. And he told me it was possible for me to go there to US

[emt103c 10]

Do not try to travel there without the visa though. . .the border patrol does not have to abide by that D/S rule and could give you an expedited removal for simply trying to enter again. . .get the visa, then go.

[Bobby+Umit 161]

Do not try to travel there without the visa though. . .the border patrol does not have to abide by that D/S rule and could give you an expedited removal for simply trying to enter again. . .get the visa, then go.

Are permanent residents of Canada allowed to enter the US without a visa? Or does the US allow Canadian LPRs the same privilege that the US LPRs enjoy?

Your correct in the D/S - unless he went before an IJ, he didn't occur any overstay. Not withstanding, they may haul him off to one when he tries to re-enter, then gets his time before the IJ.

Then - the IJ may judge he indeed violated the visa, and be given a ban.

I would recommend going the CR-1 route - that way, any issues would be taken up at this interview, and if a waiver is needed, you would know about it.

[emt103c 10]

Your correct in the D/S - unless he went before an IJ, he didn't occur any overstay. Not withstanding, they may haul him off to one when he tries to re-enter, then gets his time before the IJ.

Then - the IJ may judge he indeed violated the visa, and be given a ban.

I would recommend going the CR-1 route - that way, any issues would be taken up at this interview, and if a waiver is needed, you would know about it.

It's not actually like that, the ban is not incurred retroactively. If he was still in the US, and "hauled before the IJ" as you put it, then he would be out of status as of the day of the determination. He would then start accruing illegal presence and after 180 days, would have a 3 year ban. . .

If he tries to enter right now, he has no illegal presence (as determined by the rule. . .) but would most probably be stopped by border patrol no matter what passport he was on. They would not even have to use an IJ, they could just do an expedited removal and give him an automatic 5 year ban. . .no IJ, no judicial review.

[leahandlucas 15]

nice reply emt103c!

[emt103c 10]