Visa Overstays

[Tom_Jim 40]

I wanted to get opinions regarding visa overstays who successfully adjust status to that of permanent residence, remove conditions and then apply for naturalization. Part 10, Section D, question 15 of the N-400 asks:

"Have you ever committed a crime or offense for which you were not arrested?"

Would it be considered and "offense" or "crime" if one overstayed one's visa (i.e., H1B, B1, etc.) and would one need to answer "yes" to this question? Curious to know if this would taken into consideration during naturalization.

Thanks.

[Harsh_77 718]

I think yes - if you overstayed any of your B1 or H1 you should mention that in the form, here is my reason to do so. If you do not mention and in worst case scenario if they find it that you have overstayed in past and did not mention it, they can consider your app as a fraud and you trying to hide the information from them.

I feel it would be much easier to face them by telling truth, and ok comitted mistake in past wht is the penalty, pay the penalty and get done with it.

Sorry - I think I misunderstood the original question. I dont think overstaying your visa is a criminal offence, as long as you did not had to go thru deportation routine.

Edited July 26, 2010 by Harsh_77

[princess03 2]

isn't that forgiven when a person adjusts status????

don't they already have it on file that you overstayed???

[Harsh_77 718]

they would have that on file, but the questions is that a criminal/felony offence ?? To which I think its not a criminal offence, assuming this person was not booked under any laws.

Thats my thougt someone lawyer in here ..... need help

[inloveVEN 46]

isn't that forgiven when a person adjusts status????

don't they already have it on file that you overstayed???

Totally agree

I think they have your files with all your information and they already know that you were forgived.

I think you need to find specilized help to clarify that

[engineer21 51]

Would it be considered and "offense" or "crime" if one overstayed one's visa (i.e., H1B, B1, etc.) and would one need to answer "yes" to this question? Curious to know if this would taken into consideration during naturalization.

Thanks.

Well if you look at the INA on grounds of inadmissability, there are 2 separate sections: civil grounds of inadmissability and criminal grounds. overstays are in the civil section.

So IMO it implies that overstays are not considered a criminal offense.

There was a bill that proposes to (among other things) change this law such that overstays are considered a criminal offense.

This is bill H.R. 4437. It passed in the house of representatives, but never made it for a vote in the senate.

I don't know if any other bills trying to do the same has been introduced since then though..

[Brother Hesekiel 2,236]

No need to guess. Overstaying one's visa is a civil infraction, not a crime, not even a misdemeanor. For that reason people who overstay do not be put in front of a judge and charged with anything, but simply asked to leave. That's it.

Entering the country without inspection (and thus without the consent of the US Government) is a crime, however. In the first case the US Government knows whom they invited; in the second case they have no clue.

I like to use this comparison.

You invite somebody to a party at your house. The party is over and the guy still didn't leave. So you ask him to leave, and if he does, he's not guilty of a crime, as it was you who allowed him to come.

But if you come home and there's a guy in your house who entered without you knowing it, maybe by jumping the fence and getting in through your back door, he's guilty of breaking an entering.

This, people, is the difference between somebody who entered the US with permission but overstayed and was never asked to leave, and somebody who is guilty of EWI, and for that very reason somebody who overstayed their visa can become a LPR, whereas an EWI can't.

Edited July 26, 2010 by Just Bob