Previous Overstay ?'s....Worried about this.....

[ladybug2010 0]

It has come to my attention that my fiance does have some overstays of his status from his past. Once, he was laid off while on H1-B and he stayed in the country for 2 months afterwards until he found a new job. Secondly, he was laid off while on TN status and he stayed in the country for 5 months afterwards until he found a new job.

Will these be an issue if we go for an AOS? He will be marrying me and I am a USC. Any advice would be greatly appreciated.....

PS: He has gotten TN "visas" several times since the overstays and they have never been brought up......

Thank you all in advance for responding. This is making me very anxious....

[sciencenerd 56]

It has come to my attention that my fiance does have some overstays of his status from his past. Once, he was laid off while on H1-B and he stayed in the country for 2 months afterwards until he found a new job. Secondly, he was laid off while on TN status and he stayed in the country for 5 months afterwards until he found a new job.

Will these be an issue if we go for an AOS? He will be marrying me and I am a USC. Any advice would be greatly appreciated.....

PS: He has gotten TN "visas" several times since the overstays and they have never been brought up......

Thank you all in advance for responding. This is making me very anxious....

Shouldn't be an issue - he never stayed over 6 months in one go, so no unlawful presence was accumulated.

[ladybug2010 0]

Thanks for the quick response. After your post we are looking at dates and one of his 2 overstays is really close to 180 days he will do some research and see if he can figure out exactly how many days but he is thinking it is 185 days. (this overstay happened back in 2004) If it was longer than 180 days will it be an issue? He has obtained several TN visas since the layoffs occured. He had to go to the US/Canadian border for each TN visa and he was never denied any kind of entry. He has crossed the border numerous times since and hasn't had any problems.....

Advice, PLEASE!!!!

[sciencenerd 56]

Thanks for the quick response. After your post we are looking at dates and one of his 2 overstays is really close to 180 days he will do some research and see if he can figure out exactly how many days but he is thinking it is 185 days. (this overstay happened back in 2004) If it was longer than 180 days will it be an issue? He has obtained several TN visas since the layoffs occured. He had to go to the US/Canadian border for each TN visa and he was never denied any kind of entry. He has crossed the border numerous times since and hasn't had any problems.....

Advice, PLEASE!!!!

It can definitely be problematic. I made my statement thinking about Canadian visitors and it sounds like your husband was not a visitor at the time of his overstays. You can accumulate unlawful presence over multiple stays (it is cumulative), but it sounds like he's definitely under 1 year total. 180 days - 1 year of unlawful presence is a 3 year ban. Since it was back in 2004, it would generally mean that the ban is over, but I don't know if that is impacted by entries during that ban. I think I misunderstood the situation initially and am not sure if what I said applies in your situation, so I would wait until one of the more knowledgeable folks comes along. This is probably worth consulting a lawyer. Good luck!

[ladybug2010 0]

Thanks Sciencenerd for your time and thoughts! I hope a few others will come and chime in, though I guess everybody else is out enjoying themselves on a Friday night! I am hoping that any type of previous overstay would be automatically forgiven since he is marrying a USC but I am not sure if that generally refers to someone AOS on a "current" overstay or if it also refers to overstays from the past. If it does NOT apply to past overstays I wonder if this is something that would even come up during an AOS since it obviously hasn't come up each time my fiance has crossed the border and each time he has gotten new TN visas (and he never has lied in obtaining his TN nor has he ever lied when crossing the border)....

Hopefully some of the VJ experts will be on later tonight or in the morning to give some advice.

[JimVaPhuong 4,863]

It can definitely be problematic. I made my statement thinking about Canadian visitors and it sounds like your husband was not a visitor at the time of his overstays. You can accumulate unlawful presence over multiple stays (it is cumulative), but it sounds like he's definitely under 1 year total. 180 days - 1 year of unlawful presence is a 3 year ban. Since it was back in 2004, it would generally mean that the ban is over, but I don't know if that is impacted by entries during that ban. I think I misunderstood the situation initially and am not sure if what I said applies in your situation, so I would wait until one of the more knowledgeable folks comes along. This is probably worth consulting a lawyer. Good luck!

This is not accurate. Periods of unlawful presence are not accumulated from multiple visits in order to trigger the ban. Read section 40.9 of the Adjudicators Field Manual:

(A) Unlawful Presence for Purposes of the 3-Year and 10-Year Bars Is Not Counted in the Aggregate

Section 212(a)(9)(B)(i) of the Act only applies to an alien, who has accrued the required amount of unlawful presence during any single stay in the United States; the length of the alien’s accrued unlawful presence is not calculated by combining periods of unlawful presence accrued during multiple unlawful stays in the United States.

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-12709/0-0-0-12929.html#0-0-0-1975

It appears from the OP's statements that CBP never determined a sufficient overstay existed to trigger the ban, and so the alien was granted admission subsequent to the previous overstays. The likelihood of them retroactively determining that a ban should have been applied is remote.

In addition, if I understand the OP correctly, her fiance is currently in the United States. Once he marries a US citizen then any current overstay would not be considered in adjudicating his AOS petition. If USCIS determines that a ban should have been previously applied then he can submit an in-country I-601 waiver application. Frankly, I think the likelihood of this happening is very slim.

[sciencenerd 56]

This is not accurate. Periods of unlawful presence are not accumulated from multiple visits in order to trigger the ban. Read section 40.9 of the Adjudicators Field Manual:

(A) Unlawful Presence for Purposes of the 3-Year and 10-Year Bars Is Not Counted in the Aggregate

Section 212(a)(9)(B)(i) of the Act only applies to an alien, who has accrued the required amount of unlawful presence during any single stay in the United States; the length of the alien’s accrued unlawful presence is not calculated by combining periods of unlawful presence accrued during multiple unlawful stays in the United States.

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-12709/0-0-0-12929.html#0-0-0-1975

It appears from the OP's statements that CBP never determined a sufficient overstay existed to trigger the ban, and so the alien was granted admission subsequent to the previous overstays. The likelihood of them retroactively determining that a ban should have been applied is remote.

In addition, if I understand the OP correctly, her fiance is currently in the United States. Once he marries a US citizen then any current overstay would not be considered in adjudicating his AOS petition. If USCIS determines that a ban should have been previously applied then he can submit an in-country I-601 waiver application. Frankly, I think the likelihood of this happening is very slim.

Thank you for the correction - I am glad that I had that wrong!

[ladybug2010 0]

Thanks JimVaPhuong for the very detailed and thoughtful response.

And yes, you did understand our position correctly. My soon to be husband did overstay in the past (one time by approx. 185 days) but he was allowed re-entry without a problem and obtained a TN "visa" (technically status) at the US/Canadian border by CBP.

Would love to hear if anyone else has been in this situation (basically, where a ban could have been triggered but it was not). We were ignorant of immigration laws and thankfully got "lucky."

In our particular case, my husband was laid off on his TN status/visa and he did not know to submit a change of status to tourist. When he did find a new job 185 days later he flew to the border and he obtained a new TN status/visa without an issue. He did not lie at all while obtaining his TN visa.

I understand that people who have overstayed and are out of status at the time of filing for AOS usually have their overstay forgiven when marrying a USC. But what about when someone was Out of Status in the past, didn't occur a ban but they could/should have, then marries and Adjusts Status. Would PREVIOUS overstays make USCIS trigger a retroactive ban? (thank you Jimfor the great answer you gave and your thoughts on the matter!)

If anyone else has been in a similar situation or has further comments please advise.

Thank you so much!

Edited February 21, 2011 by ladybug2010

[JimVaPhuong 4,863]

Thanks JimVaPhuong for the very detailed and thoughtful response.

And yes, you did understand our position correctly. My soon to be husband did overstay in the past (one time by approx. 185 days) but he was allowed re-entry without a problem and obtained a TN "visa" (technically status) at the US/Canadian border by CBP.

Would love to hear if anyone else has been in this situation (basically, where a ban could have been triggered but it was not). We were ignorant of immigration laws and thankfully got "lucky."

In our particular case, my husband was laid off on his TN status/visa and he did not know to submit a change of status to tourist. When he did find a new job 185 days later he flew to the border and he obtained a new TN status/visa without an issue. He did not lie at all while obtaining his TN visa.

I understand that people who have overstayed and are out of status at the time of filing for AOS usually have their overstay forgiven when marrying a USC. But what about when someone was Out of Status in the past, didn't occur a ban but they could/should have, then marries and Adjusts Status. Would PREVIOUS overstays make USCIS trigger a retroactive ban? (thank you Jimfor the great answer you gave and your thoughts on the matter!)

If anyone else has been in a similar situation or has further comments please advise.

Thank you so much!

Yes, well, that's a quandary, isn't it. A ban should have been triggered, but it wasn't, so now the applicant is in the US, supposedly banned but lawfully admitted.

If USCIS determines that a ban should have been triggered, then they would be concluding that the applicant is inadmissible. However, they are left with the problem that the inadmissibility existed when CBP admitted them. Yet, the inadmissible alien is now in the United States having been lawfully admitted. The way they get around this quandary is to allow an I-601 waiver application to be filed while the applicant is in the United States. I-601 waivers are usually filed at a US consulate abroad after a visa has been denied, but they allow it to be filed "in-country" specifically because of circumstances like this.

An overstay ban is one of the easiest inadmissibilities to detect. CBP has all of the records they need to determine if a ban should be applied. They didn't. This implies to me that they don't have any records to indicate he's overstayed long enough to trigger the ban. They know when he entered and left, but apparently they don't know when either his H1B or TN status ended. The question is whether USCIS will know. I'm guessing they won't, but it's always better to be on the safe side.

If I were in your shoes, I would schedule an appointment with an immigration attorney who has experience with I-601 waiver requests, and begin preparing the waiver request. If the AOS is denied then you may have a limited period of time to submit the I-601. If you end up needing the waiver request then you'll be prepared. If not, you'll have thrown some money away on unnecessary attorney fees.

[ladybug2010 0]

THanks JimVaPhuong for all of the great information. I really, really appreciate it!

At what point in the AOS process does the USCIS notify you if a 601 waiver is needed (or at what point do we determine that it is needed?) If they do request this waiver then how does that affect an EAD that was issued as a part of the AOS process?

I do believe I am familiar with an expert in the waivers and we will take your advice and set up an appointment to be prepared.

I also agree with you and tend to think that they were not aware of the overstay and it will be a mute issue but I just want to make sure we are as prepared as possible......

Thanks!