overstay & visa approval

[missolichka 0]

hi. i just need some opinions on our case. i will just describe the situation in couple sentences.. i am a beneficiary. i overstayed my visa for a year (couple days over a year).i returned to my homecountry volunteerly because my fiance and i decided to get married and i was pregnant.it may sound funny but i left the US so we could start our new family the right way (i.e. apply for a k-1, get married, etc). our baby was born in Dec.my fiance came over to meet his son. we spend some time together, reported for CBA, did the DNA.... i have an interview coming up and i know that i have an overstay...but... i still have a hope too. i am going to the interview with the baby.my question is: is there ANY hope that i will be approved on my visa? i just want to hear some thoughts from you guys.thank you in advance

[Ryan H 3,796]

You overstayed for a year, that equals a 10 year ban. You will need a waiver.

[missolichka 0]

i know i have a ban..my question was if there is any chance i can get approved?

[Casprd 167]

At this interview, probably not. If I understand the process correctly, you will be denied and given the ban and then once that happens you can file for a waiver. Sucks since even though you overstayed, you at least are trying to make things right. Sad that you will be penalized for this while people who overstay and don't bother to go home are rewarded.

[aguilayserpiente 2]

I sympathize with how stressful this is for you. Some reasonable things to do are:

1. go to your local public law library or law school library to review Kurzban's practice guide. It and other immigration practice guides will identify BIA cases, which you can use to support your case. Carefully, review the grounds of inadmissibility to see which if any apply to you.

2. Carefully review and document your situation. No doubt it is complex and contains numerous factors in your favor, i.e. US citizen and child separated for a period of years, psychological detriment to all family members (documented by a psychologist, MFCC, etc), economic hardship for the child, educational detriment to the child, risk of severence of the familial unit, and extenuating circumstances for the visa violation (illness, injury, fear of returning to homeland, etc). There can be numerous facts and factors (e.g. will the mother be separated from the child who returns to the US as a derivative citizen?).

These appear to be the bases:

a. HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.

b. FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).

c. EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.

d. PERSONAL CONSIDERATIONS - Close relatives in the United States and /or your

country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

e. SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears

of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

f. Any other situation which you feel may help you meet the burden of extreme hardship.

3. I perceive and may be mistaken but the waiver request is to be made at the consulate/embassy:

http://damascus.usembassy.gov/ina212.html

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bb515f56ff55d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

Try to take a deep breath. Remember, one of the top public policy considerations under the INA is family re-unification. In fact, the presumption supporting family unity petitions should be used by analogy to your K petition. Best wishes and congratulations.

[CarolinaSt 2]

hi. i just need some opinions on our case. i will just describe the situation in couple sentences.. i am a beneficiary. i overstayed my visa for a year (couple days over a year).i returned to my homecountry volunteerly because my fiance and i decided to get married and i was pregnant.it may sound funny but i left the US so we could start our new family the right way (i.e. apply for a k-1, get married, etc). our baby was born in Dec.my fiance came over to meet his son. we spend some time together, reported for CBA, did the DNA.... i have an interview coming up and i know that i have an overstay...but... i still have a hope too. i am going to the interview with the baby.my question is: is there ANY hope that i will be approved on my visa? i just want to hear some thoughts from you guys.thank you in advance

Well I guess it depends on the type of visa you had. I know of a girl who overstayed a J1 for over a year and was approved. The petitioner in the states talked to a lawyer and this lawyer wrote a letter that was presented on the the day of the interview. This is the link you can look at to see if your case is similar to this girl http://www.visajourney.com/forums/topic/297779-overstay-and-10-ban-what-can-we-do/page__st__15

This is the answer of one of the members. Thanks to this, the girl I'm telling you about could solve her problem:

"OP - you guys don't need a I-601 waiver and your fiance's overstay should not be an issue if she was here on J-1 visa and left the US voluntarily!!!

Her I-94 was marked D/S (Duration of Status), which means she was not told what date she exactly needs to leave the country. This is a loophole that will save you! Unless she was placed in removing procedures, she should be fine!

In the case of I-94's marked D/S one is not considered "out of status" until it is declared by an immigration judge!

Here is the law:

7. Under the revised interpretation, aliens admitted for duration of status generally will not/not be subject to 222(g), regardless of their activities in the U.S., unless either:

(A) INS finds a status violation while adjudicating a request for an immigration benefit, or/or

(B) An Immigration Judge finds a status violation in proceedings against the alien.

8. Under the revised interpretation, a 222(g) refusal of an alien previously admitted for duration of status may not be based on the Conoff’s assessment of whether the alien did or did not maintain status. For example, even if a former F or J visa holder admits in his/her visa interview that he/she stayed in the U.S. months or years after studies ended, or worked without authorization, or never enrolled in school or undertook any studies at all, or never engaged in practical training that was authorized, the alien would still not/not be subject to 222(g), absent a prior finding of status violation by the INS or an Immigration Judge under the circumstances set forth in Para. 7.

Link: http://www.americanlaw.com/051296.html

Please research more (www.immigrate2us.net) or find a really good immigraton lawyer. Someone here suggested Laurel Scott, who specializes in cases like yours.

Your chances of bringing your fiance/wife back home are really high!

GOOD LUCK!"

[CarolinaSt 2]

By the way, the member who posted that answer is "mjaskiew". Maybe you can contact that person for help. Good luck!

[aguilayserpiente 2]

Well I guess it depends on the type of visa you had.

Here is the law:

7. Under the revised interpretation, aliens admitted for duration of status generally will not/not be subject to [iNA Act section] 222(g), regardless of their activities in the U.S., unless either:

(A) INS finds a status violation while adjudicating a request for an immigration benefit, or/or

(B) An Immigration Judge finds a status violation in proceedings against the alien.

Please research more (www.immigrate2us.net) or find a really good immigraton lawyer. Someone here suggested Laurel Scott, who specializes in cases like yours.

Your chances of bringing your fiance/wife back home are really high!

This is an excellent lead by CarolinaST. The OP would benefit by pulling cases or the Code of Federal Regulations at the practice guides, if any, applying the interpretive guidance. I located the CPB field manual confirming the interpretive position taken by the various agencies of the State Department: http://www.srwlawyers.com/Portals/0/CBP%20Inspectors%20Field%20Manual.pdf . With the case law and regs, the OP should feel more secure as to how to proceed and can defend that position if needed by citing to the law. Good luck.

Edited May 21, 2011 by aguilayserpiente

[Aztec&Taino 144]

i know i have a ban..my question was if there is any chance i can get approved?

You will be denied, at which point a waiver will need to be filed. You should have really gotten married in the US and file for AOS, even though you had overstayed your visa the subsequent marriage to the US citizen AND not having left the country would have meant that your AOS could have been approved.

[A + M 29]

You will be denied, at which point a waiver will need to be filed. You should have really gotten married in the US and file for AOS, even though you had overstayed your visa the subsequent marriage to the US citizen AND not having left the country would have meant that your AOS could have been approved.

Yes, this is exactly what I was gonna say! Good luck!

[aguilayserpiente 2]

You will be denied, at which point a waiver will need to be filed. You should have really gotten married in the US and file for AOS, even though you had overstayed your visa the subsequent marriage to the US citizen AND not having left the country would have meant that your AOS could have been approved.

This is a very stressful time for the OP. The CBP field manual provides at section 15.15(e)(2)(A)& (B):

(2) Treatment of nonimmigrants. The treatment of nonimmigrants under section 212(a)(9)(B) and 222(g) of the Act depends on whether they were admitted until a specific date, or whether they were admitted for duration of status (D/S).

(A) Nonimmigrant Admitted until a Specific Date. Nonimmigrants who were admitted until a specific date are subject to section 222(g) when they remain in the United States after the date noted on their Form I-94. They are subject to section 222(g) before the I-94 expiration date

only if there is a formal finding

of a status violation resulting in termination of the alien’s period of stay authorized by the Attorney General. The Service may make such a formal finding while adjudicating the alien’s request for an immigration benefit, such as extension of stay (E/S), change of status (C/S), or reinstatement. The formal finding of a status violation resulting in the termination of the alien’s period of stay authorized by the Attorney General may also be made by an immigration judge in the course of removal proceedings.

(B) Nonimmigrant Admitted D/S. Nonimmigrants who were admitted D/S are subject to section 222(g) only when there is a

formal finding of a status violation by the Service or by an immigration judge

, resulting in the termination of the period of stay authorized by the Attorney General.

(emphasis added)

Aztec & Taino, given that the CBP field manual interprets INA section 222(g) as exempting those visa violators for whom there is no formal finding of violation, please share why the Field Manual's interpretation of the regulations and INA should not apply.

Even if there is no regulatory exemption for the OP pursuant to the field manual or explanatory letter's interpretation, I would like a citation to a regulation and/or case law indicating that the OP cannot apply for a hardship waiver simultaneously with the K1 Petition and/or that the OP would not be eligible for a waiver based on their circumstances. An application of the law to the facts would be very helpful.

22 CFR section 41.101 (b) & (c) indicate that a person can apply for a waiver abroad (if it is needed at all).

The 2 day overstay of the Visa is certainly supportive of a waiver, if one is even needed at all.

[missolichka 0]

thank you all for your thoughts and especially to those who gave me some hope

good luck to all of you

[Gary and Alla 3,694]

i know i have a ban..my question was if there is any chance i can get approved?

No. You will be denied. You will then have to apply for a waiver. You cannot apply for a waiver without having a denial so you are on the right track

[Gary and Alla 3,694]

The 2 day overstay of the Visa is certainly supportive of a waiver, if one is even needed at all.

Unless I mis-read something, her overstay was for One year and two days. Not two days. The best thing to do would have been as above...get married and file for AOS, but that is not an option now.