My wife was not denied but told maybe have to file i601

[YLMVLJ 0]

Hi visajourney,

Well in a nutshell my wife back in her late teens was forced by her mom to come to the USA she was here on a 3 month visa and stayed 10 months after that visa expired now in the interview a consulate officer said becaise of this which by the way happend 9 years ago today she would have to file a i 601 , do when i heard this i went histerical, depressed. Amd so on but after i got a clear mind and called and immigration office and they said that it looks like the consulate got there math wrong because they are suppose to start counting after visa is expired and if the visa expired on june 24 2004 then starting then is when unlawful entry in usa would begin which to mydateandtime.com is 318 days which is less then a year so supposably would only be banned 3 years so as this was 9 years ago if what i was told is accurate she would not have to file i 601 because she is no longer banned.... Im i right ? is the immigration office i spoke to accurate with the information that have given me? will i have to file an i 601 for my wife?

P.s the date of entry wheb she came was march 24,2003 on a 3 month visa which would have expired june 24,2003

She return to ecuador May 8,2004 this is only a 10 month over stay please help anyone that hs this info

Thank you

[fantonledzepp 159]

I'm sorry, but that information doesn't seem right. She entered and overstayed 10 months. That's it. The visa expiration doesn't have anything do with that, that means that visa could've been used up until that date. Now, I don't know much about waivers, and it seems like the general consensus on the forum is that you should have it prepared by a competent immigration attorney.

Also, you mentioned she was in her late teens when she entered and was forced to stay. How old was she really? It seems like that will also be a factor in the adjudication of the waiver. Was she over 18 when she entered the US?

[YLMVLJ 0]

Yes just graduated from highschool and like alot of people at that age still living and doing what mom and dad say

[oohpartiv 484]

I'm not 100% sure on this, but if she was over 18, I'm pretty positive that DOES invoke the 10 year ban, then. If it's under six months, I believe that's when it's only a 3 year ban. Honestly, dealing with this embassy I would just do as they say, as trying to prove to them that they're wrong is like throwing rocks at the moon. You'd probably have the most success just filing the waiver as they told you to.

Lots of luck!

[YLMVLJ 0]

What i was told was that if your in the country illegally forover a year its a ten year ban if less then a year but over 180 days its 3 years then if under 180 days no ban

Can any one confirm this

[fantonledzepp 159]

What i was told was that if your in the country illegally forover a year its a ten year ban if less then a year but over 180 days its 3 years then if under 180 days no ban

Can any one confirm this

I believe that is correct. Not 100% sure though.

So she stayed over a year? Right?

[oohpartiv 484]

I believe that is correct. Not 100% sure though.

So she stayed over a year? Right?

No, he said she overstayed 10 months. Still, though, I find it really hard to believe the consulate would be willing to bend on something like this. You'd probably have to get some serious legal help involved, and with all the money and time you'd have to spend to get them to realize they'd made a mistake, you probably could've gotten the waiver and the visa approved.

[fantonledzepp 159]

I'm sorry, I was confused.

I went back to read the original post, and was confused. But I saw it in post script.

[YLMVLJ 0]

Well i guess its up to the consulate now and i would have to wait for there response

[Hypnos 6,576]

Overstay of between 180 and 364 days gives a three year bar from the US, which from what you indicate she has already served and so no I-601 waiver would be required.

Not that it sounds like it will make a difference, but you should also bear in mind that minors do not accrue illegal presence until they turn 18.

[NepaliDreamer 8]

Honestly, dealing with this embassy I would just do as they say, as trying to prove to them that they're wrong is like throwing rocks at the moon.

Immigration Law is complicated, it's not so much trying to prove someone is wrong as it is trying to make sure we understand where we stand under the law. For something this complicated hire an attorney. If you don't have the money for that do as the Embassy says since consulars are given sole authority under the law to adjudicate your case.

From Adjudicator's Field Manual:

10.15 Exercise of Discretion; Uniformity of Decisions.

Although all types of adjudications involve proper application of laws and regulations, a few also involve an exercise of discretion: adjustment of status under section 245 of the Act, change of status under section 248 of the Act and various waivers of inadmissibility are all discretionary applications, requiring both an application of law and a consideration of the specific facts relevant to the case.

Speak with a lawyer.

[Julie y Pat 67]

If the consulate thinks there is a ban in effect, a way to get them to see otherwise is to actually file the I-601. If there is a ban to be waived, USCIS will adjudicate, if there is no ban to be waived, USCIS will inform the consulate.

[YLMVLJ 0]

Thank you all for the help i will definatly speak with a attourney and see the best action to take on this matter i really appreciate it