Overstayed and going back to my husband in the US

[amandawright 0]

Hi everyone...

I'm not sure if this is the right place to post this, or if this has been covered. I tried searching for some answers but it all got very confusing :/

This is my situation...I am Canadian and I married an American. I went to the US to be with him and we were going to start the process of getting me a Visa but we encountered some marital problems and so I went back to Canada, where I am now. While I was in the US I overstayed by about 5 months.

We have decided that we are both committed to our marriage and want to make it work. Unfortunately I'm now in Canada, and from my understanding I cannot re-enter the US because I overstayed (a 3 year bar, correct?). I have read that my American husband can fill out the I-130 Petition for Alien Relative form and that could gain me entry back to the US within a year. Is this information right? Do I have any other options?

Also, I have 2 children from a previous relationship. I have sole custody of them and their bio father is not in the picture at all. What am I up against with getting them Visa's? AND, if my husband has to fill out the I-130 for me, does he have to do a form for each of my children as well, or are they included on my form and visa (I saw an area on the I-130 to list my children so I figured that they are just included on that one form and don't need separate forms)?

Thanks in advance for your help! I know I should have stayed in the US and worked things out because I would just be facing an adjustment of status, but alas, here I am.

Edited July 16, 2014 by amandawright

[belinda63 3,055]

Each person wishing to immigrate must have an I-130 filed for them.

You have a three year ban and will be denied a visa at the interview. At that time you should be told you can file a waiver.

[Ian H. 207]

That isn't correct. Unlawful presence and the 3 year ban only apply when you accrue 180 days or more but less than a year of overstaying. Meaning if you only overstayed for 5 months you are fine and not subject to the ban. The overstay period starts the day after you were supposed to leave, not when you entered the states. Feel free to look it up on google, the uscis website or ask an immigration lawyer. The visa application would not be denied based on your overstay because it specifically asks if you stayed unlawfully for 180 days or more. If they ask if you if you ever overstayed, tell the truth. Your application will not be denied based on that because the law is very clear on that. Also, he has to file separate petitions for you and each of your children. He will petition you as a spouse and your children as his stepchildren. As long as your marriage occurred before they turned 18, and they immigrate before 21, they will be permanent residents along with you. If you have been married for less than 2 years when you immigrate, you and your children will be issued conditional cards and you have to remove those conditions 90 days before they cards expire. Here is a link on unlawful presence: http://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers

Each person wishing to immigrate must have an I-130 filed for them.

You have a three year ban and will be denied a visa at the interview. At that time you should be told you can file a waiver.

[aaron2020 11,652]

Hi,

You do not have a ban since your overstay was less than 6 months.

Your husband can file an I-130 for you. It will take about a year for you to get the immigration visa.

Your husband can file for any child if he/she was under age 18 when you married. Each child will need his/her own I-130. Your children are not included on your I-130. Listing your children in the I-130 for you is for biographical purposes only.

There is no other options.

Best of luck.

Edited July 16, 2014 by aaron2020

[belinda63 3,055]

Nevermind, mind not working today. Yes, 5 months doesn't mean a ban. Sorry to scare you.

[amandawright 0]

Apparently I'm very confused, lol. There's so much info out there it gets overwhelming. So I'm NOT barred, even though I was in the US for 11 months total including my 6 month allowed time as a tourist. This is fantastic news, lol!

Could I be denied re-entry at all? I know I can be denied for any reason, depending on how nice the border agent is that day But could my time in the US cause them to say no to crossing the border?

Okay, so separate forms for me and my children, meaning $420 for each form?

[aaron2020 11,652]

Apparently I'm very confused, lol. There's so much info out there it gets overwhelming. So I'm NOT barred, even though I was in the US for 11 months total including my 6 month allowed time as a tourist. This is fantastic news, lol!

Could I be denied re-entry at all? I know I can be denied for any reason, depending on how nice the border agent is that day But could my time in the US cause them to say no to crossing the border?

Okay, so separate forms for me and my children, meaning $420 for each form?

Not having a ban does not mean you will be allowed back into the US.

You violated the free-visa privilege for Canadians by overstaying for 5 months. It's extremely unlikely that you will be allowed to re-enter the US without a visa.

[Teddy B 17,252]

If you're a Canadian citizen and entered the US a tourist, and you weren't given a mandatory exit date by border patrol, you're not subject to an automatic ban period. Canadian tourists are admitted as Duration Of Status and the only way you would be eligible for the ban would be if you were ordered to leave by an immigration official such as a judge and disobeyed that order.

However your chances of getting re-entry as a tourist anytime soon are probably very slim. File for the proper marriage visa and your overstay probably won't be an issue.

Edited July 16, 2014 by Teddy B

[aaron2020 11,652]

You will need a visa to re-enter the US due to your overstay.

A person with a ban would not qualify for a visa.

It's $420 each. For three I-130s, it's $1260.

[amandawright 0]

Thanks for all the help so far. I just want to clarify...is the I-130 all we need to fill out for the 3 of us? I spoke with an immigration lawyer and was told that I needed an IR-1 visa for myself and IR-2 visas for my children, and the I-130 form was just part of that application process and that there are 100's of forms. He said the only way we can get into the US is with those IR visas. Will just the I-130's get us into the US or was the lawyer right?

He also said I need a notarized letter from my children's bio father giving permission for them to leave the country and move to America. Is this true as well?

I also read that right now it takes 5 months to process the I-130's. Does that mean it takes USCIS 5 months to get to the form, or 5 months and you get a visa? Sorry for so many questions!!!

[aaron2020 11,652]

Thanks for all the help so far. I just want to clarify...is the I-130 all we need to fill out for the 3 of us? No. There are other forms and other fees. I spoke with an immigration lawyer and was told that I needed an IR-1 visa for myself and IR-2 visas for my children, and the I-130 form was just part of that application process and that there are 100's of forms. He said the only way we can get into the US is with those IR visas. Will just the I-130's get us into the US or was the lawyer right? The I-130s alone will not get you into the US. The lawyer is right.

He also said I need a notarized letter from my children's bio father giving permission for them to leave the country and move to America. Is this true as well? Yes, it's true.

I also read that right now it takes 5 months to process the I-130's. Does that mean it takes USCIS 5 months to get to the form, or 5 months and you get a visa? Sorry for so many questions!!! You do not get the visa after the I-130 is processed. You still need to pay the fees for the DS-260 and the I-864. You need those forms and supporting documents.

Please read the Guides. Your answers are in there. While the participants on here are more than happy to help you, this is a do-it-yourself site and you need to at least read the Guides which includes an outline of the procedure. After you read the Guides, come back with your questions.