Fiance did not realise he may have overstayed a visa until after the interview...what to do??

[sostressed 6]

Hello,

We made it really quickly through the petition process and had our interview yesterday morning. My fiance and I have been living together for three years, we have a son together, we own property together that we live in together, and we have been formally engaged for over two years. Our case, in terms of our relationship, should be rock solid.

However, during the visa interview my finance was asked about his prior trips to the USA. He answered, to the best of his knowledge, all their questions. We were puzzled why they then denied his visa and sent us back with a letter requesting a full copy of his prior passport with his prior visa in it from ten years ago. I was not able to ask any questions of the officer at the interview because I was dealing with our squirmy one-year-old, so I didn't even realise there was an issue until we got back home (we had to travel for a day to get to the interview).

I started investigating the issue further and it would seem that for the last decade my finance has genuinely believed he had a one-year visa to the USA in 2004 and that he only stayed for ten months of it. Essentially, he wasn't paying attention to the immigration officer on entry and somehow missed the fact that the I-94 is the bit that gives you permission to stay - the validity date on the visa itself is not giving you a year to be in the States, but rather a year in which to enter the States. Seven years later he then re-entered the USA for a few weeks, and after that has also gone back twice for visits of about six weeks each. He was never notified by anyone that there had ever been an issue, and so truthfully (in his mind) put on his K-1 application that he had never overstayed a visa. In fact, we still are only guessing that might be the problem based on "internet research" we did last night.

Now I am petrified that if this is the issue it has completely destroyed our chances of moving our family to the USA. I have to go because I have accepted a job offer there - the sort of job I have been trying for five years to get, and likely will not get again - and everything is all set for us to go back (I have been living in Australia for the last six years).

They did take his passport at the immigration interview and they still have it, so I think that is a positive sign that they do intend to give him the visa....but now that we have worked out what the problem might be we are both so scared that it will render us incapable of ever going back. If he is excluded from the USA then so am I, because I cannot leave my family. And there goes my career, as well as my ability to support my family at the level we have been enjoying thus far, our ability to keep paying our mortgage, and so forth....

Does anyone have any idea what the most likely scenario is from here on out? We have sent immigration the copy of his passport as requested (they only wanted an email scan, not the original)...we are just not sure what to do and I can't stop stressing about it. If he had even suspected he had overstayed, he would never have answered the application question with "no" when he filled it out. And of course, if he had known while he was in the States ten years ago he would have never overstayed in the first place...provided, of course, that he actually DID overstay, since at this point we are still guessing that is the problem. We don't actually know if he did, but it is the only thing I can come up with because I overheard the officer at the interview say that everything else in our packet looked good.

Thanks so much for the thoughts....

So Stressed!!

[Free.bird 2]

What was the date given on I-94? If he was given 6 months to stay in USA, and he stayed for 10 months, he has overstayed by 4 months, so he will not be banned (as far as I know, overstay of 6 months to 1 years triggers 3 year ban, but no ban for overstay of less than 6 months). If that's the case, you should not worry and this will be resolved soon.

[Hypnos 6,576]

You would need to post the exact dates to get a definitive answer (the date he entered, the date on his I-94, and the date he left).

It's possible that he has a bar, but unless he overstayed by a year then it would only have been a three year bar which would have expired years ago. They may try to ding him with a misrepresentation charge for not disclosing his prior overstay, but I doubt this would rise to the level of material misrepresentation which would deny him the visa.

Edited September 10, 2014 by Hypnos

[Ian H. 207]

The problem isn't the overstay because as the other member noted it could have been only 4 months if he was originally given 6 months, which is possible he was if he came on a visa. The problem is that he accidentally claimed on the application that he never overstayed. I'm not sure how serious of an issue that is and if it can be overcome. You have to look at the exact wording of the question. Do you know if you can write it here or remember exactly what form it was? It's possible that the wording may not be specific, but I wouldn't know. Hopefully, all goes well. I wish I could give you a definitive answer.

[sostressed 6]

Wow, thanks for the quick answers....and although anything could happen it does make me feel better to see some positive responses.

We don't know what was on the I-94 because it is missing from his passport...it could have been anything. He was honestly flabbergasted to hear that such a thing ever existed...just not paying attention.

But he stayed from June 2004 until April 2005 thinking it expired when the B1/B2 validity date expired, which was in June 2005.

I suppose I should ask if anyone knows what the process might be from here...if we just wait to see what happens first or if we should prepare for a long and drawn out process of rectification.

Thanks again!

[Free.bird 2]

I am 90% sure he will not have a ban for overstay, because a) it would have expired already b) seems like he only overstayed for 4 months, because usuall length of stay given on B1/B2 visa is 6 months). Next, about misrepresentation. I doubt that would be the case. I read (from credible source) that misrepresentation bar cannot be applied if the information can be seen in consular system, (or whatever the system they use is called), so, if you say you have not applied for visas, but you actually have, and consul sees it in his database, he cannot apply misrepresentation charge. I might be mistaken, but this is just my insight, and I am not a lawyer.

[iawait 9]

Wow, thanks for the quick answers....and although anything could happen it does make me feel better to see some positive responses.

We don't know what was on the I-94 because it is missing from his passport...it could have been anything. He was honestly flabbergasted to hear that such a thing ever existed...just not paying attention.

But he stayed from June 2004 until April 2005 thinking it expired when the B1/B2 validity date expired, which was in June 2005.

I suppose I should ask if anyone knows what the process might be from here...if we just wait to see what happens first or if we should prepare for a long and drawn out process of rectification.

Thanks again!

There is definitely no ban for overstay. But the CO could hit your fiance with a misrepresentation ban which is a lifetime ban. It can be waived with an I601 waiver. But, it is almost a 1 year process. But, it is entirely up to the CO's discretion. Wish you the best of luck and hopefully the CO rules in your favor.

Regarding the I-94, it is a piece of paper that you receive at the airport which shows how long your entry is good for. When you depart the US, the airline takes it out of the passport and send it to the CBP sorting facility where it may or may not be entered into the system.

Now the CO might just want to see the kind of Visa your fiance received 10 years ago. They might just want to pull up the last visa application that your fiance submitted at that time just to make sure that he hasn't lied in that regarding kids and marital status etc. Ths information might only be available by inputting the last Visa Number into the computer. So, don't stress too much and have faith.

Edited September 10, 2014 by iawait

[Harpa Timsah 13,258]

They are not going to ding him for misrep based on this mistake.

[sostressed 6]

It feels so unnecessarily complicated to me....the idea of being accused of misrepresentation is so awful, after doing everything we could in the belief that we were answering everything correctly and honestly. Perhaps we should prepare a statement to retract his answer on the application, since we only realised it might be a potential problem less than a day ago. But then again, without his I-94 information we don't even know yet if he did in fact overstay a visa - so can we retract something that we don't know is actually false, or does that just make the situation worse?

Still really scared, but thanks everyone for the comments. It's great to feel like there is a community out there.

[NigeriaorBust 4,087]

People are not admitted on visitors visa for more than 6 months so he had an overstay. His I 94 woud probably reflect what he told the officer at the airport about his intended stay.

[Boiler 43,760]

You said he visited subsequently, how? With such an overstay I would have though another B would have been difficult.

From memory when you apply for a Visa you are asked about all your prior US trips including their duration.

[usmsbow 796]

You said he visited subsequently, how? With such an overstay I would have though another B would have been difficult.

From memory when you apply for a Visa you are asked about all your prior US trips including their duration.

If he's Australian, he wouldn't have needed to apply for a visa for a trip under 90 days.

[Hypnos 6,576]

But he would have still been inadmissible if he had a bar even under the VWP. Entering with a bar could be a problem, but without knowing exactly how long he overstayed it's impossible to say if it's a deal-breaker or not.

[Boiler 43,760]

If he's Australian, he wouldn't have needed to apply for a visa for a trip under 90 days.

Not all Australians are eligible to use the VWP. If that is what he did.

He has a prior overstay.

[sostressed 6]

Well he can't have overstayed more than seven months because he left after ten, and I think the minimum anyone gets on a B is three, correct? Of course I am only looking into all of this now that it has come up as an issue...never thought to do so before. He was a twenty-year-old jet-lagged kid who had a fancy-looking stamp in his passport that said it expired in June, so he made sure he left in April. It was just a dumb mistake, and somehow no one ever picked up on it/told him it was a problem on his way out or on subsequent visits in. Since he only visited again seven years later, presumably a three-year bar would have expired anyway - again, without him ever realising it existed! And yes, if subsequent visits were made via Visa Waiver, then I suppose it never would have come up in an interview either. The reason for the B visa in the first place was because he was doing missionary volunteering, and thought that would mean he got a special visa for that in the first place...never realising until now that a B visa is just a plain old visitor's visa.

Since an overstay is seeming more and more likely (either seven months or four months, depending on whatever he was granted), we have filed a letter of notice to the Consulate requesting that he would like to correct the part of his visa application where he ticked "no - I have never overstayed a visa". Since it was a genuine dumb mistake, happened so long ago, and has no relevance to our current relationship/circumstances of immigration we are now hanging tight in hopes that it will be forgiven. We considered it best to correct the mistake immediately rather than give any impression that it was made wilfully...still just can't quite believe that this could have happened when everything seemed to be all in order!

Hopefully this particular thread is useful for other people who have visited the USA in the past as well...