Waiver needed for unlawful presence prior to 1997

[Ian H. 207]

Hi,

I would just like to confirm with others who have need waivers for unlawful presence if the following is true. According to the FAM link I will post below, a waiver of inadmissibility isn't needed for unlawful presence prior to April 1, 1997.

Here is the background info:

My grandma became a USC a few years ago and I helped her submit the petition for her eldest son, my uncle, who is the only one of her children still left in the DR. He is legally married, but separated from his wife (informally) so he is F3 category. He came on a B2 visa in 1990 and left in 1995, so he overstayed by 5 years.

Since this was almost 20 years ago, the 10 year bar is long past and it looks like he wouldn't have been inadmissible anyway because the unlawful presence was prior to 1997. My grandmother never petitioned him before, not because of this, but because she wasn't a USC.

So is it perfectly safe to assume that his unlawful presence wouldn't cause him a visa denial when the time comes based on these grounds? How does it go when they see that he has a previous overstay? I know that they verify this, but will the CO give him a hard time? He doesn't have that passport anymore, I think he lost it. Thanks.

[Boiler 45,670]

The only thing I can think of evidence he left when he did.

[Ian H. 207]

Wow, I completely ignored the fact that the US doesn't have an exit immigration system and there is no official record of when he left the country. I was reading the DS 260 questions and based on the wording it looks like he may not even be asked since it only asks if you were unlawfully present within the last 10 years.

Here's hoping for the best.

[Boiler 45,670]

I thought it asked for all your us trips.

[Ian H. 207]

Oops, I didn't see that part. But I was referring to the unlawful presence since it was more than 10 years ago, they may not ask about it. In any case if they do ask about it, is the burden of proof that he left the US in 1995 on them or on him?

[Boiler 45,670]

20 years ago so unlikely to be an issue.

His responsibility.

[Ian H. 207]

I understand, of course by the time he gets an interview it would be more like 30 years. I will see what kind of evidence he may have. The only evidence I can think of is his 12 year old daughter, whom he couldn't have if he were in the US.

Thanks.