Overstayed, need to leave US for family - what are my options?

[Blue_blood 10]

As everyone already mentioned, you should adjust your status asap and wait for the green card to come in the mail otherwise you will be taking a risk. Otherwise you could return to your home country and file for a spouse visa BUT there might be issues because your overstay will show on their system so the embassy and/or POE might deny entry into the country. My best advice would be to file for an AOS. You already took the risk and overstayed your visa... don't mess it up even more by leaving without a green card.

Good luck!

Thank you very much rinimina. I understand that this is indeed the safest way, just feel like I am letting my family down and am already hormonal because of the pregnancy. It's hard to get a rational thought in you are right with your advice though and I appreciate it!

How Emergency is family emergency? 24 hours? 1 week ? 3 months?

You can do an Infopass request for Emergency AP as test the waters after filing.

You can ask Member of Congress to press for Emergency AP after filing.

How long? Who Knows. If you are expecting a few days, then these are not options based on my understanding.

NO GUARANTED RE-ADMISSION EITHER WAY - See Arrabally Decision - Long Read if you are up for it.

http://blogs.ilw.com/entry.php?5843-Bloggings-Matter-of-Arrabally-and-Yerrabelly-Advance-Parole-no-longer-considered-a-âdepartureâ-under-INA-§212(a)(9)(B)(i)(II)-by-Danielle-Beach-Oswald

As for returning and the ban, there is recent case law guidance on this, but the POE agents are not likely to be briefed on it. The case discusses meaning and intent of a grant in Advance Parole and how it may contradict the literal writings of the INA in reference to bans.

Do you want to have your attorney on standby at the Airport or Call Ahead to the Port Director with advice and you carry a copy of the case law finding. You can print a copy of this opinion as well and be prepared to defend it, but no one can guarantee anything in this department.

What do expect? I can't tell you.

If you exit without AP in your visa class, 485 will cancel on exit, ban will trigger. You will then need a waiver prior to any visa being considered, speak to counsel and do some research. you will need a waiver filed and approved to handle the overstay whether its DCF or non-DCF filing.

If you decide to go and manage the get the waiver, remember you may be able to swing the 319(b) Expedited Naturalization after your LPR without the time requirement due to husband's long term overseas posting!!!

Thank you asiflyer, reading your link now. My father has been in an accident, that is the reason for the urgency.

[Bonnie&Bob 33]

I came home for an emergency also. I was 3 days over my 180 days. Got a 3 year ban. Refused at customs when I tried to go home. We had already filed our 130. I've been waiting for our paper work to be processed for 2 years now and still waiting. You will not be able to return to the USA for any reasons, baby or not....period!!! If you leave the country you will be waiting a very long time before your papers are processed. You also have the issue of getting married immediately after you entered the US. They are going to try and prove you had intent to marry and refuse your application at the inteview. Then you have to deal with the overstay on top of that and you will need to get a waiver and wait even more time after the interview.

[Blue_blood 10]

I came home for an emergency also. I was 3 days over my 180 days. Got a 3 year ban. Refused at customs when I tried to go home. We had already filed our 130. I've been waiting for our paper work to be processed for 2 years now and still waiting. You will not be able to return to the USA for any reasons, baby or not....period!!! If you leave the country you will be waiting a very long time before your papers are processed. You also have the issue of getting married immediately after you entered the US. They are going to try and prove you had intent to marry and refuse your application at the inteview. Then you have to deal with the overstay on top of that and you will need to get a waiver and wait even more time after the interview.

Thank you for your experience, Bonnie&Bob. Did you leave without AP? I am sorry to hear you are waiting this long, it must be frustrating. I want to avoid such a scenario of course, but also feel the pull to help my family at home. Yes, I did get married very shortly after arriving, but there is no intent - we went to the city hall and just did it, it was a crazy, lovely day. I have not heard of anyone whose application has been refused based on this alone (even though I keep reading about the 30/60/90 rule). We have an honest marriage, I have known my spouse for over a decade and am now carrying his baby. Thank you again!

[Blue_blood 10]

I agree with you, there is no set period to adjust status, and you were able to wait before filling the forms... the price to pay, however, is that you give up some freedom of movement in and out of the United States. Or you can leave now, and have a ban. Or stay, and miss important moments with your family. Benefits and drawbacks coming with any choice we make. Hoping your father will get better soon.

Thank you very much boston-montreal, especially for being objective and factual (looking at the previous posters...) in your response. Yes, it is being stuck now between a rock and a hard place. I would recommend anyone that has no reason not to file asap - to file asap you are correct, that emergency at home changed everything. I am listening to the majority of posters and am understanding that waiting for AOS to go through fully is the most sensible choice. Thank you very much again.

[Ms Hogan 295]

I don't want to throw another stressful piece into your dilemma but when are you due? You said you are pregnant. There are pieces there that you should maybe consider as well since if your child is born while you're in Germany you'll be needing to file for paperwork abroad so you can travel back with your baby. I don't know all the details but just something else to put on the scale as you weigh your options. Good luck!

[Blue_blood 10]

I don't want to throw another stressful piece into your dilemma but when are you due? You said you are pregnant. There are pieces there that you should maybe consider as well since if your child is born while you're in Germany you'll be needing to file for paperwork abroad so you can travel back with your baby. I don't know all the details but just something else to put on the scale as you weigh your options. Good luck!

Thank you, I am due later in summer. The process for filing a birth abroad in Germany seems pretty straight forward, child will get US passport and a German one and has to enter on the US one. However, seeing as most people advise me to stay and get through with AOS baby will in all likelyhood be born here (and yes, I have had private health insurance for international travel for years and am not the illegal immigrant draining resources). Thank you again!

[Blue_blood 10]

It is more than a piece of paper. A lot more.

You came to a visa site where most people do it the legal way and then get surprised when we have something to say? If you put your story on the internet, people are gonna have an opinion and you might won't like all of them.

Good luck to you anyway.

Thank you. Yes, I appreciate any kind of feedback as long as it's constructive and somewhat true to the situation and if it is not I still respond but have the same right as the responders to call them out on this. I am doing it the legal way too just late! Thank you again.

[Ms Hogan 295]

Thank you, I am due later in summer. The process for filing a birth abroad in Germany seems pretty straight forward, child will get US passport and a German one and has to enter on the US one. However, seeing as most people advise me to stay and get through with AOS baby will in all likelyhood be born here (and yes, I have had private health insurance for international travel for years and am not the illegal immigrant draining resources). Thank you again!

I don't know your details about how long you may or may not stay in Germany but also noticed that your posts included something about your husband being deployed. Just keep in mind it is HIS information you'll need to present in Germany to file the birth abroad. His photo ID and his birth certificate etc and your marriage certificate of course. I know you have indicated that you've already looked into it but just adding what I know. I'm just thinking about all the hurdles you may encounter.

Does your private health insurance cover having a baby anywhere? That's incredible to me. I've only ever been able to secure private health insurance for emergencies while traveling. I'd actually be interested to know where you were able to find such private insurance because it is something I'd like to have.

I see you are starting lean towards taking care of your AOS here and possibly forgoing the trip. I think that is the best decision you can make given your circumstances.

[Blue_blood 10]

I don't know your details about how long you may or may not stay in Germany but also noticed that your posts included something about your husband being deployed. Just keep in mind it is HIS information you'll need to present in Germany to file the birth abroad. His photo ID and his birth certificate etc and your marriage certificate of course. I know you have indicated that you've already looked into it but just adding what I know. I'm just thinking about all the hurdles you may encounter.

Does your private health insurance cover having a baby anywhere? That's incredible to me. I've only ever been able to secure private health insurance for emergencies while traveling. I'd actually be interested to know where you were able to find such private insurance because it is something I'd like to have.

I see you are starting lean towards taking care of your AOS here and possibly forgoing the trip. I think that is the best decision you can make given your circumstances.

My plan was to stay as long as the immediate care and paperwork for my father requires (I am the only one in the family able to help with this due to my background). Thank you for your points, the deployment idea was just something his Sarg threw into our brainstorming as DCF is so much shorter than C1. Yes, for the birth we would have to present all those documents you mentioned but I don't even worry about crossing that bridge yet.

Yes, MOST insurances do not cover prenatal services (but would a preemie birth, at least the ones I was shopping around for) and birth but mine does as long as it has been active for a year (in other words, I can only "get pregnant" once I have had the insurance for a year). And yes, anywhere (though the premium to include the US was higher than other countries). What nationality are you?

Thank you and I agree - AOS seems the most sensible plan.

[saphina 7]

Wow what a long thread when the questions really have been answered already.

File for AOS, wait until it is through if you want to avoid the ban and dealing with waivers.

The comment by jabl2rom about "the racism is coming out, but not wonder considering where you're from"?!

Really?! That is so inappropriate I can't even.... Is wish someone from admin would delete that. If you need to go down to that level you should not be on here.

To the OP, I admire your persistence in answering everyone attacking you, I surely would have ignored a lot. I do think some are going overboard but you do have to understand that a lot of us can use ESTA but we did not misuse ESTA like you did. I know my spouse for a decade as well, have friends in many states, a college degree, job and apartment..... But I came to visit on ESTA like I am suppose to. Then I went back home and filed the right paperwork to come over and got married.

The reason a lot of people are attacking you is because we did use ESTA to come and visit or come and get married but go back home and file for K1 or CR1.

I'm not sure why you keep thinking people are saying your "illegal" action is to file months later, they are talking about misusing ESTA to get married and stay. Yes AOS is to adjust status, I did it that way too but I came into the US on a K1 like I'm suppose to.

I'm seriously not trying to attack. I'm sure you had your reasons for spontaneously getting married or not filing right away, all I am saying is that the fact is you misused ESTA. If this is the legal/right way or whatever you want to call it, everyone would do it and there would be no K1.

[Leo7777 243]

I'm not sure why you keep thinking people are saying your "illegal" action is to file months later, they are talking about misusing ESTA to get married and stay. Yes AOS is to adjust status, I did it that way too but I came into the US on a K1 like I'm suppose to.

I'm seriously not trying to attack. I'm sure you had your reasons for spontaneously getting married or not filing right away, all I am saying is that the fact is you misused ESTA. If this is the legal/right way or whatever you want to call it, everyone would do it and there would be no K1.

Blue Blood, your fellow countrywoman is telling it to you best.

And she does it very well.

Yes, you and I and all here can file AOS from Tourist, Work and Student Visa.

But that is little comfort to those who suffered much more being away from their loved one while going through the K-1 process.

So those of us who avoid this 'being away from their loved one during the AOS process' need to be quite humble and not argue back against those who followed the longer, more painful route.

Leo

[Blue_blood 10]

Wow what a long thread when the questions really have been answered already.

File for AOS, wait until it is through if you want to avoid the ban and dealing with waivers.

The comment by jabl2rom about "the racism is coming out, but not wonder considering where you're from"?!

Really?! That is so inappropriate I can't even.... Is wish someone from admin would delete that. If you need to go down to that level you should not be on here.

To the OP, I admire your persistence in answering everyone attacking you, I surely would have ignored a lot. I do think some are going overboard but you do have to understand that a lot of us can use ESTA but we did not misuse ESTA like you did. I know my spouse for a decade as well, have friends in many states, a college degree, job and apartment..... But I came to visit on ESTA like I am suppose to. Then I went back home and filed the right paperwork to come over and got married.

The reason a lot of people are attacking you is because we did use ESTA to come and visit or come and get married but go back home and file for K1 or CR1.

I'm not sure why you keep thinking people are saying your "illegal" action is to file months later, they are talking about misusing ESTA to get married and stay. Yes AOS is to adjust status, I did it that way too but I came into the US on a K1 like I'm suppose to.

I'm seriously not trying to attack. I'm sure you had your reasons for spontaneously getting married or not filing right away, all I am saying is that the fact is you misused ESTA. If this is the legal/right way or whatever you want to call it, everyone would do it and there would be no K1.

Thank you. I agree, my question has been answered and I am so grateful for the feedback and the forum giving me so much info in such a short time. I will try to be as helpful with my experience as I can. AOS is the safest best, possibly even the shortest. Thank you everyone!

I already commented to jabl2rom and I can safely say I usually don't encounter this in real life and it is surprising to say the least to read this on a forum for immigrants. I am glad someone else is shocked as it means that this is not what the majority of Americans think when they hear "German" (and I have a paternal Jewish grandma!).

Thank you for clarifying, I do assume however that most people mean my filing later. No one has explicitly stated that I came with the intent to marry (though lots of other motives have been thrown around). And I did not. I understand how it can be frustrating for someone to wait longer to be with their spouse but the law was open to all of us the same way. Return and wait, or stay and file for AOS.

[Boiler 43,430]

Sounds like you need to be with your Father, focus on that and let the pieces fall where they may.

[Ontarkie 13,915]

~~After removing pages of personal attacks and judgmental posts this thread will remain locked. As the OP has her answer this thread is not to be restarted.~~

Edited February 24, 2015 by Ontarkie