F1 visa Overstay applying for IR-1 / CR-1 visa

[Trkmc85 14]

Hello there,

I am a US Citizen, my husband was a student in the US with an F1 visa, he overstayed his visa about 4 years and went back to his country willingly without any deportation process. We got married in his country and living together since last year. We are planning on applying for IR1/CR1 visa and move back to the US. My question is; will he be subject to 10 year ban due to his overstay even though his I-94 had D/S without a specific time on it?  We have been researching and seen many different scenarios from people that have been through exactly the same situations, some of them got their visa without a problem, but some others got denied due to overstay.  We would appreciate if you could enlighten us.

 

[milimelo 4,204]

Yes, he’ll have a 10 yr bar. 

[Trkmc85 14]

1 minute ago, milimelo said:

Yes, he’ll have a 10 yr bar. 

Thank you for the answer.  I don't understand.. How come some people with the same exact situation can get their visas without any problem?

[geowrian 22,335]

Depends on how much unlawful presence was accrued. As noted, D/S does not automatically start accruing unlawful presence when status is violated via termination of the SEVIS record. Normally it requires a formal finding that status was violated by an IO, IJ, or the BIA.

The current rules governing this are in this USCIS memo: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

 

There was a change to the rules in 2018 in which he may have been be impacted (https://www.uscis.gov/news/uscis-issues-revised-final-guidance-unlawful-presence-students-and-exchange-visitors), but this was halted via an injunction.

 

For consular processing specifically, here is the relevant FAM section: https://fam.state.gov/FAM/09FAM/09FAM030211.html

Quote

(2)  (U) For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue as of the date of the formal finding;

 

[Trkmc85 14]

1 minute ago, geowrian said:

Depends on how much unlawful presence was accrued. As noted, D/S does not automatically start accruing unlawful presence when status is violated via termination of the SEVIS record. Normally it requires a formal finding that status was violated by an IO, IJ, or the BIA.

The current rules governing this are in this USCIS memo: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

 

There was a change to the rules in 2018 in which he may have been be impacted (https://www.uscis.gov/news/uscis-issues-revised-final-guidance-unlawful-presence-students-and-exchange-visitors), but this was halted via an injunction.

 

For consular processing specifically, here is the relevant FAM section: https://fam.state.gov/FAM/09FAM/09FAM030211.html

 

Thank you  very much for valuable information. Since there is no way for us to find out if there was any formal finding,  I guess we will just go ahead and apply for the visa and wish for the best. Much appreciated. 

[arken 4,197]

And if it gets denied because of the unlawful presence, then you do have the waiver options.

[Trkmc85 14]

1 minute ago, arken said:

And if it gets denied because of the unlawful presence, then you do have the waiver options.

Thank you for the answer. We have researched about the extreme hardship waiver but it seems close to impossible. As far as I have read online, it takes years to even get an answer back. 😕 

[geowrian 22,335]

3 minutes ago, kmlcbi61 said:

Thank you for the answer. We have researched about the extreme hardship waiver but it seems close to impossible. As far as I have read online, it takes years to even get an answer back. 😕 

The average time for an I-601 is around a year or so, although I think this is closer to 6-9 months right now.

[SusieQQQ 11,584]

18 minutes ago, geowrian said:

Depends on how much unlawful presence was accrued. As noted, D/S does not automatically start accruing unlawful presence when status is violated via termination of the SEVIS record. Normally it requires a formal finding that status was violated by an IO, IJ, or the BIA.

The current rules governing this are in this USCIS memo: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

 

There was a change to the rules in 2018 in which he may have been be impacted (https://www.uscis.gov/news/uscis-issues-revised-final-guidance-unlawful-presence-students-and-exchange-visitors), but this was halted via an injunction.

 

For consular processing specifically, here is the relevant FAM section: https://fam.state.gov/FAM/09FAM/09FAM030211.html

 

This. The whole reason for the attempted change in rules was that there was hardly ever any sanction for overstaying on D/S. I’d be surprised if there is a ban here given he left of his own accord without apparently any immigration authorities’ involvement. As said though only one way to find out for sure. 

Edited June 1, 2020 by SusieQQQ

[geowrian 22,335]

1 minute ago, SusieQQQ said:

This. The whole reason for the attempted change in rules was that there was hardly every any sanction for overstaying on D/S. I’d be surprised if there is a ban here given he left of his own accord without apparently any immigration authorities’ involvement. As said though only one way to find out for sure. 

Agreed

[Trkmc85 14]

4 minutes ago, SusieQQQ said:

This. The whole reason for the attempted change in rules was that there was hardly every any sanction for overstaying on D/S. I’d be surprised if there is a ban here.  

Thank you very much.

[arken 4,197]

1 hour ago, kmlcbi61 said:

Thank you for the answer. We have researched about the extreme hardship waiver but it seems close to impossible. As far as I have read online, it takes years to even get an answer back. 😕 

I believe there are lots of successful cases in this forum on the waiver for immediate family member especially the spouse. You need to demonstrate how the relationship may suffer due to the long terms family separation and such. Hardship isn’t only financial.

[Ryan H 3,790]

Moved from Progress Reports to Process & Procedures.

[Pressna 0]

May I ask for an update on your case? Thanks.