Overstayed, will he qualify?

[Don0 73]

Hi VJ community!

 

My friend has a girlfriend who is a US citizen, they've been together for some time. However, this friend overstayed for 2 years in the US, he is in his home country now. If his girlfriend petitions him for a fiance or maybe a spousal visa, will he be granted a visa? Would that be possible? 

 

Any input would help! Thank you!

[Crazy Cat 43,581]

If he overstayed for 2 years, he is banned from the US for 10 years from the day he left.  That would require a waiver to enter sooner.  It would be a lengthy process for them....but possible.

Edited April 28 by Crazy Cat

[Don0 73]

1 minute ago, Crazy Cat said:

If he overstayed for 2 years, he is banned from the US for 10 years from the day he left.  That would require a waiver.  It would be a lengthy process for them....but possible.

This is both for a fiance and spousal visa? Thank you for your response!

[Crazy Cat 43,581]

1 minute ago, Don0 said:

This is both for a fiance and spousal visa? Thank you for your response!

Yes.  But a finacee is not a qualifying relative for a hardship waiver.  

@Dashinka, isn't that correct?

Edited April 28 by Crazy Cat

[Don0 73]

26 minutes ago, Crazy Cat said:

Yes.  But a finacee is not a qualifying relative for a hardship waiver.  

@Dashinka, isn't that correct?

Thank you!

[S2N 106]

Chiming in to say this would be a case not to DIY it and to hire a qualified lawyer with experience in waivers.

[JeanneAdil 6,889]

you do not need a lawyer to apply as the following is the normal rule  for I 130 petition

 

https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers   

read about waivers

 

Typically, aliens cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.

[pushbrk 13,393]

46 minutes ago, JeanneAdil said:

you do not need a lawyer to apply as the following is the normal rule  for I 130 petition

 

https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers   

read about waivers

 

Typically, aliens cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.

That link is for those visa applicants (not petitioners) who are currently in the USA.  This potential visa applicant has already left the USA.  The waiver needed in this case, definitely shouts lawyer, not just any immigration lawyer but one who specializes in waivers of ineligibility.  Note also that any waiver based on hardship to the US Citizens needs to be about a lot more than the inconvenience of waiting out the ban.

[Boiler 46,884]

I am not sure it is not DIY, lots of people have done it themselves.

 

The fact you are asking suggests it is not DIY, needs a lot of research and focus.

 

K1 or CRI well IR1, I prefer IR1.

 

So marry, file the I 130, after 18 months or so goes to interview, has a 10 year ban, will be allowed to file a waiver, I 601, they seem to take about 2 years to process, not quick or cheap, if they need further help they should join.

[S2N 106]

10 hours ago, pushbrk said:

That link is for those visa applicants (not petitioners) who are currently in the USA.  This potential visa applicant has already left the USA.  The waiver needed in this case, definitely shouts lawyer, not just any immigration lawyer but one who specializes in waivers of ineligibility.  Note also that any waiver based on hardship to the US Citizens needs to be about a lot more than the inconvenience of waiting out the ban.

Distinctions like this are why lawyers are useful. Forms are easy to fill out; the U.S. government writes in plain English and if you take everything literally the mechanical process of doing it isn’t hard.
 

The trick is knowing which form to fill out when and what the burden of proof is as well as what the judgmental areas of the law that give discretion to officials are, and what is the most successful way to address those.

 

Technically DIY is possible for everything with the government. It doesn’t make it advisable in every case, though.

[Demise 1,408]

15 hours ago, Don0 said:

Hi VJ community!

 

My friend has a girlfriend who is a US citizen, they've been together for some time. However, this friend overstayed for 2 years in the US, he is in his home country now. If his girlfriend petitions him for a fiance or maybe a spousal visa, will he be granted a visa? Would that be possible? 

 

Any input would help! Thank you!

 

Overstayed what, that is the main question. Secondary question is overstayed when.

 

Ordinarily he will likely need an I-601 due to a 10 year ban for unlawful presence. It can be sought on either IR1 or K-1, the process basically looks the same as normal until the consular interview, where he'll have to go, get denied, then file I-601 with USCIS, then when I-601 is approved reschedule with the consulate, attend another interview and hopefully get the visa approved then. I wouldn't recommend trying to DIY a hardship waiver, tell your friend to get a lawyer, but ultimately, yeah it is possible.

 

Now there are some cases where it doesn't apply and that's in cases where either you are admitted with no concrete expiration date and there's two groups where that's the case:

1. Admitted for "duration of status", I-94 instead of having an expiration date it'll just say "D/S" (F, J, and M nonimmigrants)

2. Not issued an I-94 to begin with (Canadian tourists, possibly some others?)

 

Due to a quirk in the regulations the two groups above do not accrue unlawful presence until one of the following happens:

1. USCIS makes a formal finding that they're out of status, which only happens if they apply for something else and get denied.

2. IJ orders removal.

Then it starts to count from the following day. So in case like this someone can overstay an F-1 for years, never apply for anything with USCIS and never end up in removal proceedings, leave, and not get banned.

 

@Crazy Cat 

K-1s are eligible for the I-601.

[Crazy Cat 43,581]

1 hour ago, Demise said:

 

Overstayed what, that is the main question. Secondary question is overstayed when.

 

Ordinarily he will likely need an I-601 due to a 10 year ban for unlawful presence. It can be sought on either IR1 or K-1, the process basically looks the same as normal until the consular interview, where he'll have to go, get denied, then file I-601 with USCIS, then when I-601 is approved reschedule with the consulate, attend another interview and hopefully get the visa approved then. I wouldn't recommend trying to DIY a hardship waiver, tell your friend to get a lawyer, but ultimately, yeah it is possible.

 

Now there are some cases where it doesn't apply and that's in cases where either you are admitted with no concrete expiration date and there's two groups where that's the case:

1. Admitted for "duration of status", I-94 instead of having an expiration date it'll just say "D/S" (F, J, and M nonimmigrants)

2. Not issued an I-94 to begin with (Canadian tourists, possibly some others?)

 

Due to a quirk in the regulations the two groups above do not accrue unlawful presence until one of the following happens:

1. USCIS makes a formal finding that they're out of status, which only happens if they apply for something else and get denied.

2. IJ orders removal.

Then it starts to count from the following day. So in case like this someone can overstay an F-1 for years, never apply for anything with USCIS and never end up in removal proceedings, leave, and not get banned.

 

@Crazy Cat 

K-1s are eligible for the I-601.

Thanks.  I didn't remember seeing K-1 petitioner as a qualifying relative.  Nice to know.