overstaing in US x Visa denial

[Aryadne e Kevin 0]

Hey Vjs,

I ´ve been in to the US over 7 times, and stayied in for different period of time, since I was engaged, and I wanted to experience a "wedding lifestyle" with my boyfriend (today he is my husband!!).

So, at january 2005, tired of flying back and forth to Brazil, a friend of mine, who is an attorney in US, suggested me to look for a Technical School, which was allowed to change visa status B2 (tourist) for M1 ( vocacional). Then, I could stay legally in US, studying different classes - which was my main concern at that time.

I did that, and I enrolled into this big and well known Technical Career Academy, whose the owners explained to me all of the process, CONFIRMED THEIR ELIGIBILITY TO PROCEED WITH THAT MATTER.. At that time, I was explainned that CHANGING VISA STATUS on -line in this case B2- M1, was a pretty commom PROCEDURE that, usually, takes 3 to 6 motnhs to get done, and many of their students were under that as well. They introduced to me 2 girls from Tokio who had done the same procuedrue and they were fine with the results not only about getting an extra education, but regarding the changing visa procedure too. So, after this, I did all of the bureacratic requirements, paied the fee (5,000) and joined the classes which took 6 months to end up. They also told me that I didn´t need to fly back to RJ while I was taking the classes because my process would be started at the CSV and automatically allowed me to overstay until receiving my M1.

What happened was, I finished the classes, got a diploma, but a M1 Visa wasn´t issued. So, they said that I should wait longer, but I told them that I had to fly to Brazil and only could be back 2 motnhs later, in october 2005.

So, I did that. My surprise was when I flew back to Ca, in october, as I had planned, I had my entrance denied under the alegation of overstaying in CA ilegally for 3 motnhs. That was so shocking to me as all of you can imagine how terrible is to be barred. The officers were very kind to me explanning that I had my B2 (10 years of validity) cancelled and I iwas being barred just because of "paper bureacracy" that I should resolve in my country.

So, I went back to RJ at the same night.... and after so many wonderings, planns... kevin and I decided to sue the school and get married in Brazil. It was in 2005, and we only got married in 2007, since we both got a nice jobs ... and other things happened. the lawsuit against this shcool took almost 3 years to be done and, even not going to trial, the school offered a settlement agreement where they admit their guilt and pay me a indemnity of U$ 30,000.

Today, I am in RJ for 3 years without trying to go back to US desperatley. I only applied for a spouse visa in April 2008, and now we are at the Packgae 3 stage.

So, my question is: even after I "won" the case against the school and so, I proved that it wasn´t my fault overstaing in the US, and also, having this 3 years back in my country, is anybody aware if I could have my petition denied by the embassy?

Why should I be prepared for ? Is there any recommendation? or a bad perspective of all ?

I really appreciate your reply!

regards

Aryadne

[Nita&Assaad 0]

I wish I could help you with and answer, I don't know. I do wish you luck with your Petition maybe you should Consulate a lawyer on this...

Good Luck

Nita

[canadian_wife 1,822]

What guilt did they admit? Failure to process your transfer? Do you have it in writing? Make sure you have the original documentation of your settlement and what they exactly admitted to. A stop by an immigration lawyer or the consulate might help too. Good luck

[YuAndDan 153]

Your post is a little rough on timeline. How long was your over stay? If less than a year, then the bar is only 3 years, of the overstay was longer than a year then you are facing a 10 year bar.

If there is still a bar in place then expect a waiver being requested by the consular officer.

Similar article: http://www.murthy.com/news/UDovrcan.html

[Aryadne e Kevin 0]

Hi, Guys

Thank you for the replies!

Well, I overstayied 3 months only. And I do have an attorney on my Visa procedure. However, my attorney never told me about any bar time.... I didn´t even know about this possibility. I never tried to be back for the last 3 years because I honestly didn´t feel like. But now, I am married, got done with my job and educational time, so it is time, and I am ready.

my question is if there is any chance if my petiotion could be denial... even with so many proofs for me.

Thank you all!

[YuAndDan 153]

Hi, Guys

Thank you for the replies!

Well, I overstayied 3 months only. And I do have an attorney on my Visa procedure. However, my attorney never told me about any bar time.... I didn´t even know about this possibility. I never tried to be back for the last 3 years because I honestly didn´t feel like. But now, I am married, got done with my job and educational time, so it is time, and I am ready.

my question is if there is any chance if my petiotion could be denial... even with so many proofs for me.

Thank you all!

You will be fine, Only periods of overstay longer than 6 months will have a bar to deal with.

[Aryadne e Kevin 0]

Yu and Dan, thank you so much for the article:

Acctually was exactly what happened to me.

[i]"A common example of this is a person with a 10-year tourist visa who is allowed by the INS at the Port of Entry (POE) to stay in the U.S. for 6 months. This six-month period is indicated on the I-94 card issued to the tourist at the POE. Suppose our traveler remains in the U.S. beyond the allowed six months and does not file an extension with the INS. Suppose also that the period of overstay is less than 180 days and that the person returns home without incident. (Periods of overstay in excess of 180 days give rise to even more significant problems that are not the subject of this article.) In such a situation, it is often assumed that one can continue to use the multiple-entry tourist visa until it expires. This is not the case. Under section 222(g) of the Immigration and Nationality Act, the visa of a person who overstays becomes void after the conclusion of the period of authorized stay indicated on the I-94. This cancellation occurs without the individual's knowledge. One cannot reenter the U.S. except with a new visa applied for at the consulate in the home country or if one qualifies for a visa exemption requirement to apply for the visa in another country based on "extraordinary circumstances."[/i]

God Luck to all of you!

[Garu 0]

You are fine. You have no problem.

In your case the overstay penalty doesn't apply because you did not overstay more than six months. With an overstay of less than six months all you lose is your 10 year B1 visa and have to apply again if you want to come as a tourist. The embassy might not give you another B1 just to set an example since they can claim you are more likely to be an intending immigrant and they don't have to justify their decision to anyone.

By getting married to a USC and applying for the 130 you are already intending to immigrate so the embassy no longer has to be concerned about the intending immigrant issue.

I think this is directly dealt with on question 30, section H of the DS-230 Application for Immigrant Visa and Alien Registration form.

The applicant is supposed to answer YES if any of these conditions which would exclude an individual for admission into the U.S. are met.

Section H reads: "An alien who was previously ordered removed within the last 5 years or ordered removed a second time wihtin the last 20 years; who was previously unlawfully present and ordered removed within the last 10 years or ordered removed a second time within the last 20 years; who was convicted of an aggravated felony and ordered removed; who was previously unlawfully present in the United States for more than 180 days but less than one year who volutarily departed within the last 3 years; or who was unlawfully present for more than one year or an aggregate of one year within the last 10 years".

Specifically, the section applicable to the overstay situation reads:

"who was previously unlawfully present in the United States for more than 180 days but less than one year who volutarily departed within the last 3 years; or who was unlawfully present for more than one year or an aggregate of one year within the last 10 years".

You can/should/must answer NO to that question because nothing applies to you. You were NOT unlawfully present in the U.S. for more than 180 days (you were unlawfully present for about 90 days). Since there is no time penalty for cases of less than six months, the question does not apply to you.

For those that overstayed between six months and a year then the verbiage "more than 180 days but less than one year who volutarily departed within the last 3 years" takes care of it. If they overstayed between six months and a year and have been out of the U.S. for more than three years then they can answer NO to the question; all is well. They paid the time penalty. In other words they did not depart "within 3 years"; they departed "over 3 years ago".

For those that overstayed more than a year then the section "or who was unlawfully present for more than one year or an aggregate of one year within the last 10 years" kicks in. So, unless they have been out of the U.S. for more than 10 years they would have to answer YES which would be a problem. There are waivers than can be requested as other people have mentioned but I have no idea how effective those are.

PLEASE DO POST YOUR RESULTS AFTER YOUR INTERVIEW so anyone in your situation can benefit from your experience.

Good luck.

[payxibka 10,045]

So, my question is: even after I "won" the case against the school and so, I proved that it wasn´t my fault overstaing in the US, and also, having this 3 years back in my country, is anybody aware if I could have my petition denied by the embassy?

The government does not care as to the reasons why you overstayed. The governement does not care whether you won a lawsuit and a school admitted wrongdoing. All this mitigating evidence means nothing.

All the government cares is 1) Was there a previous overstay and 2) For what length of time. Based on those facts and those facts alone will stipulate what if any "penalty" will occur. If you were subject to a 3 year or a 10 year ban, then time already spent will certainly play in the equation.

As others have said... it all may be moot because of the shortness of the actual overstay period...

Edited September 15, 2008 by fwaguy

[Aryadne e Kevin 0]

Gosh, your posts are making me feel so relief!

If there is anything I can say regarding my experience is THERE IS NOTHING THAT CAN JUSTIFY TO LOSE A 10 YEARS B1 VISA. So, more than ever we have to be carefull with the steps we do and make regarding our own documentation on this Visa process.

So, let´s be conscious about every single detail regarding the process and the next steps!

Thank you VJ´s!