Marriage didn't work. Overstay and re-entry questions.

[lavi5h 0]

Hello.

I have tried my best to find answers to the following questions, but with no luck, so if anybody can help me out I will be extremely grateful.

While filing for my AOS - I overstayed my regular tourist visa for approx. 4 months.

The reason being the time it took to gather all required documentation, both for my American spouse and me, have medical check etc. etc.

My lawyer told me this would not be a problem, because as soon as the forms were filed, this overstay would not matter anymore.

Unfortunately my marriage did not work out and we are currently separated, awaiting divorce (after 1.5 yrs of marriage). I have moved back to my native country and started life here again.

In my last talk with my lawyer, I was all the sudden informed that because the marriage did not work out, these 4 months would now come back to haunt me. Had I known this, I would never have stayed longer while getting the paperwork, but rather made multiple trips.

My two questions are the following:

1) Is my lawyer correct in regards to my overstay? I understood that from now on I will have to apply for a visa if I wanna visit the States and cannot return on the usual visa waiver. At the interview for a visa, will the agent show discression in regards to my situation? It's not like I overstayed to go skiing in Colorado or anything. I got instructions and followed them to best comply with the rules to get my AOS done properly.

2) I am planning on returning to the US in September, for 2 weeks, vacation purpose only and visit a friend.

Will the fact that I am currently separated and not fully divorced to a US citizen complicate my trip in any way?

Thanks a lot to anyone who can shed some light on this for me. A great situation turned muddy and now I am nervous about complications that might surface with a country I now love very much.

[lavi5h 0]

Couldn't find a way to edit my post so I'll add one additional piece of information here: We did get married before the overstay was a fact.

[gwenneh 7]

Did you receive your green card?

[lavi5h 0]

Thanks for answering

No I did not. Our interview was coming up, but since we knew we wouldn't work it out, we cancelled the interview, made a separation agreement and I left the country.

[gwenneh 7]

Since you got married on a tourist visa with intent to immigrate...yes, it is going to come back to haunt you. The overstay-no matter what the reason-will prevent you from using the VWP again, unfortunately. You may be barred from re-entering the US on a tourist visa at all, as what you attempted to to (adjust status from a tourist visa) is illegal.

The fact that you have left the country without a green card or advanced parole will mean that you cannot enter the US in September without a proper visa. You will also likely be denied a tourist visa given your illegal use of the VWP.

Sorry I don't have better news for you, but your lawyer is right. What you were trying to do was, in fact, illegal, and you are probably barred from re-entry to the US, although the only way to know that for sure is to apply for the tourist visa.

[lavi5h 0]

Hmmm. Does not sound very bright at all, but thanks for your reply.

Well, our marriage came very sudden. I did not intend to marry upon entering the US - I came to visit my girl for a longer period of time and as time passed it felt very right.

I thoroughly consulted with my lawyer before proceeding and he never indicated anything about that being unlawful.

At our final conversation, my lawyer mentioned having to apply for visa next time, but not that it would be impossible or result in a bar. And I actually did obtain an advance parole document.

[gwenneh 7]

Any overstay is illegal, per the letter of the law, no matter what the reason. As you never proved in an AOS interview that you didn't have immigrant intent when you entered the country-since you were adjusting from a tourist visa, that's where the burden of proof comes and falls squarely on you-all the USCIS will see is the overstay. Overstays during AOS are generally forgiven when lawful permanent resident status is granted in that the AOS is approved; without AOS, the overstay stands and since it was for a period of four months, you may be facing a ban. Four months is a significant amount. This is where the ban factors in, as overstays do result in bans.

Your lawyer is correct in that it was not illegal to come in, marry on the spur of the moment, and adjust, provided there was no prior intent. You gave up your chance to prove there was no prior intent by not adjusting status and attending the interview, and what I am giving you is the worst-case scenario with a ban. No matter what the case, you are no longer eligible for the VWP because of your overstay-that much is quite concrete-and you may or may not be eligible for a tourist visa. It depends on what you can and can't prove to the consular officer when you apply for a tourist visa, and whether or not that consular officer believes you. I do think your lawyer has a good grasp of what is going on in that he has thus far advised you correctly, so if I were you, I would retain him when applying for your future tourist visa!

Good luck!

[K3desparate 0]

Hmmm. Does not sound very bright at all, but thanks for your reply.

Well, our marriage came very sudden. I did not intend to marry upon entering the US - I came to visit my girl for a longer period of time and as time passed it felt very right.

I thoroughly consulted with my lawyer before proceeding and he never indicated anything about that being unlawful.

At our final conversation, my lawyer mentioned having to apply for visa next time, but not that it would be impossible or result in a bar. And I actually did obtain an advance parole document.

The best people to contact is the US consulate near you and try and explain your situation , yours is not unique at and i wont worry abt it.I was in the same situation with my wife but thankfully once i saw the signs i left the country.I spent all my time getting so worried about these issues assuming am permanently inadmissible to US until i wrote the US consulate.

Pls follow this advise and always bear in mind that the US immigration laws are sometimes vague and the lawyers themselves tends to struggle with the interpretation.

All you have done is abandoned the adjustment process, you therefore have no right to go to US with an intent to pursue it, if you and your wife decides to reconcile, then she has to so the whole application again.

Send a written letter to the immigration department having a jurisdiction in the area you lived and explain that you dont want to be a beneficiary of that said petition and demand you're sent a notice of action to that effect.Once there is no petition pending in your name, then it leaves you in my opinion to travel to US,if anything pops up just show that you got marriage in good faith, wanted to stay, applied for AOS and left when the marriage didnt work, just prove further on that your purpose of visit is purely recreational.

If you try i know you will be ok.Dont forget that if you had entered with an intent to marry then your case would have been different.Always proove you married in good faith, thats all you need.

Good Luck

[lavi5h 0]

K3Desperate, thanks!

Very good to hear some uplifting words and writing the consulate has been my intention since I came home. Of course it all remains to be seen, but it is so frustrating to sit here and have done everything out of nothing but good faith and follow rules to the best of my ability and then be hit with this issue all the sudden.

Before writing them I wanted to come here and get peoples opinion and I am thankful for pro's and con's so far, so please, anymore input is greatly appreciated!

[diadromous mermaid 36]

Overstays during AOS are generally forgiven when lawful permanent resident status is granted in that the AOS is approved; without AOS, the overstay stands and since it was for a period of four months, you may be facing a ban. Four months is a significant amount. This is where the ban factors in, as overstays do result in bans.

Using the word "ban" in your post suggests that the OP's overstay is a bar on future admissibility. In fact, overstays of less than 180 days do not trigger such a bar.

Your lawyer is correct in that it was not illegal to come in, marry on the spur of the moment, and adjust, provided there was no prior intent. You gave up your chance to prove there was no prior intent by not adjusting status and attending the interview, and what I am giving you is the worst-case scenario with a ban.

And abandoning the adjustment process *could* also demonstrate that there was no immigrant intent after the marriage began to fail.

No matter what the case, you are no longer eligible for the VWP because of your overstay-that much is quite concrete-and you may or may not be eligible for a tourist visa. It depends on what you can and can't prove to the consular officer when you apply for a tourist visa, and whether or not that consular officer believes you. I do think your lawyer has a good grasp of what is going on in that he has thus far advised you correctly, so if I were you, I would retain him when applying for your future tourist visa!

Good luck!

An overstay of even one day on VWP, that would be to stay in the USA for 91 days as opposed to the 90 days permitted on VWP, however, does mean that the OP would have to apply for a tourist visa to visit the US in the future.

[gwenneh 7]

I bow to the superior Mermaid's knowledge!

[Kez/JWolf 6]

as what you attempted to to (adjust status from a tourist visa) is illegal.

It is not illegal to adjust from a tourist visa or a VWP......

It is only illegal to enter with intent to remain on a tourist visa/vwp and as the OP said they had no intention of remaining when they entered...

Kezzie

[desert_fox 32]

An overstay of even one day on VWP, that would be to stay in the USA for 91 days as opposed to the 90 days permitted on VWP, however, does mean that the OP would have to apply for a tourist visa to visit the US in the future.

Any overstay on a VWP invalidates the use of the VWP for future travel. A B2 visa would be required, as Immigration would not let you re-enter on the VWP

[K3desparate 0]

K3Desperate, thanks!

Very good to hear some uplifting words and writing the consulate has been my intention since I came home. Of course it all remains to be seen, but it is so frustrating to sit here and have done everything out of nothing but good faith and follow rules to the best of my ability and then be hit with this issue all the sudden.

Before writing them I wanted to come here and get peoples opinion and I am thankful for pro's and con's so far, so please, anymore input is greatly appreciated!

Dont worry with time all will be clear as to why it happened this way who knows it may be a blessing in disquise, dont be hard on yourself,i know the feeling very well, the forums here deals with those 'lucky' onces but as in anything there has been various disasters and those in that disaster boat is unfortunaly alot.For the sake of this forum rules let me just limit my comments only on the immigration but so long us you left whiles the petition was pending you're ok, it even states that somewhere in the AOS form.If she had written to them the worse that could have happened was to be given a voluntary departure.

Don't let anyone scare you, you dont know how much i spent enquiring about this admissability issues.The only one who will know is the counsular officer.Write to them, depending on where you live, attach a self addressed envelope with a stamp.In few weeks time you will hear from them based on that your position will be clear .

K3Desperate, thanks!

Very good to hear some uplifting words and writing the consulate has been my intention since I came home. Of course it all remains to be seen, but it is so frustrating to sit here and have done everything out of nothing but good faith and follow rules to the best of my ability and then be hit with this issue all the sudden.

Before writing them I wanted to come here and get peoples opinion and I am thankful for pro's and con's so far, so please, anymore input is greatly appreciated!

Dont worry with time all will be clear as to why it happened this way who knows it may be a blessing in disquise, dont be hard on yourself,i know the feeling very well, the forums here deals with those 'lucky' onces but as in anything there has been various disasters and those in that disaster boat is unfortunaly alot.For the sake of this forum rules let me just limit my comments only on the immigration but so long us you left whiles the petition was pending you're ok, it even states that somewhere in the AOS form.If she had written to them the worse that could have happened was to be given a voluntary departure.

Don't let anyone scare you, you dont know how much i spent enquiring about this admissability issues.The only one who will know is the counsular officer.Write to them, depending on where you live, attach a self addressed envelope with a stamp.In few weeks time you will hear from them based on that your position will be clear .

If you obtained an advance parole then it seems like you're overreacting, go back with it.

[Yodrak 7]

Gwen,

The overstay may be a problem, but not for the reason you indicate.

Had the adjustment been completed the only overstay would have been a period between the date the alllowed stay ended (the date on the I-94) and the date that AOS was applied for (the I-485 Receipt Date). lavi5h was not on overstay while the I-485 was pending. However, once lavi5h pulled his I-485, whether explicitly by informing the USCIS or implicitly by leaving the USA, all the pending days become overstay days.

There has been nothing written to indicate that lavi5h entered on his tourist visa with an intent to immigrate - that is a figment of your imagination and in any case is a separate issue from the overstay.

Yodrak

Since you got married on a tourist visa with intent to immigrate...yes, it is going to come back to haunt you. The overstay-no matter what the reason-will prevent you from using the VWP again, unfortunately. You may be barred from re-entering the US on a tourist visa at all, as what you attempted to to (adjust status from a tourist visa) is illegal.

....

Sorry I don't have better news for you, but your lawyer is right. What you were trying to do was, in fact, illegal, and you are probably barred from re-entry to the US, although the only way to know that for sure is to apply for the tourist visa.

Edited June 21, 2006 by Yodrak