Fiancee overstayed on B1 Visa and now has 5 year ban

[netsatwork 0]

I am not really sure where to post this, but since we are looking for a waiver on a 5 year ban, I guess I'll start here. Here's the story:

I met my fiancee about 4 months ago in Louisville, KY through a mutual friend. She was working in the US through her Japanese headquarters and came on a 1 year B1 visa. According to the visa, she had to go back to Japan before 6 months in the US and stay for a few days, then she could return. Her employer said they would take care of everything and tell her when she needed to leave, etc. We fell in love and spent every day together, then her company told her she needed to return to Japan on 6/26 for 10 days and then come back. We decided I would go with her so I could meet her family. I left Japan July 4th, she came back July 6th and was stopped in Dallas. She spent a day in a holding cell and the night in the Dallas jail because she learned that her visa has expired on 4/22 instead of 7/22 like she had thought. Her company had copied her passport and everything, but never noticed the I-94 showing it expired on 4/22.

First mistake was her company bought her initial plane ticket for arrival in US on 1/22 and departure on 4/22, thus immigration assumed she only needed 3 months here. Second mistake was them not noticing the I-94. The last mistake was that when she got to the US and was in Dallas, she told them about me and out plans to marry, hoping to help the situation. Apparently it made it worse. The company's lawyer tells me she then could not be admitted because she had intent to remain permanantly on a B1 visa. Her true intent was to work, but we had also hoped to get married.

Now she is back in Japan with a 5 year ban and we are waiting to see if the company is going to help us get this worked out. We haven't really heard any news yet. The case is at the US Consulate and we don't want it to sit too long. I wanted to get some feedback on what people thought about getting a waiver on the 5 year ban and the possibility of another visitor/B1 visa for her.

A side-note and back-history, she was denied an initial request for a 5 year B1 last year when she first applied because she was unclear about stressing that her employer is her Japanese company (which it is) and they thought she was going to be an employee in the US. The lawyer was able to apply pressure and get it to a 1 year visa approval. Just wanted everyone to consider that too. She has only a 2 year degree, so I believe she cannot apply for a full, sponser work visa.

Any info will be greatly appreciated. We are considering a K1 visa, but the wait is about a year according to the lawyer and there is still the 5 year ban to contend with. Thank you.

[Minya's wife 25]

She has a 5 year ban, no way around it. Blaming the company for overlooking the expiration of the I-94 is not going to get her far in trying to overcome the ban. It is ultimately the responsibility of the visa holder to know when his/her i-94 expires and leave before they overstay and/or incur a ban on re-entering.

If available, a waiver will be needed regardless of the type of visa she applies for. I would think they would be more apt to approve a waiver of the ban for a K-1 visa, then for another tourist visa...which is the type of visa she overstayed to get her in this mess.

[canadian_wife 1,822]

I doubt she'll be getting a tourist visa any time soon, regardless of her intentions in the US - she will marry you and adjust status, like she said she she was detained in Dallas.

Have you filed any immigrant visa yet? You say the case is that the US consulate, what does that mean? What case? Also if I am reading right, she only overstayed 3 months, any overstay under 180 days does not incur a ban. How do you know she received a 5 year ban and what was it issued for?

Edited July 13, 2009 by canadian_wife

[netsatwork 0]

I doubt she'll be getting a tourist visa any time soon, regardless of her intentions in the US - she will marry you and adjust status, like she said she she was detained in Dallas.

Have you filed any immigrant visa yet? You say the case is that the US consulate, what does that mean? What case?

I was just told the 'case' was in Japan now and ready to be reviewed. I don't know what exactly that means. I applied for nothing yet. We are waiting to hear what the company and their lawyers can do before we do anything. They already told me that if I have to go the K1 or marriage route then they won't pay for it.

Edited July 13, 2009 by netsatwork

[netsatwork 0]

I doubt she'll be getting a tourist visa any time soon, regardless of her intentions in the US - she will marry you and adjust status, like she said she she was detained in Dallas.

Have you filed any immigrant visa yet? You say the case is that the US consulate, what does that mean? What case? Also if I am reading right, she only overstayed 3 months, any overstay under 180 days does not incur a ban. How do you know she received a 5 year ban and what was it issued for?

The page from Immigration says: You have been found to be inadmissible to the US under the provisions of section 212(a) Immigration and Nationality Act or deportable under section 237. Then the section with 5 year ban is checked.

Determination of Inadmissibility says that:

1) you are an immigrant not in possession of a valid unexpired immigrant visa, etc. You entered on 1/23/2009 with a vistor for business and were admitted until 4/22/2009. you did not depart until 6/26/2009 resulting in 65 day overstay. You did not file for extension. You were engaged to a USC and were planning to get married tomorrow no files or petitions were found on your behalf.

Where can I find that anything less than a 180 day overstay will not result in a ban? We really only used marriage as an excuse because she didn't know what to do and was desperate. I hope a lawyer can make that clear. Her true intent was coming back for work. It always has been.

Any info on this 180 day rule would be appreciate. Thank you.

[canadian_wife 1,822]

If you file for a K-1 visa you can file now, and not wait to hear back from the company or the lawyers. You will be denied at the interview and you will file the I-601 and you must prove in the packet that you cannot move to Japan and you will incur extreme hardship if your fiance does not return to the United States.

You have an uphill battle, good luck. Check out immigrate2us.net, they have much more experience with waivers than this site.

[john_and_marlene 162]

The first mistake was using the B1 for gainful employment. Using a B1 to work as an employee in the U.S. is visa fraud. The B1 is intended for short business related visits, but not for employment within the U.S. The company is avoiding using a proper employment visa at her peril.

[john_and_marlene 162]

It appears to me that the ban is related to the misuse of the B1 and working without proper authorization and not to an overstay.

5 year bans are for unauthorized employment.

Overstay bans are 3 and 10 years depending on the length of overstay.

[Chica Yeyé 41]

Exactly what I was thinking. The ban seems to be more for visa fraud (using B1 to work) than overstay. Bad all around.

[DanielParul 50]

Exactly what I was thinking. The ban seems to be more for visa fraud (using B1 to work) than overstay. Bad all around.

Yes. Probably worse for visa fraud!

[Chica Yeyé 41]

Exactly what I was thinking. The ban seems to be more for visa fraud (using B1 to work) than overstay. Bad all around.

Yes. Probably worse for visa fraud!

I would think so.

[brykit 0]

Did her passport get stamped with any codes?

[Minya's wife 25]

I doubt she'll be getting a tourist visa any time soon, regardless of her intentions in the US - she will marry you and adjust status, like she said she she was detained in Dallas.

Have you filed any immigrant visa yet? You say the case is that the US consulate, what does that mean? What case? Also if I am reading right, she only overstayed 3 months, any overstay under 180 days does not incur a ban. How do you know she received a 5 year ban and what was it issued for?

The page from Immigration says: You have been found to be inadmissible to the US under the provisions of section 212(a) Immigration and Nationality Act or deportable under section 237. Then the section with 5 year ban is checked.

Determination of Inadmissibility says that:

1) you are an immigrant not in possession of a valid unexpired immigrant visa, etc. You entered on 1/23/2009 with a vistor for business and were admitted until 4/22/2009. you did not depart until 6/26/2009 resulting in 65 day overstay. You did not file for extension. You were engaged to a USC and were planning to get married tomorrow no files or petitions were found on your behalf.

Where can I find that anything less than a 180 day overstay will not result in a ban? We really only used marriage as an excuse because she didn't know what to do and was desperate. I hope a lawyer can make that clear. Her true intent was coming back for work. It always has been.

Any info on this 180 day rule would be appreciate. Thank you.

Misrepresentation of any kind is a big no-no during the visa and/or immigration process. It can incur a lifetime ban and/or result in deportation. US immigration does not care that someone is "desperate" or "does not know the rules/regulations"....if you lie and they catch you, the consequences are often very harsh.

[JimVaPhuong 4,863]

It appears to me that the ban is related to the misuse of the B1 and working without proper authorization and not to an overstay.

5 year bans are for unauthorized employment.

Overstay bans are 3 and 10 years depending on the length of overstay.

It doesn't look that way on the denial letter. He said she was working for her Japanese employer, at their office in the US. She wasn't working for an American company. She had the same job before, during, and after her visit to the US. That would qualify as a business visit.

The denial letter makes it sound like she's accused of trying to use the B-1 to enter, get married, and adjust status. They specifically mentioned her intention to marry. I think the 5 year ban is for trying to enter under false pretenses. I don't think it has anything to do with the overstay.

[Chica Yeyé 41]

I doubt she'll be getting a tourist visa any time soon, regardless of her intentions in the US - she will marry you and adjust status, like she said she she was detained in Dallas.

Have you filed any immigrant visa yet? You say the case is that the US consulate, what does that mean? What case? Also if I am reading right, she only overstayed 3 months, any overstay under 180 days does not incur a ban. How do you know she received a 5 year ban and what was it issued for?

The page from Immigration says: You have been found to be inadmissible to the US under the provisions of section 212(a) Immigration and Nationality Act or deportable under section 237. Then the section with 5 year ban is checked.

Determination of Inadmissibility says that:

1) you are an immigrant not in possession of a valid unexpired immigrant visa, etc. You entered on 1/23/2009 with a vistor for business and were admitted until 4/22/2009. you did not depart until 6/26/2009 resulting in 65 day overstay. You did not file for extension. You were engaged to a USC and were planning to get married tomorrow no files or petitions were found on your behalf.

Where can I find that anything less than a 180 day overstay will not result in a ban? We really only used marriage as an excuse because she didn't know what to do and was desperate. I hope a lawyer can make that clear. Her true intent was coming back for work. It always has been.

Any info on this 180 day rule would be appreciate. Thank you.

Misrepresentation of any kind is a big no-no during the visa and/or immigration process. It can incur a lifetime ban and/or result in deportation. US immigration does not care that someone is "desperate" or "does not know the rules/regulations"....if you lie and they catch you, the consequences are often very harsh.

WOW. How did I miss that? No wonder she was banned. My sympathy just flew out the window. Visa fraud is disgusting. Reported.