Fiancee overstayed on B1 Visa and now has 5 year ban

[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.

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.

It was not a valid business visit. She was working in the U.S. as her place of employment. It is far outside the bounds of a business visit based on the rules for B1. I does not qualify as a business visit.

Edited July 13, 2009 by john_and_marlene

[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.

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.

Let me be clear, we do intend to marry, but that was not the reason for her going to Japan or returning to the US. We had talked about it previously and looked at rings in Japan, but our timeline was not for marriage the next day, it was later. She worked in Japan, came to the US to work on their accounting project between US and Japanese offices, left because they told her she needed to, and came back to continue her work. Our meeting and talk of marriage was not a reason for her ever coming here. If she had not met me, her travels to and from the US would have been the same.

She brought up me in the immigration interview because she thought that would help. Obviously, it made everything worse.

[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.

It was not a valid business visit. She was working in the U.S. as her place of employment. It is far outside the bounds of a business visit based on the rules for B1. I does not qualify as a business visit.

As long as she maintained her foreign residence, and did not receive pay from a US based company, then she qualifies as a business visitor. From the OP's description, it sounds like she remained an employee of the Japanese office the entire time. Business visitors are allowed to work in the US - they just aren't allowed to be paid by a US based company. Otherwise, foreigners wouldn't be allowed to come here for conventions or business meetings.

[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.

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.

It was not a valid business visit. She was working in the U.S. as her place of employment. It is far outside the bounds of a business visit based on the rules for B1. I does not qualify as a business visit.

As long as she maintained her foreign residence, and did not receive pay from a US based company, then she qualifies as a business visitor. From the OP's description, it sounds like she remained an employee of the Japanese office the entire time. Business visitors are allowed to work in the US - they just aren't allowed to be paid by a US based company. Otherwise, foreigners wouldn't be allowed to come here for conventions or business meetings.

There is a huge difference between coming for a convention or a business meeting and working at a job located within the U.S. for a year. Short business visits are exactly the purpose of the B1 ... but working at the same job within the U.S. for a year is not, regardless of who owns the business.

[netsatwork 0]

Yes, she was paid by the Japanese company and was their employee, not the US.

[netsatwork 0]

You guys are jumping all over the B1 visa thing, but what about this? I don't know all the details of her visa. I did not have anything to do with it. She was there because she was trained in English and their other job tasks. No one else in the company had these skills. This definition seems applicable:

The B1 in lieu of an H1B

In certain, limited circumstances the US Consulate may issue an employment-authorized B1 visa where the work to be undertaken would usually require an H1B visa. This provision is particularly applicable to situations where you may need a non-US company to send a member of staff to the US for a limited period in order to undertake specific projects for you, or where you wish to bring in an employee of an overseas subsidiary, affiliate or parent for a limited period. The requirements for acquiring a B1 in lieu of H1B are:-

•The work to be undertaken in the US must be H1B level – i.e. the worker must be engaged in a 'speciality occupation';

•The worker must permanently employed (i.e. not a contractor) and paid by the employer outside the US;

•The worker may receive no compensation other than expenses from a US source;

•The worker must have a degree relevant to the services to be provided– there is no provision for work experience to be considered equivalent to adegree, as there is under the H1B.

The B1 in lieu of H-1 visa generally takes 1 to 2 weeks to obtain, and considerably more supporting documentation is required than for a normal B1 visa. Periods of admission and extension are the same as for the standard B1 visa (i.e. generally 6 months).

If the necessary conditions are satisfied then the applicant can apply for a visa. If you would like to find out if you qualify, you may fill out our US visa assessment form.

It should be noted that in rare circumstances, holders of this visa encounters problems when trying to enter the US.

This is because while it is issued by a US Consulate or Embassy, it has not been formally recognized by US Citizenship and Immigration Services (USCIS). For more information, please contact a member of our staff.

Edited July 13, 2009 by netsatwork

[canadian_wife 1,822]

netsatwork - Your fiance was given a B1 visa for 3 months and was able to 'work' for her Japanese employer for 3 months. She stayed 3 months beyond her authorized stay, thus violating the terms of her visa. And based on what you cited, your fiance must have been granted the B-1 by a POE knowing that she was going to work for a Japanese company in the US. Was this the case or did she simply enter as a tourist then work on top of that? On top of that, she said that she was going to get married to you - thus also violating the terms of her tourist visa.

You say her intention was only to work and not marry you, but she said, when in detention, that her intention was to marry you. Regardless of why she said it, she lied (if her true intention was to work that is).

Regardless, you have found yourself in a situation with a fiance that has a 5 year ban. Your options include filing a K-1 visa now and going through the I-601 process to lift the ban. Or you can wait for her company to find something out - which will likely be that they do not have the power to get the 5 year ban lifted.

Good luck.

Edited July 13, 2009 by canadian_wife

[netsatwork 0]

netsatwork - Your fiance was given a B1 visa for 3 months and was able to 'work' for her Japanese employer for 3 months. She stayed 3 months beyond her authorized stay, thus violating the terms of her visa. And based on what you cited, your fiance must have been granted the B-1 by a POE knowing that she was going to work for a Japanese company in the US. Was this the case or did she simply enter as a tourist then work on top of that? On top of that, she said that she was going to get married to you - thus also violating the terms of her tourist visa.

You say her intention was only to work and not marry you, but she said, when in detention, that her intention was to marry you. Regardless of why she said it, she lied (if her true intention was to work that is).

Regardless, you have found yourself in a situation with a fiance that has a 5 year ban. Your options include filing a K-1 visa now and going through the I-601 process to lift the ban. Or you can wait for her company to find something out - which will likely be that they do not have the power to get the 5 year ban lifted.

Good luck.

Fine. I do not expect you guys to cry for me, but I have to wonder if the hardship of dealing with Immigrations for a while has hardened you guys. She did not come here to commit fraudulent employment. Her company hired her in Japan, asked her to work here, and she did it. My company has an office in Thailand. If they needed me there for an extended period, I'd do the same thing. She specifically said in questioning (I have the transcripts) that her intention in coming to the US was to work for her sister company. The fact that we fell in love and talked of marriage was simply something that happened. Is she not allowed to fall in love on a B1 visa?

Thanks for the facts and opinions on the immigration issues, I appreciate it. I'm just kind of surprised that people who have been through a lot of the same heartache are kind of heartless when giving me advice. I think homeland security lacks enough compassion for all of us, so we should at least try to support each other on these forums. Right or wrong, the intent was not for marriage. Honestly, even if someone does come here intending to marry, people need to step back and realize that we are all part of a global community and we aren't here on the planet for all that long. These laws saying we can only EASILY associate with those born in the same country as us are really causing unnecessary pain to some and are counterproductive for a harmonious global society. That's my take on it, feel free to bash me.

Edited July 13, 2009 by netsatwork

[canadian_wife 1,822]

netsawork I am trying to help you.

Bashing me isn't going to get you anywhere. The sooner you stop blaming immigration, her employer, us for the pitfalls of your future marriage, the better off you will be.

[scandal 951]

Thanks for the facts and opinions on the immigration issues, I appreciate it. I'm just kind of surprised that people who have been through a lot of the same heartache are kind of heartless when giving me advice. I think homeland security lacks enough compassion for all of us, so we should at least try to support each other on these forums. Right or wrong, the intent was not for marriage. Honestly, even if someone does come here intending to marry, people need to step back and realize that we are all part of a global community and we aren't here on the planet for all that long. These laws saying we can only EASILY associate with those born in the same country as us are really causing unnecessary pain to some and are counterproductive for a harmonious global society. That's my take on it, feel free to bash me.

I sympathize with your plight. Based on what you've told us, you are either facing a very long (multi year) separation from your fiancee, or moving to Japan to be with her, or a third country.

She bears considerable responsibility for her plight, particularly in regards to the overstay. It's her responsibility - not her company's, not a lawyer's,and certainly not USCIS - to know the terms and conditions and timeframes of her visa status in the US. Just as she is responsible for having a valid unexpired passport, her entry stamp and I-94 have an expiration date that she should have been aware of.

Having said that, I do sympathize with the bind you've gotten into by her declaration of your intent to marry. There's nothing wrong with you and she falling in love, nor in making plans to marry. There's no fraud in that. Further, there's no fraud even in making marriage plans in the US as long as it is clear that you are not intending to adjust status based on that marriage. If you had wanted to marry and have her return to Japan while pursuing a CR-1 visa, no fraud has been committed. The problem is that the burden of proof is on you and your fiancee. The CBP default assumption when told that a foreigner is entering the US to marry an American is a presumption of intent to adjust status and immigrate. The law is quirky and catches many unsuspecting people off guard. However ignorance of the law is not a defense.

I think you need expert legal assistance here. Maybe there is a way to get a waiver and find some leniency for your circumstances.

Good luck.

[netsatwork 0]

netsawork I am trying to help you.

Bashing me isn't going to get you anywhere. The sooner you stop blaming immigration, her employer, us for the pitfalls of your future marriage, the better off you will be.

I apologize if you think I am bashing you. There can be blame put on her employer. You don't know all the details of the situation, so it is hard for you to make that determination. Immigration is just doing their job. Whether their rules are completely fair is surely open for debate. I have never suggested that I blame this forum for any of my problems.

I am trying to face reality, but there is also a lot of sadness and confusion that goes with the beginning of this process. I am just asking for details and facts rather than comments like "Regardless of why she said it, she lied..."

I hope you can understand where I am coming from.

[netsatwork 0]

Thanks for the facts and opinions on the immigration issues, I appreciate it. I'm just kind of surprised that people who have been through a lot of the same heartache are kind of heartless when giving me advice. I think homeland security lacks enough compassion for all of us, so we should at least try to support each other on these forums. Right or wrong, the intent was not for marriage. Honestly, even if someone does come here intending to marry, people need to step back and realize that we are all part of a global community and we aren't here on the planet for all that long. These laws saying we can only EASILY associate with those born in the same country as us are really causing unnecessary pain to some and are counterproductive for a harmonious global society. That's my take on it, feel free to bash me.

I sympathize with your plight. Based on what you've told us, you are either facing a very long (multi year) separation from your fiancee, or moving to Japan to be with her, or a third country.

She bears considerable responsibility for her plight, particularly in regards to the overstay. It's her responsibility - not her company's, not a lawyer's,and certainly not USCIS - to know the terms and conditions and timeframes of her visa status in the US. Just as she is responsible for having a valid unexpired passport, her entry stamp and I-94 have an expiration date that she should have been aware of.

Having said that, I do sympathize with the bind you've gotten into by her declaration of your intent to marry. There's nothing wrong with you and she falling in love, nor in making plans to marry. There's no fraud in that. Further, there's no fraud even in making marriage plans in the US as long as it is clear that you are not intending to adjust status based on that marriage. If you had wanted to marry and have her return to Japan while pursuing a CR-1 visa, no fraud has been committed. The problem is that the burden of proof is on you and your fiancee. The CBP default assumption when told that a foreigner is entering the US to marry an American is a presumption of intent to adjust status and immigrate. The law is quirky and catches many unsuspecting people off guard. However ignorance of the law is not a defense.

I think you need expert legal assistance here. Maybe there is a way to get a waiver and find some leniency for your circumstances.

Good luck.

Thank you. I know there is responsibility that she needs to take which is inherent to getting a visa. There are many situations that occurred within her company which I don't need to go into on this forum that make the whole thing particularly frustrating and the situation more heartbreaking. My life, the life of my son, and her life are going to be dramatically changed and the company really should recognize some responsibility for it. I feel from my reading today, that because of the way immigration laws are, they will largely just walk away from this problem and leave us to bear the consequences. It makes me angry and sad.

Thank you for your help.

[Chica Yeyé 41]

One thing is for us to understand where you're coming from; and another thing would be to tell you what you want to hear. That does not help you at all. In immigration cases, lying is a no-no. End of story. You lie, you get caught, you get kicked out. Indeed, you should retain the services of an experienced family immigration attorney. And yes, you would be better off stopping the blame game.

[Krikit 1,164]

I am sorry to hear of your plight, netsatwork. Here are a couple of links for you. The first is a small blurb on visa fraud and some other handy information. The second is a link to the member KitKat1. She is very knowledgeable on waivers and has a number of links listed in her signature. Alternatively, you can do a search on her posts. Best of luck to you.

Visa Fraud

VJ Member KitKat1

[Andy Chai 0]

"You were engaged to a USC and were planning to get married tomorrow no files or petitions were found on your behalf." That's the problem.

I had very similar situation that the POE officer alleged my girl friend had intention to stay in US and got 5 years ban. She never entered US before. I think you need to file K1 and after interview with embassy, they'll tell her to file I-601. It's going to be a long process. Good luck!