How to determine overstay of previous visa

[pharmacist 0]

Hello< im new to this site, hope someone can help me. My husband was here on a k1 visa in march 2000. her got married in april 2000. he got divorced in april 2002(final divorce). he attended his first interview in dec 2000. never got a 2nd interview.

we got married in august 2003. we have a child sept 2004.

ALL THE MEANWHILE--

he applied for a i-751 got it in june 2002.

it was extended in june 2003 for 1 more year.

in 2004 and 2005, there is a stamp in his passport which says,i-551 processing. and in handwriting right above it, it says i-751 pending..VALID FOR WORK AND TRAVEL ABROAD FOR 1 YEAR.

HE MADE 2 INTERNATIONAL TRIPS, AND WAS INSPECTED BOTH TIMES UPON RETURN TO US.

he got his 2nd interview in november 2005. (almost 5 years later, granted he is divorced from 1st wife, and we;ve been married for 2.5 years)

THEY SAID HIS I-485 WAS DENIED IN SEPT 2002. REPEAT-- SEPT 2002. THE INTERVIEWING OFFICER GAVE HIM A COPY OF HIS "DENIAL" AT THE 2ND INTERVIEW--- 5 YEARS LATER AND SAID GO HOME AND GO FILE AN APPEAL....

AND THE MILLION DOLLARQUESTION IS>>>>> DID HE OVERSTAY ??????

HELEFT BACK TO INDIA THE DAY AFTER THE INTERVIEW COZ THEY CROSSED OUT HIS STAMPS... ALL 3 OF THEM....HE SAID HE HAS NO "STATUS" IN US.

NOW IVE APPLIED FOR A K3-- I-130- FILED 12/23, NOTE OF RECEIPT- 1/6

FILED I-129F-- 1/20 NOTE OF RECEIPT JAN 24.

MISSOURI SERVICE CENTER IS UP TO JAN 10 PROCESSING....

WHAT EXACTLY DO I NEED TO WRRY ABT??/

PLEASE HELP

[Boiler 45,522]

Sounds like he did not file for removal of conditions 90 days before his conditional GC was up.

Probably yes to anwer your question, you might want to prepare your waiver with this in mind.

[zyggy 9]

Sounds like he did not file for removal of conditions 90 days before his conditional GC was up.

Probably yes to anwer your question, you might want to prepare your waiver with this in mind.

You really should talk to an immigration attorney about this... Actually he should have talked to an immigration attorney the second that he was denied... but in this case, the damage may have already been done...

[pharmacist 0]

hey thanks for replying. he actually did talk to a laywer. he said to stay here and refile an i-485. but becoz in miami it takes 3 years for processing... he would not have any status...right? he was told to file an appeal by the immigration official at the interview.but they never sent any letter saying he was deported or that they started proceedings agianst him.... ive called th3 1-800 number many times, and they said that since he s gone back, i'd jsut be starting from scratch all over again. so i asked about the overstay-- they said as long as he has proof that he stayed here legally, that he is good to go.-- miami stamped an i-751 petitoin to remove condition 3 times in his passport (yearly)...... which also says 1-551 processing. but god knows who interprets what at the ins....

just incase, where would i look for waiver forms?

Sounds like he did not file for removal of conditions 90 days before his conditional GC was up.

Probably yes to anwer your question, you might want to prepare your waiver with this in mind.

You really should talk to an immigration attorney about this... Actually he should have talked to an immigration attorney the second that he was denied... but in this case, the damage may have already been done...

[john_and_marlene 162]

From the Adjudicator's Field Manual

Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment. If the C/S or E/S application is denied because it was untimely or frivolous, or because the alien engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, provided the alien was admitted until a specific date. If, however, the alien was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision.

It looks like he started accruing overstay time as of Sept 2002--the date of the decision.

[pharmacist 0]

hey john and marlene, thanks again for replying..

since he was denied in 2002, he was issued an i751 twice-- on "notice of action" papers....in june 2002, AND june 2003.

he never saw that denial letter till that interview in nov 2005. they know he never got it either becoz it was sent registered by them and no one signed for it( they gave us copies of all this)

moreover hes got those stamps in his passport------ in february 2004, and 2005 which state i-551 processing and i-751 pending. permission to work and travel abroad.

he went to india once by himself and once with us as a family (our son and me) and came back.. both times he was sent to a room where he waitid for 2 hours , after which they have a stamp inspected at miami "arc"

is it his fault if he overstayed?? when they clearly permitted it by a "notice of action" 2 times for 2 years in a row... and then the INS themselves stamped his passport ??

moreover-- we refinanced our house... he only had a stamp to prove his "legal" presence-- coz we did it thru a credit union.. they agreed he was living here legallu

they made him sign a patriot act to-- stating that they wont fund it if he was engaged in "bad activitities"...

i sent the ins a copy of all that stuff (as part of my cover letter to as to why he as a ss# and an alien reg # already)

im sure u can see how ive been royally screwed by bing separated from my husband.... just coz INS people are not paying attention....

is it really our fault that for a decision denied on 9/02, they issued that i751 on june 2002, and again in june 2003...........

so now what......

From the Adjudicator's Field Manual

Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment. If the C/S or E/S application is denied because it was untimely or frivolous, or because the alien engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, provided the alien was admitted until a specific date. If, however, the alien was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision.

It looks like he started accruing overstay time as of Sept 2002--the date of the decision.

[john_and_marlene 162]

so now what......

now find a good immigration attorney.

[babybunny 2]

yikes your husband would have to stay in the USA. if he exit it could trigger a 10 year ban. he cant leave at all - not even for an emergency. get that waiver clear and speak to an attorney.

Edited February 18, 2006 by shonjaved

[pharmacist 0]

hi shon javed, thanks for the reply

he left in november---

he didnt know if they are going to start deportation proceedings against him..

if he stayed, again he would be accruing unlawful presence, right? even if he refiled the i-485?

heres the thing.. they denied his i-485 in sept 2002.

he has an i-751 approved in JUNE 2002, JUNE 2003. on papers titled notice of action.

the stamp in his passport says: "i-551 processing(greencard) and 1-751 pending. permission to work and travel abroad. valid 1 year." hes got 3 of these stmps, last one issued on feb 9, 2005.

morever they gave him a 2nd interview....

for someone whose been denied an i-485, whats the point of giving them an interview, or stamps?

and SINCE the INS themselves gave the stamp, he really didnt over stay, did he?? i mean, they let him.. otherwise he would have left a LOOONG time ago, we would have never met.. and i wouldnt be writing allthis now... we got a little baby boy too....

yikes your husband would have to stay in the USA. if he exit it could trigger a 10 year ban. he cant leave at all - not even for an emergency. get that waiver clear and speak to an attorney.