Unlawful Presence

[Help786 0]

Hello,

If someone stays less than 180 days in USA without visa, do they still fall under 'unlawful presence' and do they still require approval from USCIS before issuance of visa?

Thanks.

[coraliesolms 47]

How did they get into the States without a visa? Ilegally?

[sachinky 464]

Depends on whether they had a lawful entry.

Or whether they were EWI.

[emt103c 10]

It doesn't even actually depend on legal entry/unlawful entry. They are not ineligible for an immigrant visa until they've been in the US for 180 days. . . .if the overstay is less than 180 days, no waiver is necessary, HOWEVER, they would no longer be eligible for VWP or non-visa entry. . .they would need a visa and it would be difficult to get unless they were immigrating.

[Bocajr27 3]

It doesn't even actually depend on legal entry/unlawful entry. They are not ineligible for an immigrant visa until they've been in the US for 180 days. . . .if the overstay is less than 180 days, no waiver is necessary, HOWEVER, they would no longer be eligible for VWP or non-visa entry. . .they would need a visa and it would be difficult to get unless they were immigrating.

This member is absolutely correct. The only thing to add is that if you were to get an immigrants visa (say your american spouce was claiming you), than you would need an approved I-212 "Permision to re-enter to the US after being deported" prior to being issued a visa. But do not get ahead of yourself and try to have this ready before the Consulate requests it.

Good Luck

[emt103c 10]

You would only need an I-212 if you were deported from the United States, you do not need it for an overstay of less than 180 days.

[Help786 0]

Thanks for reply.

Here is a better clearification. I am on immigrant visa, entered USA by EWI, stayed less than 180 days and departed on my own without been deported. Do I still need approval for visa or will they just issue it since it was less than 180 days. Also, the country I am in does not qualifiy for VWP. Thanks.

[emt103c 10]

For an immigrant visa, they should just issue it, (BTW: HTF did you EWI from India?) If it is a non-immigrant visa you have almost no chance at it being issued.

[Help786 0]

Its a long story. Anyways, if the stay is EWI for less than 180 days there should be no problem but what if the Embassy sents the file back to CIS office for approval of unlawful presence. Is this necessary or not? Thanks.

[emt103c 10]

Always consult an attorney, but if the overstay is less than 180 days, it should be approved without a waiver. . .they may be trying to find proof of exit/entry dates, etc . . .