Need help answering 3 year bar for overstay.

[nils1123 0]

My girlfriend and I got engaged last week and was going to start the K1 Fiance Visa proscess however..I will try to give all information I have. She was in U.S. on J1 visa in May 2008 (she is from Russia) to work and her visa expired in September 08. She filed for extension or change of status and it was not granted. So she got a court letter in late December 08 stating that between September and December stating because she filed for extension of her visa on time that her stay between September 08 and December 08 she was legal but she had to depart within 30 days....well she did not have money for ticket so she stayed and ended up going to removal court in September 09..The judge granted her preconclusion voluntary departure. So she left September 09...She says the judge and lawyer at the time said that she is not barred from U.S.A, but people I have spoken with and most information on internet says that she is barred for 3 years...Can anyone answer this for me IS SHE BARRED? and if she is what options do we have to get her here....Is it best to file for fiance visa anyways and file a waiver? or should we just wait the 2 years left on the bar? What would be the quickest in the minds of people on this site??HELP HELP... and if you cant answer question do you know someone who can answer this?? it seems some lawyers I talk to do not know the first thing about overstays and bars...!!!

[Used to be broken 147]

My girlfriend and I got engaged last week and was going to start the K1 Fiance Visa proscess however..I will try to give all information I have. She was in U.S. on J1 visa in May 2008 (she is from Russia) to work and her visa expired in September 08. She filed for extension or change of status and it was not granted. So she got a court letter in late December 08 stating that between September and December stating because she filed for extension of her visa on time that her stay between September 08 and December 08 she was legal but she had to depart within 30 days....well she did not have money for ticket so she stayed and ended up going to removal court in September 09..The judge granted her preconclusion voluntary departure. So she left September 09...She says the judge and lawyer at the time said that she is not barred from U.S.A, but people I have spoken with and most information on internet says that she is barred for 3 years...Can anyone answer this for me IS SHE BARRED? and if she is what options do we have to get her here....Is it best to file for fiance visa anyways and file a waiver? or should we just wait the 2 years left on the bar? What would be the quickest in the minds of people on this site??HELP HELP... and if you cant answer question do you know someone who can answer this?? it seems some lawyers I talk to do not know the first thing about overstays and bars...!!!

UNLAWFUL PRESENCE FOR PURPOSES OF 3- AND 10-YEAR BARS TOLLED FOR ENTIRE TIME NONIMMIGRANTS’ APPLICATIONS FOR CHANGE OF STATUS OR EXTENSION OF STAY ARE PENDING

Immigrants’ Rights Update, Vol. 14, No. 2, April 11, 2000

The Immigration and Naturalization Service has issued guidance stating that the agency now considers unlawful presence "tolled" for the entire time that nonimmigrants’ applications for extensions of stay or change of status are pending. Previously, under the three- and ten-year bars to admission that apply to noncitizens who have been "unlawfully present" in the United States—bars that were enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)—the INS had tolled the calculation for only up to 120 days. The new guidance, issued by Executive Associate Commissioner Michael A. Pearson, acknowledges that INS processing of applications for extension of stay or change of status often takes longer than the four months provided for in the IIRIRA.

Under section 212(a)(9)(B) of the Immigration and Nationality Act, noncitizens who were unlawfully present in the U.S. for more than 180 days, who departed the U.S. before any removal proceedings were commenced against them, and who then seek admission to the U.S. are inadmissible for a period of three years. Noncitizens who were unlawfully present in the U.S. for one year or more who leave the country and then seek admission to the U.S. are inadmissible for a ten-year period.

The statute provides that the following periods of time do not count towards the accrual of unlawful presence: periods during which a noncitizen is under 18 years of age, or has a pending bona fide asylum application (provided the individual has not engaged in unauthorized employment), or has Family Unity status, or is in violation of the terms of a nonimmigrant visa because of abuse by a U.S. citizen or lawful permanent resident spouse or parent. The INS considers as lawfully present individuals who file applications with the INS for adjustment of status to lawful permanent residence, as long as that application is pending.

In addition, the statute provides that noncitizens lawfully admitted or paroled into the U.S. and who, before the expiration of their lawful status, file a nonfrivolous application for extension of stay or change of status (to change to a different nonimmigrant status) will not be considered unlawfully present during the time the application is pending, for up to 120 days. (Such consideration, however, will be extended to them only if they do not engage in unauthorized employment.) The INS memo notes that the 120-day limit was based on Congress’s expectation that the agency would adjudicate such applications within that time period. According to the memo, because of backlogs "which in some cases tend beyond six months," noncitizens with pending applications for extension of stay or change of status may become subject to the three-year bar, or even the ten-year bar, if the tolling of the period of unlawful presence is limited to 120 days. In order to account for such delays, the INS made this change in policy.

The memo notes that the tolling of unlawful presence beyond 120 days applies only to nonimmigrants who were admitted for a time period set to end on a specific date. By contrast, nonimmigrants who are admitted for the duration of their stay, such as F-1 students, cannot begin to accrue unlawful presence until the INS or an immigration judge finds that they violated their status.

INS Memorandum HQADN 70/21.1.24-P (Mar. 3, 2000).

********ALSO MIGHT HAVE SOME ISSUES WITH HER J1 Status*****************************************

The Two-Year Home Country Residence Requirement

The J-1 Exchange Visitor program is administered by the United States Department of State. Exchange Visitors (including students and scholars) are, under certain circumstances, subject to the "two-year home country residence requirement" which obligates some J-1 visa holders to return to their country of nationality or permanent residence for an aggregate of at least two years upon completion of their program.

.

The two-year home country residence requirement prevents an Exchange Visitor who is subject to the requirement from changing visa status to H temporary worker or trainee, L intra-company transferee, or permanent resident of the U.S.. The individual would not be permitted to change these categories at a U.S. Consulate outside the US until the requirement was satisfied or waived. The requirement also prevents the Exchange Visitor from changing status within the U.S. to any other nonimmigrant category, although it is possible to leave the U.S. and re-enter in a visa category other than H, L or permanent resident without first satisfying the two year requirement. Once the requirement has been fulfilled (i.e. the individual has been physically present in his or her home country for an aggregate of two years after completing the Exchange Visitor program), the individual is free to re-enter the U.S. in any nonimmigrant visa category for which he or she is qualified.

This requirement is imposed upon the J-1 Exchange Visitor under one or more of the following circumstances:

* When the Exchange Visitor's program is financed by the U.S. government or by the home country government. This includes, but is not limited to, Exchange Visitors whose visas were sponsored by organizations such as Fulbright, the Exchange Visitor Program, Organization of American States, Amideast, etc. Note: Funding that is part of a Columbia professor's government grant and which is partially used as stipends or salaries for graduate students or research fellows is not considered government funding for this purpose.

* When the Exchange Visitor has acquired a skill which is in short supply in his or her own country, and that skill appears on the Exchange Visitor Skills List of the U.S. Department of State (published in the Federal Register, June 12, 1984, and subsequent updates). Refer to the Department of State Exchange Visitor Skills List web page for additional information.

* When the Exchange Visitor is a graduate of an international medical school participating in an internship, residency, or clinical training program in the U.S. sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).

The two-year home country residence requirement and other conditions of J-1 status are explained to the J-1 Exchange Visitor on page 2 of the form DS-2019. The J-1 Exchange Visitor is required to sign both of these pages to signify that he or she understands the conditions before applying for the J-1 visa.

*************Finally ANOTHER ISSUE YOU WILL PROBABLY RUN UP AGAINST*************

An immigrant visa applicant who is ineligible for a visa under INA 212(a)(9)(B) “Unlawful Presence” may not apply for a waiver unless he or she is the spouse or son or daughter of a U.S. citizen or lawful permanent resident (LPR). A waiver under INA 212(a)(9)(B)(v) will be granted in such a case only if the applicant can establish that denial of his or her admission would result in extreme hardship for the U.S. citizen or LPR.

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So..after you determine "if" she has accrued unlawful presence, and if she needs to stay in home country for 2 years, THEN you can see if she even qualifies for I601 waiver which I don't think she does as a Fiance. There has to be a "qualifying relative" either spouse or parent who is a US Citizen.

If overstay was only issue then it will take about 8-9 months if you decide to get married to process the I130, then another 6-7 months to process the I601 "IF" you actually have a qualifying hardship.

good luck, and if I were you I would get an attorney who if very familiar with overstay issues and J1 requirements before I proceeded with any paperwork.

[Brother Hesekiel 2,236]

Unless I am missing something, her visa expired in September 2008 and she left in September 2009. According to my calculator, that's a 10-year, not a 3-year ban.

[Used to be broken 147]

Unless I am missing something, her visa expired in September 2008 and she left in September 2009. According to my calculator, that's a 10-year, not a 3-year ban.

It does look like a 10 year bar, not sure with the J1 issue if its another obstacle to deal with because its a different hardship standard more difficult than "extreme hardship" for the qualifying relative. Depending on when they submit the waiver paper work that could be another "issue" to contend with. It also carries the same requirement of having a qualifying relative which a Fiance is not.

If you are subject to the INA 212(e) and want a waiver of the two-year foreign residence requirement, there are 5 grounds for waivers. A waiver from the two-year home residency requirement is challenging, but many of those who are subject to the two-year home residency requirement file for the waiver application on their own. The waiver options available may depend on a variety of factors. The simplest type of waiver is based on a letter of "No Objection" from one's home country government. However, physicians involved in patient care are not eligible for this type of waiver.

If a J-1 exchange visitor who is subject to but does not wish to comply with the two-year foreign residence requirement may apply for a waiver of that requirement under any one of the five applicable grounds for a waiver set forth in the INA 212(e). Choose the one that you qualify for or applies to your situation:

1) No Objection Statement (NOS);

2) Request by an interested government agency (IGA);

3) Fear of Persecution;

4) Exceptional Hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange; visitor

5) Request by a designated State Department of Public Health or its equivalent, or called CONRAD.

4. To Determine if You are Subject to the Two-year Foreign Residency Requirement

Often, it is unclear whether one is subject to the two-year home residency requirement. The notation on one's J-1 visa stamp is not always accurate, as may also be the case with the information on one’s DS-2019 Form.

To determine if you are subject to the two-year home residency requirement, you should first examine your DS-2019 Form along with your J-1 visa. The two-year foreign residency requirement applies if your SEVIS DS-2019 Form (or IAP-66 Form) indicates that the phrase, "subject to the two year residency requirement" is checked, or if your J-1 visa contains the notation "212(E) TWO YEAR RULE APPLIES."

However, no notations of the two-year foreign residency requirement on either your SEVIS DS-2019 Form (or IAP-66 Form) or your visa does not mean that you are exempt from the two-year home residency requirement. It is possible that your exchange visitor program may have changed its rules since your admission to the U. S., or your SEVIS DS-2019 Form (or IAP-66 Form) and visa may be inaccurate.

Sometimes it can be a complex matter to determine whether or not one is subject to the two-year home residency requirement. DOS has a procedure for issuing an opinion in a given case on this issue. If you are not sure whether the INA 212(e) two-year foreign residence applies to you, you may make a written request for an advisory opinion for the applicability of INA 212(e) to your situation. Please note that the DOS does not charge a fee for such advisory opinions, and does not plan to do so. In some instances, it could prove worthwhile to request an Advisory Opinion on the issue from the U.S. Department of State.

To get an Advisory Opinion, write to the United States Department of State (DOS). The DOS is responsible for the administration of the Exchange Visitor program and the two-year foreign residence requirement. The advisory opinion request should include legible copies of every/all DS-2019/IAP-66 ever issued to you, along with a self-addressed envelope, and should be sent to:

INA 212(e) Advisory Opinion Request

The Waiver Review Division, CA/VO/L/W

SA-1, L-603

U.S. State Department

2401 E Street, NW

Washington, D.C. 20522-0106

Enclose all of your DS-2019 forms and old IAP-66 forms (if applicable), and in a cover letter explain why you are uncertain whether you are subject or not to the two-year foreign residence requirement, and ask for a U.S. Department of State’s advisory opinion.

Edited October 2, 2010 by brokenfamily

[momof1 205]

K visa petiioners are qualifying relatives for the purpose of a waiver.

http://www.uscis.gov/files/form/i-601instr.pdf