Overstay, 10y ban

[ThinkDifferent 1]

would like to hear your opinion on what could be the most efficient way to handle this situation with my spouse's visa.

Here is the history

1) she entered the US in 1998 with visa valid for 6 months.

2) decided to extend the visa and paid money to some bullshit lawyer, who then claimed that the visa was extended for another 6 months (....I do not see any evidence of that in her passport....is there a way to find out whether the visa was extended at all??)

3) afterwards applied for an extension again (paid about 2K USD) and was told that her papers are under consideration....

4) while in US she was living with some family as a domestic helper so that she could send money back home to her parents and child.

5) Left voluntarily in 2004.

6) when leaving no I-94 was in her passport (...she can't remember what happened to it...she thinks it disappeared when she got passport back from that lawyer).

We've been together for about 10 years (married for 3y). I recently got an offer to go to US to work for some big financial firm. she would need to apply for an H-4 visa.

we would like to try to apply for a waiver. company will handle the application/waiver process.

what do you think are our chances and what would be the best approach?

thank you

[NigeriaorBust 4,087]

There is no waiver available to you. Unless you can prove the extentions were granted she will have to wait out the ban . Sorry.

[ThinkDifferent 1]

sure there is a waiver.

"If the applicant is inadmissible because they have been unlawfully present in the United States for more than 180 days (3-year bar) or one year (10-year bar), they may apply for a Waiver of Ground of Inadmissibility on Form I-601."

http://en.wikipedia.org/wiki/United_States_Waiver_of_Inadmissibility

[Used to be broken 147]

sure there is a waiver.

"If the applicant is inadmissible because they have been unlawfully present in the United States for more than 180 days (3-year bar) or one year (10-year bar), they may apply for a Waiver of Ground of Inadmissibility on Form I-601."

http://en.wikipedia.org/wiki/United_States_Waiver_of_Inadmissibility

The problem is the I601 waiver needs a "qualifying relative" to submit it, US Citizen Spouse or Parent.

[Used to be broken 147]

If you are coming on an H1 which is a "dual intent" VISA then apparently you can apply for green card to become an LPR.. legal permanent resident.

However not sure how long that process takes and may have some issues regarding waiting, backlogs and country caps.

You should check with an Employment Immigration Attorney who has someone in the office who also works on inadmissability isssues, because although you said your company is willing to pay for the fees, they might be considerably higher than a normal case with no waiver issues.

keep me posted on what you find out, I would be interested to hear what ideas they come up with for your case.

[ThinkDifferent 1]

The problem is the I601 waiver needs a "qualifying relative" to submit it, US Citizen Spouse or Parent.

is that the case? could you give me a reference to where it says so?

[ThinkDifferent 1]

If you are coming on an H1 which is a "dual intent" VISA then apparently you can apply for green card to become an LPR.. legal permanent resident.

However not sure how long that process takes and may have some issues regarding waiting, backlogs and country caps.

You should check with an Employment Immigration Attorney who has someone in the office who also works on inadmissability isssues, because although you said your company is willing to pay for the fees, they might be considerably higher than a normal case with no waiver issues.

keep me posted on what you find out, I would be interested to hear what ideas they come up with for your case.

sure. we will decide how to proceed within the next few weeks.

[NigeriaorBust 4,087]

is that the case? could you give me a reference to where it says so?

Read the instructions for the form 601 instructions

It is full of references to the USC who must file it and prove hardship

[ThinkDifferent 1]

"The waiver may be granted if your qualifying U.S. citizen or legal permanent resident relative ...."

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"The waiver may be granted if your qualifying U.S. citizen or legal permanent resident relative ...."

If are coming on a H1 which is a "dual intent" visa, in other words can apply for AOS as a legal permanent resident.. thats a big "IF" as they are extremely limited in number and have been over subscribed and have been exhausted by April of each year in most cases..

Then you would have to have same employer sponsor you for the LPR status which is an Immigrant VISA. This is also a long process depending on what country you are from, if I understand correctly some folks are waiting as long as 10 years for this change over..

Once you get the LPR visa approved you become eligible to sponsor wife and can apply for the LPR spouse waiver I601. Figure 18 months for this process from start to finish with no garauntee your beneficiary will be approved.

Adjudication Guide for I601 for overseas offices LINK

While you have a pretty straightforward overstay issue with it appears no other aggravating factors, the standard for approval is "extreme hardship", not minor inconvenience. This is even more difficult to prove when you have lived outside the United States, both speak a foreign language and have minimal family ties to the US as opposed to a US Citizen who would have extensive job family connections face cultural obstacles and employment problems etc. Its not an easy route nor a simple form and informality.

Times for LPR spouses to be able to join have been reduced significantly in the past couple of years the average time to wait was in the neighborhood of 5 years in 2006 heard that has changed but not sure by how much, you will have to research that too. I think with that type of VISA you run into cut-off dates of eligibility and numerical limitations by country.

There is a non-immigrant waiver out there with less strict criteria but I am not as familiar with as the I601. But if I am not mistaken its a visitor visa not one she could stay any significant length of time on.

Edited October 13, 2010 by brokenfamily

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Here is something else that you might look into;

212 (d) 3 Non-immigrant waiver

[ThinkDifferent 1]

great. we'll decide soon what we are going to do.

Спасибо!

[ThinkDifferent 1]

brokenfamily

Just wanted to give you an update on our case.

My wife's waiver and L-2 visa were approved. My company used immigration lawyers services to help with our case. First, we applied for my L-1 visa, which I got approved within 2 weeks, then we applied for a 212-d(3) waiver for my wife.

For the latter we prepared a letter from my employer explaining the importance of my presence in the US, my wife's affidavit letter, 3 reference letters from friends, one letter from local russian church she did some charity work for.

To be honest we were amazed how quickly her case was solved. Last Monday we went to the consulate, and the same guy who issued my visa said that he will be happy to recommend a waiver but the final decision is made by DHS. Nine days later we received an approval of her waiver from DHS.

Edited January 18, 2011 by ThinkDifferent

[Used to be broken 147]

brokenfamily

Just wanted to give you an update on our case.

My wife's waiver and L-2 visa were approved. My company used immigration lawyers services to help with our case. First, we applied for my L-1 visa, which I got approved within 2 weeks, then we applied for a 212-d(3) waiver for my wife.

For the latter we prepared a letter from my employer explaining the importance of my presence in the US, my wife's affidavit letter, 3 reference letters from friends, one letter from local russian church she did some charity work for.

To be honest we were amazed how quickly her case was solved. Last Monday we went to the consulate, and the same guy who issued my visa said that he will be happy to recommend a waiver but the final decision is made by DHS. Nine days later we received an approval of her waiver from DHS.

Very good to hear. I was generally aware the "non-immigrant" waiver was a much easier approval than the immigrant waiver, but this is really FAST !

So glad it panned out for you and that the 212(d)3 was the ticket !!!

[catcherintherye 0]

ThinkDifferent,

It would be great if you can describe your or your wife's experience at the visa interview.

Edited March 28, 2011 by catcherintherye