IR5 Possible Interview Problem, overstayed

[MilkySci 0]

I am petitioning IR5 for my parents. Sorry I have to start from beginning for my story. My parents visited US in 2008 with B2 visa. 2 month before their 6 month stay mark, we filed application for visa extension for another 6 month. It just happened that at that time USCIS was seriously back-logged and we didn't get notice of decision(they were denied of extension) until 9 month later. By that time, my parents already went back to China. One year after they went back to China, they were denied of B2 visa. VO said "Your case does not comply to our country's law". Who knows what that means. VO didn't even give my parents a chance to show the evidence that they left US before the notice of decision was mailed out. Anyway, by that time my parents were totally fed up(They were denied B2 visa for 4 times over the years)so they didn't argue just walked away. Now I am wondering if my parent's overstay would cause trouble again when they go to Guangzhou for interview. I understand we followed the law/rule perfectly and my parents should not be considered overstayed at all. However our experience of visa troubles over the years has told us VO will not bother to look at your evidence if he/she just does not want you pass. So my question is:

Should I front-load the evidences(the notice of decision letter with date on it, the boarding pass of my parents trip back to China, etc.)with DS230 pakage? I am doing EP if that matters. Or should I just not mention anything but just make sure my parents have all the evidences handy when they go to the interview. I am afraid if I do not front-load anything the VO will again deny their visa on the basis of overstay. Chances are VO will not give my parents any chance to explain. But if I do front-load, I am afraid those evidence would draw attention to their "overstay" that VO may not even notice if I didn't mention it.

What should I do? Has anyone with similar situation had any trouble in interview?

[Darnell 8,479]

by definition, they overstayed their visa.

By what - less than 6 months? less than 3 months?

somewhere in there, if less than a certain span, triggers a 3 year ban.

but unsure when the ban is started, when it is ended.

re: explaining all in DS-230 submittal, yes, in fact you must, as there is spot on the form for any 'problems' with prior visas, and yer parents have a problem, best to explain it in their Visa Application set (the IV/DS-230) .

re: sending in via EP - sure - no problem at all - see http://www.visajourney.com/forums/topic/267559-usa-is-now-arizona/page__view__findpost__p__4100571

no any big clue for what's going to happen, as they overstayed a valid visa, as opposed to EWI.

I THINK , worst case scenario, they must file I-601 waiver form ON INTERVIEW DAY after the INTERVIEW is completed. and that's still a maybe - it also may be that there is no problem (and they got lucky, overstay might be foregiven )

Good Luck ! Don't forget that nasty GUZ IV P3 supplement form with EP ! (dl link in the wiki page here )

[MilkySci 0]

Thank you for replying. So it is indeed a problem right? How long they overstayed? If we are talking about unlawful presence, then they do not have any since the date of denial is after the date of their departure. If we are talking about original I-94, then it would be a little less than 180 days. In my parents' case, I don't know how it's possible not to "overstay" since the denial only came in 7 months after their authorized stay. It just doesn't make any sense.

[MilkySci 0]

re: explaining all in DS-230 submittal, yes, in fact you must, as there is spot on the form for any 'problems' with prior visas, and yer parents have a problem, best to explain it in their Visa Application set (the IV/DS-230) .

********

Darnell, I re-read DS-230 but couldn't find "the spot on the form for any problems with prior visas". Can you tell me which page? Thank you.

[Darnell 8,479]

Thank you for replying. So it is indeed a problem right? How long they overstayed? If we are talking about unlawful presence, then they do not have any since the date of denial is after the date of their departure. If we are talking about original I-94, then it would be a little less than 180 days. In my parents' case, I don't know how it's possible not to "overstay" since the denial only came in 7 months after their authorized stay. It just doesn't make any sense.

Sorry, this 'limbo' will drive you nuts.

You think they were lawful because they had applied for extension, and stayed here whilst the extension application was in process, past the I-94 expiry date.

I claim they were unlawful because they stayed here past the I-94 expiry date.

'applying for an extension' gets them nothing, alas.

There is some time windows, as well, so if they overstayed in the wrong bucket, expect a 3 year ban.

I don't know what the buckets are, sorry, but is something similar to 90 days seems forgiveable by VO, 180 days gets 3 year ban, 181 days gets 10 year ban.

If they are in the '3 year ban ' bucket, well, check the departure date - go forward 3 years, and then make sure the interview date is past that date - then is no issue for any waiver. (But this is supposition, really, as you'll have to determine WHICH bucket they fall into)

Edited February 26, 2011 by Darnell

[Darnell 8,479]

Darnell, I re-read DS-230 but couldn't find "the spot on the form for any problems with prior visas". Can you tell me which page? Thank you.

Sorry, my bad - it's not directly there.

Block 35 - will have to have some addendum sheet, and in that addendum sheet, cover the overstay.

Then, page 4, block H - does that math for a 180 day overstay apply to them?

Edited February 26, 2011 by Darnell

[MilkySci 0]

Sorry, my bad - it's not directly there.

Block 35 - will have to have some addendum sheet, and in that addendum sheet, cover the overstay.

Then, page 4, block H - does that math for a 180 day overstay apply to them?

************

Alright. Now I see it. Thank you. Wow you know the forms from head to tail. Block 35 just to list visits and not questions asked.So I just listed dates. Page 4 block H is the critical part, I guess. You really don't want to check anything yes in that part. I checked no in this block. My parents departure date is just a little less 180 day from the I-94 expiration date. On the other hand, the official explanation of "unlawful presence"(from USCIS website)is the time accumulated after the date of denial. My parents left before the date of denial. Of course if VO decides to use the term "unlawful presence" differently, I have nothing to stop him/her doing so. I just don't know what will do us worse: not showing the evidences up-front or showing the evidences up-front.To die or not to die.

Thank you so much to going through the all the details with me.

[LGC 2]

whatever you do, dont lie. that will get you barred forever.

Good Luck.

[MilkySci 0]

whatever you do, dont lie. that will get you barred forever.

Good Luck.

************

Thank you for reminding me of not lying. It's not like we did something wrong and try to cover it up. If I check the box yes to unlawful presence, then I would be lying because my parents do not have any unlawful presence.

[Boiler 45,913]

So they came to visit and stayed 13 months?

And then wondered why they did get another chance to visit?

The bit I am not certain about is whether they have a 3 year bar, if they do they will have to wait it out as you are not a qualifying relative to file a waiver.