Student visa violation

[HoneyandSonny 0]

Hi everyone. I need some info and was hoping someone here can help me. I violated my student visa in December 2007 and was detained in February 2008. I went to a court hearing and the immigration judge granted me voluntary departure and left the U.S. in April 2008. So I've been outside the U.S. for 3.5 years. I read online that student visa violators are banned for 5 years. Is this true? My wife is American and we've been married for over 2 years. We're expecting our first child next January/February. We currently live in Beirut, Lebanon. We haven't decided on when to start our paperwork. Since I only have a 1.5 year left, do you think it's better to wait it out and then start filing? If we file soon, which waiver do we file, I-601 or I-212? Any info would be really helpful. Thanks.

[Sergi9 110]

Hi everyone. I need some info and was hoping someone here can help me. I violated my student visa in December 2007 and was detained in February 2008. I went to a court hearing and the immigration judge granted me voluntary departure and left the U.S. in April 2008. So I've been outside the U.S. for 3.5 years. I read online that student visa violators are banned for 5 years. Is this true? My wife is American and we've been married for over 2 years. We're expecting our first child next January/February. We currently live in Beirut, Lebanon. We haven't decided on when to start our paperwork. Since I only have a 1.5 year left, do you think it's better to wait it out and then start filing? If we file soon, which waiver do we file, I-601 or I-212? Any info would be really helpful. Thanks.

You should start your I130 paperwork now. How long were you out of status? That will determine applicable bar.

[Jojo92122 1,924]

You should start your I130 paperwork now. How long were you out of status? That will determine applicable bar.

Agree. Start the paperwork now. The I-130 establish your wife and you have a marital relationship that permits you to apply for an immigration visa. For this part, it doesn't matter if you violated US immigration laws at this point. Only the relationship matters at this point for approval of the I-130.

Determine which bans apply to you. You may have a 5 years ban for violating your student visa and being deported. You may also have have a 10 years ban if you were unlawfully present in the US for more than one year.

There are several scenarios after approval of the I-130; 1) apply for an immigration, no ban, get immigration visa, or 2) apply for an immigration visa, denied immigration visa because of a ban, file a waiver of inadmissibility, if waiver is approved you get an immigration visa, or 3) wait for ban(s) to expire and file for immigration visa.

[HoneyandSonny 0]

I don't think the 10 year ban applies to me since I was out of status for a few months. In December 2007 the university cancelled my I-20 due to insufficient funds. Then by the end of February ICE came to my house and sent me to a detention center. After I was granted voluntary departure, I left and came back to Lebanon. So if you count from the time my I-20 was cancelled till ICE picked me up, that was 3 months plus a month of detention. So that's less than 180 days and definitely less than a year. So what I'm trying to figure out is whether to wait out the ban or file after we have a baby. I think by the time my wife is due, I'll be close to 4 years being outside of the U.S.

Will having a baby help our case? I read that submitting a birth certificate of our child will prove that our marriage is bona fide.

[Jojo92122 1,924]

I don't think the 10 year ban applies to me since I was out of status for a few months. In December 2007 the university cancelled my I-20 due to insufficient funds. Then by the end of February ICE came to my house and sent me to a detention center. After I was granted voluntary departure, I left and came back to Lebanon. So if you count from the time my I-20 was cancelled till ICE picked me up, that was 3 months plus a month of detention. So that's less than 180 days and definitely less than a year. So what I'm trying to figure out is whether to wait out the ban or file after we have a baby. I think by the time my wife is due, I'll be close to 4 years being outside of the U.S.

Will having a baby help our case? I read that submitting a birth certificate of our child will prove that our marriage is bona fide.

File now and get the I-130 approved. When your ban expires, file for an immigration visa. Having a child is irrelevant.

[HoneyandSonny 0]

So if we file before the 5 year ban expires, which waiver will it be, I-601 or I-212? Or maybe both? I get confused between the 2 and I don't know which one applies to our case. So usually the waiver is filed after the visa interview, correct?

[Little_My 464]

I've never heard of a special 5-year ban for overstaying a student visa.. Generally, if you overstay between 180 and 365 days, you will be subject to a 3 year ban, and over 365 days of overstay means 10 year ban. If what you say is correct - i.e. approximately 4 months of unlawful presence - you shouldn't be subject to any kind of ban at all.. Maybe there is something I am missing in this particular situation, but this has been my understanding.

[Jojo92122 1,924]

So if we file before the 5 year ban expires, which waiver will it be, I-601 or I-212? Or maybe both? I get confused between the 2 and I don't know which one applies to our case. So usually the waiver is filed after the visa interview, correct?

You can only file for a waiver after a denial of an immigrant visa application. The DS-230 is the visa application. The I-130 is not the visa application.

The I-130 is only the first part in the process for you to get an immigration visa. It establishes that your US citizen wife can petition for you. A waiver does not apply to this. You are applying for a visa. This only establish a family relationship that makes you eligible to apply for an immigration visa based on that relationship. It doesn't matter if you have a ban or not at this point which is why I suggest you file this now - there is no reason to wait. An approved I-130 does not expire unless the relationship ends.

You apply for an immigration visa with the DS-230. If your ban has expired when you file the DS-230, then a visa may be issued to you. The IO will make the final decision. If your ban is in place, then you will get a denial.

You can only file for a waiver after the denial of the DS-230.

[Sergi9 110]

I've never heard of a special 5-year ban for overstaying a student visa.. Generally, if you overstay between 180 and 365 days, you will be subject to a 3 year ban, and over 365 days of overstay means 10 year ban. If what you say is correct - i.e. approximately 4 months of unlawful presence - you shouldn't be subject to any kind of ban at all.. Maybe there is something I am missing in this particular situation, but this has been my understanding.

The five year bar is for being in exclusion, deportation or removal proceedings, now he requires I212 to waive the ban. Check with an attorney

Edited September 22, 2011 by Sergi9