Overstayed and waiting for approval

[clark83 5]

Hi,

Does anyone have any experience about seeking approval of I-130 after overstaying on visitor visa and working wihout SSN, but paying taxes? If so, can you share please.

[melissa-n-alfredo 10]

Hi,

Does anyone have any experience about seeking approval of I-130 after overstaying on visitor visa and working wihout SSN, but paying taxes? If so, can you share please.

There is the possibility that the consulate will deny the visa and ask that you submit a 601 waiver, for the overstay. Just be honest in the interview, because if that information is actually concealed, it could cost a permanent ban instead of 3 or 10 year ban (depending the amount of time overstayed). The 601 waiver is submitted to the Phoenix lockbox, with $585 fee and proof of extreme hardship on USC fiance, if you were to be denied waiver. There is a forum on VJ, explaining more of the process and what to expect. We are also going thru this, due to illegal presence.

[clark83 5]

There is the possibility that the consulate will deny the visa and ask that you submit a 601 waiver, for the overstay. Just be honest in the interview, because if that information is actually concealed, it could cost a permanent ban instead of 3 or 10 year ban (depending the amount of time overstayed). The 601 waiver is submitted to the Phoenix lockbox, with $585 fee and proof of extreme hardship on USC fiance, if you were to be denied waiver. There is a forum on VJ, explaining more of the process and what to expect. We are also going thru this, due to illegal presence.

Thank you! and hope all ends well for you guys.

I though that this is only done when one enters the US without inspection?

[bigdog 376]

You may encounter additional issues if you used someones social, to pay your taxes.

[melissa-n-alfredo 10]

Thank you! and hope all ends well for you guys.

I though that this is only done when one enters the US without inspection?

Thank you! No, the 601 waiver is used for bars on several different reasons such as: illegal entry, overstaying visa, and criminal or medical issues where consulate has denied visa for that particular reason. However, the officer performing the interview will let you know if you can and should fill out the waiver. The waiver itself, takes about 4 months to reach a decision. The main and most important thing though, is to be completely honest in your interview. Most of the time, the officer already knows the answer to his/her questions, before even asking in the interview. If false statements are given, it could mean a permanent bar. And that is not a situation anyone wants to be in. Good luck !!!

[Kathryn41 3,205]

Topic has been moved from the K-1 forum as the OP is not seeking a fiancee visa and the discussion is more appropriate in this forum.

[jaycali 415]

Hi,Does anyone have any experience about seeking approval of I-130 after overstaying on visitor visa and working wihout SSN, but paying taxes? If so, can you share please.

Thank you! and hope all ends well for you guys. I though that this is only done when one enters the US without inspection? No, this is for all overstayers regardless of how you entered. The main difference is that if you entered with inspection, you're eligible for adjustment of status in the US as an entry bar is not applicable. If you have already left the US, you're still facing a bar from entry. If you entered without inspection, you have no status and therefore cannot adjust status since you have no status to adjust from. In essence, the bar isn't from being in the US, it's a bar from entering the US.

Your I-130 will most likely be approved. The I-130 is not a visa, it is just a petition to establish that a family relationship exists. As long as the USCIS is satisfied that you're married for legitimate reasons, your I-130 will be approved regardless of the overstay. But the USCIS does not grant visas. The Department of State does.

A possible denial will not be until your interview at the consulate/embassy (Dept of State) in your country. This interview is for a CR-1 or IR-1 visa. No consulate will issue you a visa if you have a bar from re-entry, and your CR-1/IR-1 visa will be denied by the consulate.

Whether the visa will be approved or denied will depend entirely on two factors:

1. How long did you overstay?

2. How did you manage to obtain a job and pay taxes with no social? (Depending on your answer to this, there may be more factors involved)

Let's start with 1.

a. If you overstayed less than 180 days.

- You should not encounter too many problems.

b. If you overstayed more than 180 days, but less than one year.

- You have a 3 year bar from re-entry. This bar was triggered when you left the US. So if you left the US more than 3 years ago, you're fine. If not, you will not be eligible for any visa until the 3 year anniversary of you leaving the US.

c. If you overstayed more than one year.

- You have a 10 year bar from re-entry. This bar was triggered when you left the US. So if you left the US more than 10 years ago, you're fine. If not, you will not be eligible for any visa until the 10 year anniversary of you leaving the US.

Is there any way around this? Yes, potentially. If you left voluntarily, you may be eligible for an I-601 waiver. To be eligible for an I-601 waiver, your US citizen spouse must prove to the satisfaction of the USCIS that he/she would suffer extreme hardship beyond just simply missing you, should you be forcibly separated, and that your spouse absolutely cannot live in Slovakia with you. Many couples do get their I-601 waivers approved, but this will depend entirely on 1. the degree of your overstay, and 2. the degree of hardship suffered by your spouse. Often, these two are put up against one another. For instance, if you overstayed for 181 days, the degree of hardship demonstrated may have a lower threshold than if your overstay was for 5 years. This is lawyer territory though.

Keep in mind also that being honest about your overstay throughout this process will in the worst case land you a 10 year bar and a fair chance to file a successful waiver. Lying about the overstay will land you a lifetime bar for material misrepresentation, and virtually no chance of a successful waiver.

2. How did you work and pay taxes without a SSN?

- If you were simply working i.e. construction under the table and reported your income with some sort of a taxpayer id number, then your overstay is your main concern.

- If you used a fake SSN or someone else's SSN, you're facing inadmissibility for fraud. This is bad. Lawyer up.

- US employers are required to establish your work authorization before hiring you. This is most commonly done with a form I-9. It is the employer's responsibility that you fill out the I-9, so if your employer just offered you an under the table job with no I-9 - That's not your responsibility. However, if you did fill out an I-9, what you filled out on your I-9 will be very important. If you either 1. Declared yourself a US citizen on the I-9, or 2. Filled in a fake or someone else's SSN on that form you're toast. Claiming to be a US citizen when you're not is immigration suicide, no waiver, no appeal, no nothing. Using a fake or someone else's SSN.. See above.

Best of luck.

Edited January 12, 2013 by Jay Jay

[jedfe 2]

Hi,

Does anyone have any experience about seeking approval of I-130 after overstaying on visitor visa and working wihout SSN, but paying taxes? If so, can you share please.

Overstays and working without documentation are "forgiven" for spouses of US citizens, as long as you did not claim to be a citizen as stated by other posters. You don't need any special waivers if you are currently in the US. Just file your I-130, I-485, and your I-765.

[jaycali 415]

Overstays and working without documentation are "forgiven" for spouses of US citizens, as long as you did not claim to be a citizen as stated by other posters. You don't need any special waivers if you are currently in the US. Just file your I-130, I-485, and your I-765.

The underlined, bolded part is key.

Just to clarify. It seems that some of the advice given in this thread are given on the basis of the OP currently being in the US. If this is for a CR-1 or IR-1 visa, he/she is presumably outside the US and unlawful presence is a major factor.

I-601 waivers for applicants currently in the US are only applicable if the applicant entered illegally.

OP:

If you are currently in the US. DO NOT LEAVE. File I-130 and I-485 together and wait it out. You will not be denied for overstay, and no I-601 is needed since you entered legally.

If you are not currently in the US, read my previous post over again, and if a bar applies, consult with a lawyer.

Edited January 12, 2013 by Jay Jay

[Darnell 8,478]

+20 zillion to JayJay - Your ImmiFu is high today, Yay !

[clark83 5]

Thank you so much for all the info, I can probably sleep a little better from now on.

Well, the taxes are paid thought a tax ID number which is available to everyone regardless of immigration status. We are also filling the I-130 while staying in the US and didn’t file it together with the I-485 coz we didn’t know how to fill it out. It asked for the visa number and SSN and we didn’t know how to fill it out. We had no choice but the find work coz I’m a full time medical student I can’t work more than part time. The life in NYC is expensive......

Thank you for the info again.

[jaycali 415]

Thank you so much for all the info, I can probably sleep a little better from now on. Well, the taxes are paid thought a tax ID number which is available to everyone regardless of immigration status. We are also filling the I-130 while staying in the US and didn’t file it together with the I-485 coz we didn’t know how to fill it out. It asked for the visa number and SSN and we didn’t know how to fill it out. We had no choice but the find work coz I’m a full time medical student I can’t work more than part time. The life in NYC is expensive......Thank you for the info again.

Good. Great. You can rest easy then. Again, do not under and circumstance or for any reason leave the US (not even to Canada) until your adjustment of status is approved, and you have your green card in hand. Otherwise, you will trigger a 3/10 year bar upon leaving, regardless of whether you have filed for AOS or not.

For records sake, you should change your filing status from "IR-1/CR-1 visa" to "Adjustment of Status (Pending)" in your profile - That way you will get more accurate responses in the future. IR-1 and CR-1 visas are for spouses residing outside the US and who need visas to enter the US. Since you are currently residing in the US, you will not be getting a visa, but rather a change of status. I know it seems like a small detail, but when dealing with immigration law, one small detail can mean an entire world of difference, as you now know!

As for filing the I-130 without the I-485.. The USCIS may now assume that you are outside the US, since no I-485 has been filed. I would ask in the Adjustment of Status forum regarding how to best correct this. Unfortunately, I'm not very experienced with AOS questions.

One more question I have for you that might be relevant - How did you get into medical school while on a visitor visa? No US educational institution is supposedly allowed to let you study there without legal residence or student status with an I-20.. But again, as long as you did not declare yourself to be a US citizen, or in any way applied and was granted federal financial aid, you should be fine.

Edited January 13, 2013 by Jay Jay