Overstayed because falsely accused, have to wait for court date

[Boiler 45,525]

Your Passport was confiscated by the court, you never mentioned that.

[BaBamSam 239]

How did I overstay as a result of my actions? I said that I was falsely arrested. I was planning on leaving.

The DA never went to trial in the first case because of no/lack of evidence. Same thing with this new case.

I am ready to go to trial because I know how easy it will be to win it. I have both material evidence AND witnesses who are ready to testify. So, I can easily prove these are lies, let alone them trying to prove I did something. The problem is that you can ONLY go to trial when the DA is "ready" which he will never be since he knows my ex lied (my attorney told me the DA told her that).

Therefore I have NOT overstayed my visa as a result of MY actions, rather as a result of my ex's actions of falsely accusing/arresting me.

Since the ONLY reason I overstayed was because of the court dates, I don't see how it wouldn't be waived. I didn't do anything wrong. I haven't worked since, I have lived on my own savings. I have just patiently been waiting for the next court date as a responsible young man would do. This shows that I didn't have any other incentive to stay.

I am sorry but it isn't like the Icelandic volcanic eruption lasted a month or so. Also, people could've changed their itinerary and made sure they left the US territory on time (Mexico, Canada, etc). I know it is kind of crazy but in theory they could have done something. I couldn't. I got falsely accused and therefore had court dates I had to attend.

I hope USCIS and/or DHS will understand this.

I'm sorry that all of this happened to you - it's really a ####### situation.

Unfortunately, it is very unlikely that it will get waived. As many have pointed out, you could have had your attorney make an appearance on your behalf (immigration laws do take precedence). Technically, as soon as you left/lost your job you were in grey area as you were not obeying your visa. If that gets brought up, which it will if you try to explain this case to immigration, it will count against you.

My advice is to get out of the country now and have your lawyer represent you in court. Just like the Icelandic people who were stuck, you could've done something and left and came back or had your lawyer represent you.

I wish you the best with this unfortunate situation.

[Unluckyguy 2]

Actually, "they" don't "put you in" or "take you off". While on OPT, you are responsible for reporting to your school's international office every time you start and end a job.

As above, you were responsible for reporting that you stopped working; and you failed to do that. There is a limit of 90 days that you can be unemployed while on OPT. If you exceed that, then you technically lose your OPT status.

I don't know how many days of unemployment you may have accumulated before you lost your job in June. If you had accumulated no days of unemployment before then, then you would have 90 days since you lost your job (so until mid-September) when you would still be in valid OPT status. Your overstay would start when that ended.

So it may be that you're just coming up on 180 days around now.

Thank you for your answer.

Actually I didn't have 90 accumulated days of unemployment before the 1st incident. I was also planning on leaving.

SO, my point is that I got stuck and overstayed (the OPT, not my visa as my F-1 visa is valid until end of 2014) ONLY because I had these court dates. These court dates where I was to be present. I was court ordered. So, I had to stay in the US until the case was dismissed. Then, same thing happened a week after the first case got dismissed, when my ex, AGAIN, falsely accused/arrested me. I again had to wait for the court dates, even though I am completely innocent.

I didn't want to stay, I knew about the 90 days limit. How is it my fault that my ex went crazy and did all this?

I would understand I had actually done something criminal, then, it would be completely normal. But both cases are going to be dismissed without a trial.

I would like to know more about the OP I could accept "without admitting" (Family Court), would it yes or no have an impact on my future H1-B application or Green Card application?

Thank you

[Unluckyguy 2]

Your Passport was confiscated by the court, you never mentioned that.

? I never said the passport was confiscated by the court.

I couldn't leave the country since I was under OPT and that doesn't allow you to come back in the country. If I left the country I wouldn't have been able to come back and attend the court dates. My attorney told me to stay in the US until the next court dates, and wait until the case got dismissed.

[Boiler 45,525]

You have not explained why you had to be in the US between court dates you had to attend?

[Boiler 45,525]

? I never said the passport was confiscated by the court.

I couldn't leave the country since I was under OPT and that doesn't allow you to come back in the country. If I left the country I wouldn't have been able to come back and attend the court dates. My attorney told me to stay in the US until the next court dates, and wait until the case got dismissed.

The way you said it sounded like your Passport had been confiscated by the court.

Why would you not be able to re-enter as a visitor to attend mandated court appearances?

Are you sure you are not allowed to travel whilst on OPT, anyway you finished OPT before all this happened.

[Unluckyguy 2]

Im not trying to give you a hard time. I can assure you I have read everything you wrote. Some of your information is spotty.

This is what I can gather.

--You were arrested once and the case was dismissed. 90 day speedy trial. This in itself should not put you anywhere near the 180 day period for an overstay, nor be held against you for obtaining a new visa in the future as the charges were dismissed because they were unfounded. So I really dont see all the moaning and whining about how this is oh so unfair. Yes, its unfortunate. But it was resolved in 90 days. Theres no mark against you.

--a restraining order was issued and you VIOLATED IT. You maintain you did not intentionally violate it as it was not served properly. You were then charged with a second criminal case which you are currently fighting. You expect it to be dismissed in apx 90 days.

--you have a pending family court case where a order of protection may or may not be granted. You can either oppose it being granted or try to fight it. Most likely your position wont matter in the end. The court will do what they think is in the best interest of the alleged victim. If they feel she is in danger, they will grant her the order.

While you may think Im being harsh, Im just giving you the facts, and the facts are the USCIS has no room in immigration for sob stories or I really wanted to leave but I couldnt because circumstances beyond my control happened. See Can-wife post above ie volcanic eruption= sorry no waiver.

USCIS is not a sympathetic organization. Every immigrant has a story filled with trials and tribulations. There are very few waivers available and they are very hard to prove.

So yes, while I get why you stayed, waiver wise, I honestly dont think you have a leg to stand on. If you pass the 180 day mark, the ban will be in effect.

Like I said, you can attempt to make a case that you were a battered victim, but I dont forsee it being approved. If it does go that route, I would suggest you consult with a qualified attorney to prepare your next visa application and the appropriate waiver to attempt to overcome the ban, because its definitely not a do-it yourself situation.

Having an order of protection issued against you is not going to be helpful in making you appear to be the battered victim either, so I would suggest you do everything in your power to ensure one is not granted.

You are correct, you can accept an OP with out admitting to anything. A lot of abusers do. Its loosely speaking part of the constitution- not incriminating yourself. You dont have to admit to wrong doing. You can simply show up and accept it, or in some cases, not show up at all and it will be granted in your absence.

Possible effects on US immigration would be like I said before, if the visa requires you to be of good moral character- having a order of protection issued against you shows the opposite. How would they know? Again thats a slippery slope. You never really know what records can be seen. Misrepresentation is lying. Lying will cause the visa not to be issued. Lying by omission is lying. You never want to lie or omit things.

Thank you SO MUCH for your very sincere response and concern.

However, I might not have made it clear that I NEVER breach ANY Order of Protection. I have NO IDEA where you understand that I "maintain I didn't intentionally breach it". I would like to know where I mentioned this. Maybe my English isn't good enough (even though I graduated with honors from a US college, and a Masters program).

- The judge understood that on the first court date. Why my ex HASN'T been punished for this I have no idea. Why this case is STILL going on even though the judge knows something was fishy there and that it led to me getting falsely arrested is not understandable in my mind. It is also important to mention that I have not HAD any contact with my ex in that week (in between first case dismissed and 2nd false arrest). The only thing I did was to send her 2,3 emails forgiving her. One was on that day at around 2pm, I then got served by my landlord (!) at 6pm, when it has to served in hand by the person supposed to do so. My ex WAS present and both the landlord AND my neighbor are ready to testify to that. My ex even telling my neighbor that they had to serve me papers. i.e.: Therefore she knew I didn't have them by then (6pm).

Everything can prove that my ex set everything up in order to have me falsely arrested, 2 days later.

So, NO, I didn't breach any OP.

- YES, the first arrest which led to the 90 day speedy trial, dismissed case without trial, did put me OVER the limit of 90 days of unemployment limit for the OPT. SO it led me to OVERSTAY. The SECOND arrest, a week after, led me to go over the 180 days limit (3 year ban).

So, you are telling me that having an OP against me wouldn't be good (even if it's in Family Court and that it would be "without admitting") for me, but then you say that if I fight it "Most likely your position wont matter in the end". And I believe you. I have heard/read so many stories of corruption and biased judges in the US Justice system for DV cases that I believe you. You are the first one to tell me not to lie. I would be lying if I said I did any of these things. You are saying that if I fight it the court will more than likely give the OP anyways, isn't that worst than accepting the OP without admitting? Since then, the court cannot find any wrongdoing whereas if their is a trial, the judge will "find" that there needs to be an OP against me without any proof. Can a Family Court judge give an OP "without admitting" to me, at a trial?

I was kind of kidding about being a battered man comment. She did slap me a couple times before but she never attacked me like that. Maybe it is important to mention that she is bipolar and that she had just applied some medication for her yeast infection that she hadn't treated in 3 days. It made her extremely uncomfortable and led her to become simply put "evil", it was frightening.

I REALLY appreciate your answer and hope you will answer me again. I don't think you are being harsh at all, I want to get the true story.

Thank you

[Unluckyguy 2]

The way you said it sounded like your Passport had been confiscated by the court.

Why would you not be able to re-enter as a visitor to attend mandated court appearances?

Are you sure you are not allowed to travel whilst on OPT, anyway you finished OPT before all this happened.

I had no idea I could that. I was never told I could leave and come back. Also, I though that it would be seen as fleeing a court case and that if I tried to come back on the US territory I wouldn't be accepted since there was a court case against me. Anyways, that isn't even the question. It isn't like I knew there wasn't going to be a trial. I had NEVER been arrested or had anything to do with the police before in my life. I had no idea how everything worked. I thought that any day my lawyer could call me and tell me the DA was ready. I really hoped there was going to be a trial so that everyone could know I was innocent. My neighbors couldn't wait to testify for me too.

Also, it's not like I have unlimited money to spend on plane tickets. As I explained I had just graduated from my Masters, after having graduated from University, so you can imagine how much in debts I was, and still am.

[Unluckyguy 2]

I'm sorry that all of this happened to you - it's really a ####### situation.

Unfortunately, it is very unlikely that it will get waived. As many have pointed out, you could have had your attorney make an appearance on your behalf (immigration laws do take precedence). Technically, as soon as you left/lost your job you were in grey area as you were not obeying your visa. If that gets brought up, which it will if you try to explain this case to immigration, it will count against you.

My advice is to get out of the country now and have your lawyer represent you in court. Just like the Icelandic people who were stuck, you could've done something and left and came back or had your lawyer represent you.

I wish you the best with this unfortunate situation.

I had absolutely NO IDEA I could do that, have my attorney make an appearance on my behalf. I was told that if I wasn't present in court that the judge would take a decision based on this and that it wouldn't be good for me. My lawyer knew my situation and didn't tell me anything. My lawyer told me to stay and come to court on the court date. So, I did. I was being responsible. I have never hurt anyone, I am a good guy. I just fell in love with a bipolar crazy girl. Surely this can't be used against me.

I'm staying since anyways I am already above the 180 days and that the 1 year limit will only be in June. I plan on leaving right after mid-April's last court date.

So it looks like I'd get a 3year ban. Anyways, to get an H1-B you need to work at least for that period of time usually for a company to get one.

Where would I have to claim a waiver for this? I sincerely only stayed for the court dates. Also, it isn't like I know 100% if the DA wouldn't be ready at any point of time before the 90 days.

Do you know if I accepted the OP without admitting in Family Court (I guess it would be a 1 year OP), if it would have any effect on the possible H1-B application, 3 years from now?

Thank you

[BaBamSam 239]

I had no idea I could that. I was never told I could leave and come back. Also, I though that it would be seen as fleeing a court case and that if I tried to come back on the US territory I wouldn't be accepted since there was a court case against me. Anyways, that isn't even the question. It isn't like I knew there wasn't going to be a trial. I had NEVER been arrested or had anything to do with the police before in my life. I had no idea how everything worked. I thought that any day my lawyer could call me and tell me the DA was ready. I really hoped there was going to be a trial so that everyone could know I was innocent. My neighbors couldn't wait to testify for me too.

Also, it's not like I have unlimited money to spend on plane tickets. As I explained I had just graduated from my Masters, after having graduated from University, so you can imagine how much in debts I was, and still am.

Again, I'm sorry this situation is so terrible. I believe that you didn't know what was going on or what all of your options were. Unfortunately, the reality is that ignorance isn't going to be an excuse for immigration nor is the cost of plane tickets

[BaBamSam 239]

I had absolutely NO IDEA I could do that, have my attorney make an appearance on my behalf. I was told that if I wasn't present in court that the judge would take a decision based on this and that it wouldn't be good for me. My lawyer knew my situation and didn't tell me anything. My lawyer told me to stay and come to court on the court date. So, I did. I was being responsible. I have never hurt anyone, I am a good guy. I just fell in love with a bipolar crazy girl. Surely this can't be used against me.

I'm staying since anyways I am already above the 180 days and that the 1 year limit will only be in June. I plan on leaving right after mid-April's last court date.

So it looks like I'd get a 3year ban. Anyways, to get an H1-B you need to work at least for that period of time usually for a company to get one.

Where would I have to claim a waiver for this? I sincerely only stayed for the court dates. Also, it isn't like I know 100% if the DA wouldn't be ready at any point of time before the 90 days.

Do you know if I accepted the OP without admitting in Family Court (I guess it would be a 1 year OP), if it would have any effect on the possible H1-B application, 3 years from now?

Thank you

We posted simultaneously, but immigration is not going to see ignorance as an excuse Your lawyer may have really let you down on this one. You sound like a good guy who was acting as responsible as you thought you could, which makes this super unfortunate. It can and, sadly, most likely will be used against you. Immigration will see it as an overstay and you will receive the ban.

You'd have to consult an immigration lawyer about your situation to learn about waivers and the like, which will be timely and expensive.

I do not know anything really about accepting the OP, my best suggestion would be to consult and immigration lawyer on it, but since USCIS takes cases of domestic violence very seriously, I would assume that it might come off as a black mark. Again, that is just an assumption.

[Boiler 45,525]

Also, it's not like I have unlimited money to spend on plane tickets. As I explained I had just graduated from my Masters, after having graduated from University, so you can imagine how much in debts I was, and still am.

But you can afford to spend nearly a year without working in the US?

[Unluckyguy 2]

Again, I'm sorry this situation is so terrible. I believe that you didn't know what was going on or what all of your options were. Unfortunately, the reality is that ignorance isn't going to be an excuse for immigration nor is the cost of plane tickets

OK so where can I plead for a waiver of the 3-year ban because I got falsely accused? Can I do this now? Do I need to get an immigration lawyer for this?

[Unluckyguy 2]

But you can afford to spend nearly a year without working in the US?

I can now because my dad died. I got the inheritance since. I couldn't leave the US to go to my dad's funeral since I wouldn't be allowed back in the US because I had just graduated and didn't get the OPT card yet. Anyways you can't leave the country and comeback with OPT. It took about 6 months to get the inheritance.

It's crazy how you are trying to find ANYTHING to say it's my fault.

I get accused of DV by my gf and people on here don't understand why I didn't leave the country. Are you serious? If I left the country I couldn't have come back in the US for the court dates. I would have risked for the DA/judge to think I left to flee the court system.

I didn't know I could just send the Public Defender and NOT be present in court.I didn't know I could leave the country and come back on a visitor visa. How would they give me that visitor's visa when I had a court case against me? The Overstay limit was passed during the 90 day speedy trial waiting period of the first case. How could I have left and come back in the US after having OVERSTAYED. When I would have arrived in the US DHS would have denied me access to the US because I had already overstayed... -> I had to stay in the US. NO?

[BaBamSam 239]

OK so where can I plead for a waiver of the 3-year ban because I got falsely accused? Can I do this now? Do I need to get an immigration lawyer for this?

Consult a lawyer. I just did a quick bit of research on it, and your case does not look hopeful. But a lawyer is someone you have to talk to about all of this. And a good one.

I can now because my dad died. I got the inheritance since. I couldn't leave the US to go to my dad's funeral since I wouldn't be allowed back in the US because I had just graduated and didn't get the OPT card yet. Anyways you can't leave the country and comeback with OPT. It took about 6 months to get the inheritance.

It's crazy how you are trying to find ANYTHING to say it's my fault.

I get accused of DV by my gf and people on here don't understand why I didn't leave the country. Are you serious? If I left the country I couldn't have come back in the US for the court dates. I would have risked for the DA/judge to think I left to flee the court system.

I didn't know I could just send the Public Defender and NOT be present in court.I didn't know I could leave the country and come back on a visitor visa. How would they give me that visitor's visa when I had a court case against me? The Overstay limit was passed during the 90 day speedy trial waiting period of the first case. How could I have left and come back in the US after having OVERSTAYED. When I would have arrived in the US DHS would have denied me access to the US because I had already overstayed... -> I had to stay in the US. NO?

In hindsight, you should have contacted an immigration lawyer immediately. Obviously, what does is done. As horrible as it is, you overstayed and are highly unlikely to get the ban waived :/