Is it possible to be approved for a green card if my wife owerstayed her visa before?

[TommyFinn1 0]

Me and my wife have lived in finland for a year now. She is finnish and i am american.

I have failed to get a working permit for myself here, so we are palnning to move back to the U.S. We got married here in august this year.

We have set up an appointment for filing for the I-130 at the US embassy in Helsinki.

We have told that if we do it here, it will take from 4 to 8 weeks to process.

But our problem is: My wife has over stayed her tourist visa which was for 90 days, last time we were in the US.

It is possible to overstay by 180 days after the 90 has expired. She has overstayed the 180 days by excatly two weeks, there is a section where they say that a person who overstays this 180 days, will not be able to go back to the US for three years.

We have a very good reason for overstaying, that reason is: my wife was pregnant at the time, and wanted to go back home to have the child, we had to wait to get me a passport, and once that was completed, she had over stayed the 180 days by two weeks. At the airport she said she had lost her green slip (boarding pass you get attached to your passport when you enter the country).

She had honestly lost it!

The airline worker said (when we left) to that "the green slip is for the INS to know when you left the country, since you dont have it anymore, you have to report the INS yourself when you left"

We ofcourse, never reported.

Do they know that my wife overstayed?

She has a new passport. A new last name due to marrying me.

Will they find out? And if they do, will she have to wait in her country for two more years?

We have already set up an appointment at the US embassy.

But we would rather not tell them about this overstaying, even though we did have a reason!

[diadromous mermaid 36]

Me and my wife have lived in finland for a year now. She is finnish and i am american.

I have failed to get a working permit for myself here, so we are palnning to move back to the U.S. We got married here in august this year.

We have set up an appointment for filing for the I-130 at the US embassy in Helsinki.

We have told that if we do it here, it will take from 4 to 8 weeks to process.

But our problem is: My wife has over stayed her tourist visa which was for 90 days, last time we were in the US.

It is possible to overstay by 180 days after the 90 has expired. She has overstayed the 180 days by excatly two weeks, there is a section where they say that a person who overstays this 180 days, will not be able to go back to the US for three years.

We have a very good reason for overstaying, that reason is: my wife was pregnant at the time, and wanted to go back home to have the child, we had to wait to get me a passport, and once that was completed, she had over stayed the 180 days by two weeks. At the airport she said she had lost her green slip (boarding pass you get attached to your passport when you enter the country).

She had honestly lost it!

The airline worker said (when we left) to that "the green slip is for the INS to know when you left the country, since you dont have it anymore, you have to report the INS yourself when you left"

We ofcourse, never reported.

Do they know that my wife overstayed?

She has a new passport. A new last name due to marrying me.

Will they find out? And if they do, will she have to wait in her country for two more years?

We have already set up an appointment at the US embassy.

But we would rather not tell them about this overstaying, even though we did have a reason!

Tommyfinn,

An overstay is an overstay, regardless of if the reason was valid or not.

[JaJo 1]

Tommyfinn,

An overstay is an overstay, regardless of if the reason was valid or not.

Can't them use a waiver?

[payxibka 10,047]

Do they know about it? We live in a computerized world. Her passport was scanned upon her arrival and it was scanned upon departure. You make the call....

[TommyFinn1 0]

Yeah thats not really the question the question is if there is a new passport and passport number with a different last name why would they look at a non valid passports history and the fact that when we left she had lost the green slip they give to turn in when she left so basically there is no real proof for the government that she left except the airlines check-in. SO the question is should we expect any complications with the process having a new passport or not.

[Kez/JWolf 6]

WHY ARE YOU LOOKING FOR A WAY TO LIE ABOUT WHO AND WHAT SHE DID IN THE PAST....

Do you not know that the quickest way to get refused for any visa is to lie to immigration... you are going to have to provide her maiden name and date of birth and information about prior trips to the USA...

Dont be a fool... get it sorted out if you need a waiver to get the visa then file for a wavier.. but be honest and dont try to hide things it will only come back and bite you in the ### at some point in time..

[riblet 0]

I would definitely look at the waiver process, I'm not sure what the actual likelihood of complications would be, but I know that at least one of the forms involved asks for a list of the dates of all visits to the U.S., so you would be revealing it at that point. I personally would try to deal with it rather than avoiding the issue and having it become a bigger deal later. And obviously you can't lie about it, and you don't want to look like you're hiding it.

Edited December 4, 2006 by riblet

[prpplague 0]

We have a very good reason for overstaying, that reason is: my wife was pregnant at the time, and wanted to go back home to have the child, we had to wait to get me a passport, and once that was completed, she had over stayed the 180 days by two weeks. At the airport she said she had lost her green slip (boarding pass you get attached to your passport when you enter the country).

an overstay is an overstay, doesn't matter the reason. you will most likely still qualify for a I-601 waiver which will allow you to "overide" the 3 year ban (possibly 10 now)

She had honestly lost it!

The airline worker said (when we left) to that "the green slip is for the INS to know when you left the country, since you dont have it anymore, you have to report the INS yourself when you left"

We ofcourse, never reported.

there are procedures for handling a failure to report your departure. items such as entry stamps in your passport, plan tickets receipts, or other documents stating when you left.

Do they know that my wife overstayed?

She has a new passport. A new last name due to marrying me.

Will they find out? And if they do, will she have to wait in her country for two more years?

We have already set up an appointment at the US embassy.

But we would rather not tell them about this overstaying, even though we did have a reason!

lying about it will only assure you a perminent ban. telling the truth about it will make things a little longer to process, but it should eventually get you a visa. my suggestion to you is to apply for the I-130 asap, and in the mean time correct the unreported departure before you have to go for your interview.

IANAL

[Yodrak 7]

TommyFinn1,

If you're saying that you are going to make deliberate misrepresentations on your I-130 petition then you should be prepared for some serious complications.

Yodrak

.....

Do they know that my wife overstayed?

She has a new passport. A new last name due to marrying me.

Will they find out? ......

Yeah thats not really the question the question is if there is a new passport and passport number with a different last name why would they look at a non valid passports history and the fact that when we left she had lost the green slip they give to turn in when she left so basically there is no real proof for the government that she left except the airlines check-in. SO the question is should we expect any complications with the process having a new passport or not.

Edited December 4, 2006 by Yodrak

[lucyrich 20]

The burden of proof is hers to prove that she left on time, or in your case, that she left before she accumulated a full year of overstay (a full year would trigger a ten year bar, while 180 days merely results in a three year bar). If there's a lack of evidence in immigration matters, you do NOT get the benefit of the doubt. They'll assume the worst until you prove otherwise. In the absence of an I-94, you might use airplane boarding passes, passport stamps, or something like that to establish the return date. If a full year hasn't yet elapsed since her legal status expired, and if you don't already have solid documentation of her exit date, it's probably wise for you to get some kind of documentation now that clearly shows she is currently outside of the US. That will at least help avoid the ten year bar. Maybe the child's birth certificate can be used to establish that she was outside of the US before she accumulated a full year of overstay?

Also, note that the bar starts on the date she verifiably left the US. The sooner you establish that she clearly is outside the US, the sooner the bar starts, and the sooner the bar ends.

The bar is automatic and not subject to any officer's discretion. It doesn't matter what the excuse was for the overstay, a 180 day overstay results in a three year bar, and a year overstay results in a ten year bar. The 180 days was your free "grace period".

The waiver is available if you can show that enforcement of the bar would result in extreme hardship to the US Citizen petitioner.

[substance 0]

My friend had a similar situation. I hate to say this but they mostlikely wont care about you situation why you had to overstay. Once INS (now homeland security) got you, they dont want to let you go easy. They are going to tell you why didnt you apply to INS and ask for an extention on your visa and stuff(thats what they said to my friend, and he was involved in a car accident, he was in hospital for 20 days while his visa expired and only overstayed 50 days) they said you should have send someone to notify us for your overstay.

well they have their reasons. Visa is given for a purpose , either travel or education or business and you simply state how long visa you want. any extra day you spend in the US, they want to know what you are doing.

It was only 50 days so they didnt give him any bar but he went back to his country and never be able to get a visa again. each time they gave him no reason but rejected the visa.

however you are planning on a marriage, so its a different story. you should be able to do this waiver thing. but i heard it takes some months.

maybe its better for you to go for CR1 through USA not embassy. i am not sure but if you do DCF and the embassy rejects you cant apeal, but when you go through one of the service centers and NVC then embassy, i think you have a right to apeal in 90 days after the rejection. but it will be much more than 4-5 weeks .

you need a family immigration lawyer i believe

[TommyFinn1 0]

My friend had a similar situation. I hate to say this but they mostlikely wont care about you situation why you had to overstay. Once INS (now homeland security) got you, they dont want to let you go easy. They are going to tell you why didnt you apply to INS and ask for an extention on your visa and stuff(thats what they said to my friend, and he was involved in a car accident, he was in hospital for 20 days while his visa expired and only overstayed 50 days) they said you should have send someone to notify us for your overstay.

well they have their reasons. Visa is given for a purpose , either travel or education or business and you simply state how long visa you want. any extra day you spend in the US, they want to know what you are doing.

It was only 50 days so they didnt give him any bar but he went back to his country and never be able to get a visa again. each time they gave him no reason but rejected the visa.

however you are planning on a marriage, so its a different story. you should be able to do this waiver thing. but i heard it takes some months.

maybe its better for you to go for CR1 through USA not embassy. i am not sure but if you do DCF and the embassy rejects you cant apeal, but when you go through one of the service centers and NVC then embassy, i think you have a right to apeal in 90 days after the rejection. but it will be much more than 4-5 weeks .

you need a family immigration lawyer i believe

we are married, we got married here in finland.

what do you mean by this waiver thing?

so if she overstayed the 180 days by those two weeks, it can actually be a ten year ban?

really dont know what to do now.. i cant just leave her here but i have to move back to the US since i cant get a work permit here..

[riblet 0]

Your wife falls into the following category:

Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(B)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal,

SO, when you file an I130 for her either in Finland if that is option is available to you, or in the U.S., you will also need to submit a I212 Waiver. Check out the guides:

http://www.visajourney.com/forums/index.php?showtopic=319

AND - as people have said, No, she wouldn't be subject to a 10 year ban, just 3 year - but if you file the waiver you'll probably be okay.

Edited December 5, 2006 by riblet

[kitkat1 5]

Your wife falls into the following category:

Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(B)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal,

SO, when you file an I130 for her either in Finland if that is option is available to you, or in the U.S., you will also need to submit a I212 Waiver. Check out the guides:

Overstay of 180 days but less than one year requires a 601 waiver. And as others have said, there is no way around this and the reason for the overstay does not matter. However, you do NOT need a 212 waiver - that is for deportation.

You will need to submit a hardship letter detailing and proving (with evidence and documentation) the hardship you, the USC, would face if her visa is ultimately denied and you are required to relocate permanently to her country. There are very good examples of hardship waivers and guidelines on immigrate2us.net. You should also consider doing a consultation with a qualified attorney well experienced in 601 waivers to guide you through the process. Laurel Scott on www.visacentral.net is highly recommended both here and on i2us.

[riblet 0]

Sorry, I guess I misread