B2 Visa issued in 1983 Overstay?

[elpablito2016 0]

Hi,

My mom was issued a B2 visa in 1983. It clearly says on the visa that it is "Valid for MULTIPLE applications for entry until INDEFINITELY".

Under this visa My mom was permitted entry for multiple stays from 1983 through 1986. These stays were all of approximately 1 month per year. Then in 1989 she was permitted entry again using this same visa and stayed four years.

Would she be considered as having committed an overstay? She was never deported and voluntarily left the U.S.

Would she be banned from immigrating?

Thank you.

[aleful 1,905]

hi

she did overstay and got a 10 year ban, but as the ban is up, there won't be an issue to immigrate

[Hypnos 6,578]

A visa is just permission to apply for entry. The duration of her legal presence would have been on an I-94 which she would have been issued with at PoE on each entry. She undoubtedly overstayed on her final entry, but if she departed in 1993 then the ten year bar for overstaying would have expired in 2003, so she is no longer barred.

The prior overstay should not give her any issues with regards to immigrating now.

Edited August 27, 2016 by Hypnos

[elpablito2016 0]

So one of the questions on the DS-260 is...

"Have you ever been unlawfully present in the U.S. for more than 180 days (but no more than one year) and have voluntarily departed the U.S. within the last three years?"

I think in the case of my mom, she would answer "no" to this question because even though she did stay for more than 180 days, her voluntary departure was more than 20 years ago.

Another question on the DS-260 is....

"Have you ever been unlawfully present in the U.S. for more than one year or more than one year in the aggregate at any time during the last 10 years?"

This one seems a bit tricky to interpret. I've tried break this question down into two parts to try to understand it.

Which of the following is the correct interpretation of this question?

1. "Have you ever been unlawfully present in the U.S. for more than one year?"

2. "Have you ever been unlawfully present in the U.S. for more than one year in the aggregate at any time during the last 10 years?"

OR

1. "Have you ever been unlawfully present in the U.S. for more than one year at any time during the last 10 years?"

2. "Have you ever been unlawfully present in the U.S. for more than one year in the aggregate at any time during the last 10 years?"

Thank you.

[aleful 1,905]

hi

it doesn't matter how long ago, the answer is yes, she has been living here illegally

she must answer truthfully

you are overthinking, the answer is no, they want to know if she currently has a 10 year ban to deny the visa

she hasn't been back since the first overstay, so the ban is up, and the answer is no, because she hasn't been staying illegally in the country in these last 10 years

[elpablito2016 0]

hi

it doesn't matter how long ago, the answer is yes, she has been living here illegally

she must answer truthfully

you are overthinking, the answer is no, they want to know if she currently has a 10 year ban to deny the visa

she hasn't been back since the first overstay, so the ban is up, and the answer is no, because she hasn't been staying illegally in the country in these last 10 years

Hi aleful,

I agree that she was in the U.S. illegally. The previous responses from you and Hypnos cleared that up for me. Thank you!

There is no doubt that she must answer the questions truthfully, that was never in question, but in order to do so, one must correctly understand the question that is asked.

In this first question I think the key word is "and"...

"Have you ever been unlawfully present in the U.S. for more than 180 days (but no more than one year) and have voluntarily departed the U.S. within the last three years?"

The "and" implies that both conditions must be true in order to answer "yes" to the question. So in my Mom's case, I believe she would answer "no" to this question because even though she did stay for more than 180 days, her departure was not within the last three years. It was over 20 years ago.

In the second question, I believe the key word is "or"...

"Have you ever been unlawfully present in the U.S. for more than one year or more than one year in the aggregate at any time during the last 10 years?"

Does the "at any time during the last 10 years" apply to both sides of the "or"?

So the correct answer depends on what is the correct interpretation of the question. My feeling is that the correct interpretation is A1 and A2 below. Not B1 and B2 below...

A1. "Have you ever been unlawfully present in the U.S. for more than one year? (For my Mom, this would be "yes")

A2. "Have you ever been unlawfully present in the U.S. for more than one year in the aggregate at any time during the last 10 years?" (For my Mom, this would be "no")

(Since the answer to A1 would be "yes", then because of the "or" the overall answer to this second question would be "yes".)

OR

B1. "Have you ever been unlawfully present in the U.S. for more than one year at any time during the last 10 years?" (For my Mom, this would be "no")

B2. "Have you ever been unlawfully present in the U.S. for more than one year in the aggregate at any time during the last 10 years?" (For my Mom, this would "no").

(Since the answer to B1 would be "no", and since B2 would be "no", then overall answer to this second question would be "no". Again, I don't believe B1 and B2 are a correct interpretation of the question.)

I agree that I am over thinking about this. but if you asked 100 people what these questions are asking you would get a lot of different answers. (even if they worked for the Department of State). Anyone, who isn't taking the time to try to learn the correct interpretation of these questions is asking for trouble.

[Hypnos 6,578]

Those questions could be phrased better.

I would answer "No" to both questions. They are fishing to find out whether the INA 212 overstay bars apply to this situation, and for her even if they did (which I agree they did at one point), they have long since expired.