Consular Processing after i-140 approval

[maham8 7]

I got my I-140 approval last month. My husband and I are doing consular processing. My husband came to US in B1/B2 visa in 2012 and overstayed for a month. He filed for TPS in 2013 after a month of overstay and was approved. He is currently working in US. My question is since my husband has overstayed for 30 days, does it count as unlawful presence? Will it affect our consular processing?

[goblin 26]

Are you using the service of a lawyer for your EB-2 process? You should probably ask that question again. Generally I would say that YES any overstay can cause a ban at the consulate but since he has an approved TPS things might be different.

[MaryLu19 10]

7 hours ago, maham8 said:

I got my I-140 approval last month. My husband and I are doing consular processing. My husband came to US in B1/B2 visa in 2012 and overstayed for a month. He filed for TPS in 2013 after a month of overstay and was approved. He is currently working in US. My question is since my husband has overstayed for 30 days, does it count as unlawful presence? Will it affect our consular processing?

No an overstay of 30 days doesn't make him inadmissible because of unlawful presence. An overstay of over 180 days and less than a year  triggers the 3 year ban, and unlawful presence of more than a year triggers the 10 year ban. R u sure it was only 30 days?  Can you prove that it was only days? Also are you a USC? 

Edited July 26, 2017 by MaryLu19

[goblin 26]

2 minutes ago, MaryLu19 said:

No an overstay of 30 days doesn't make him inadmissible because of unlawful presence. An overstay of over 180 days and less than a year  triggers the 3 year ban, and unlawful presence of more than a year triggers the 10 year ban. R u sure it was only 30 days?  Can you prove that it was only days? Also are you a USC? 

EB-2 I-140 just got approved, so NO USC.

[MaryLu19 10]

5 minutes ago, goblin said:

5 minutes ago, goblin said:

EB-2 I-140 just got approved, so NO USC.

 

Oh my bad, I thought her husband had the I 140. Thx for catching that!

[goblin 26]

11 minutes ago, MaryLu19 said:

Oh my bad, I thought her husband had the I 140. Thx for catching that!

[maham8 7]

1 hour ago, goblin said:

Are you using the service of a lawyer for your EB-2 process? You should probably ask that question again. Generally I would say that YES any overstay can cause a ban at the consulate but since he has an approved TPS things might be different.

I filed EB2-NIW on my own. We are not consulting any lawyer yet. I read at many places that overstaying less than 180 days would not apply the 3 years bar. 

[maham8 7]

1 hour ago, MaryLu19 said:

No an overstay of 30 days doesn't make him inadmissible because of unlawful presence. An overstay of over 180 days and less than a year  triggers the 3 year ban, and unlawful presence of more than a year triggers the 10 year ban. R u sure it was only 30 days?  Can you prove that it was only days? Also are you a USC? 

Thanks for your response. Yes we can prove that the overstay is around 30-40 days but definitely less than 180 days.

Edited July 26, 2017 by maham8

[MaryLu19 10]

You can also file a FOIA , and you can get the whole immigration file and see exactly what is on your file. FOIA is free and take about 4-6 months.

Edited July 26, 2017 by MaryLu19

[goblin 26]

What country are you guys located now? At the end you can only honestly tell the officer what happened as they will see it in their system anyways. I would also think you get away with a little blue eye.

[xyz12345 260]

1 hour ago, maham8 said:

I filed EB2-NIW on my own. We are not consulting any lawyer yet. I read at many places that overstaying less than 180 days would not apply the 3 years bar. 

Speaking from personal experience, there was no bar if less than 180 days. This was in 2013 for an EB2-NIW. No questions about it during consular processing. The Application form for Immigrant Visa and Alien Registration (DS-230) was simpler then.

 

[goblin 26]

28 minutes ago, xyz12345 said:

Speaking from personal experience, there was no bar if less than 180 days. This was in 2013 for an EB2-NIW. No questions about it during consular processing. The Application form for Immigrant Visa and Alien Registration (DS-230) was simpler then.

 

It might trigger a question of WHY, but the approved TPS should speak in favor, if asked at all. Showing otherwise a good moral character and that civil and financial records are ok, should be more important.

[maham8 7]

2 minutes ago, goblin said:

It might trigger a question of WHY, but the approved TPS should speak in favor, if asked at all. Showing otherwise a good moral character and that civil and financial records are ok, should be more important.

My concern is will we be given a chance to explain and justify during our interview in the embassy. I hope everything goes well. 

[xyz12345 260]

7 minutes ago, goblin said:

It might trigger a question of WHY, but the approved TPS should speak in favor, if asked at all. Showing otherwise a good moral character and that civil and financial records are ok, should be more important.

Yup, for the new form (DS-260), they ask you to explain why you answered YES (e.g., overstays). No such thing back then.

Edited July 26, 2017 by xyz12345

[xyz12345 260]

8 minutes ago, maham8 said:

My concern is will we be given a chance to explain and justify during our interview in the embassy. I hope everything goes well. 

My personal opinion -- they'll probably be more interested if USCIS approved you correctly for NIW.