What constitutes a visa overstay? Would this affect the K-1?

[deadbird 2]

My fiance was in the US on a B2 visa that was valid from February 2, 1997 - February 2, 2002. He was only in the states from July 14, 1999- August 13, 2001 and all of this is clearly documented in his passport. (Actually, his departure is not marked in the passport but his arrival date in Egypt of August 15, 2001 is.)

What I'm worried about is that there are no dates in his passport that said he had to leave by a certain date besides the obvious expiration date and he said something like the tourist visa was only good for 6 months and that you had to file for an extension.

He said he filed for the extension 3 times--approved twice but on the third try he was told to leave the country. At that point he only had 3 weeks until high school graduation, so he stayed, but then he couldn't afford plane tickets right away so he stayed another 2 months.

None of this is documented on his passport or anywhere else that I can tell. Since he was here on a B2 (or is it B1? he was a minor at the time he arrived and still a minor when he left) where could he find documentation that gives specific dates for him to leave? We want to know if he violated his visa and how responsible he was for it considering he was 17 at the time and both his parents were here on B1 visas. Back then, his father took care of all their immigration paperwork, and we asked him and he didn't find anything wrong, so are we worrying for nothing?

[TimsDaisy 0]

the important date for determining overstay is the the date stamped on the I-94 which was in his passport witth departure date. If it was less than 180 days overstay, it's alright. More i think might require a waiver.

but if it was less, it doesn't affect the k1. they are determined on different bases.

[eric_and_teresa 10]

Exactly! Every time you enter the States you fill an I-94 , the immigration officer stamps the passport with the date of your entry, and stamps the I-94 with the date you're supoused to leave the U.S. and then he gives you a small white paper that he detaches from the I-94. There's no way you'll be able to find the I-94 nor the date anywhere, because every time you leave the U.S. you give that small white paper to the airline staff at the gate of departure, so your departure can be registered.

There are certain time bars (that wont allow his entry to the U.S. for 3-10 years) this will only affect you guys if his overstay was longer than 6 months (180 days). It is also important to know when did this happen? This time bars only affect people that overstayed after April 1997.

[deadbird 2]

Oh ok, I was looking for the I-94 but of course didn't find it, so that's why I was concerned. Thank you both so much! I feel a bit better.

He was told that his extension was denied sometime in May 2001 (mid month), and he left August 13, so at most it was about 90 days and definitely not more than 180.

[TimsDaisy 0]

Oh ok, I was looking for the I-94 but of course didn't find it, so that's why I was concerned. Thank you both so much! I feel a bit better.

He was told that his extension was denied sometime in May 2001 (mid month), and he left August 13, so at most it was about 90 days and definitely not more than 180.

He should be fine. The I-194 should've been affixed to his passport. I wouldn't recommend ripping it out of there either.

Just make sure that throughout the process, when asked, he discloses the vist and the honest timelines he was here. He probably won't need a waiver for the overstay. But he WILL need one if they think he's misrepresenting (aka: lying or fudging) details.

[meauxna 15]

Oh ok, I was looking for the I-94 but of course didn't find it, so that's why I was concerned. Thank you both so much! I feel a bit better.

He was told that his extension was denied sometime in May 2001 (mid month), and he left August 13, so at most it was about 90 days and definitely not more than 180.

Except that if his extension was denied, he was supposed to have been gone since the original date on his I-94 (ore his previous extension)--does he have any of these extension letters or correspondance from that time? It's very unusual to get an extension granted twice back to back.. that means he was legally allowed in for 3 x 6 months. He must have had a good reason.

Suggest you follow up on the last bit; there is a potential for more overstay than you state here.

[deadbird 2]

Oh ok, I was looking for the I-94 but of course didn't find it, so that's why I was concerned. Thank you both so much! I feel a bit better.

He was told that his extension was denied sometime in May 2001 (mid month), and he left August 13, so at most it was about 90 days and definitely not more than 180.

Except that if his extension was denied, he was supposed to have been gone since the original date on his I-94 (ore his previous extension)--does he have any of these extension letters or correspondance from that time? It's very unusual to get an extension granted twice back to back.. that means he was legally allowed in for 3 x 6 months. He must have had a good reason.

Suggest you follow up on the last bit; there is a potential for more overstay than you state here.

Oh...ok. I'm trying to figure out why the I-94 wasn't in his passport, I went through it with a fine tooth comb while I was in Egypt and have photocopies of his old visa (I should have taken a copy of the whole passport). He was going to high school here (for grades 11 & 12) and graduated which is probably why he got the extensions granted. He doesn't have any of this paperwork.

How does all this work with minors? Will he be held accountable even though he was 17? If there was an overstay, I read somewhere that he would have to stay out of the US for 3 years unless he was deported and then he would have to stay out for 10 (right?) He hasn't been in the states at all for the past 5 1/2 years, so.....

help? We have lost a lot of sleep and energy over this.

And since he was a high school student, did he violate his visa because he was here on a B2? I know he had a guardianship here and I have photocopies of all that paperwork as well. It's like I have photocopies of everything except the most important thing.

[meauxna 15]

Oh...ok. I'm trying to figure out why the I-94 wasn't in his passport, I went through it with a fine tooth comb while I was in Egypt and have photocopies of his old visa (I should have taken a copy of the whole passport). He was going to high school here (for grades 11 & 12) and graduated which is probably why he got the extensions granted. He doesn't have any of this paperwork.

How does all this work with minors? Will he be held accountable even though he was 17? If there was an overstay, I read somewhere that he would have to stay out of the US for 3 years unless he was deported and then he would have to stay out for 10 (right?) He hasn't been in the states at all for the past 5 1/2 years, so.....

Ahh, the plot thickens.

Minors under 18 *are* a different story.

You are sure it was a B visa and not an F?

Yes, the time 'out' works in his favor.

Don't know what about studying on the B.. it's a bit of a grey area I think. Maybe when you haev a history written out in a linear format, and have all the documents, a consultation with an immigration attorney would help you rest easier.

[deadbird 2]

Ahh, the plot thickens.

Minors under 18 *are* a different story.

You are sure it was a B visa and not an F?

Yes, the time 'out' works in his favor.

Don't know what about studying on the B.. it's a bit of a grey area I think. Maybe when you haev a history written out in a linear format, and have all the documents, a consultation with an immigration attorney would help you rest easier.

Yeah, it's a B. It says "Visa Type: R Class: B1/B2"

What's the deal with minors? Too bad we couldn't have gotten married while he was here (LOL)... would have saved a lot of time

The immigration stamp that he got when he arrived in New York doesn't have a date written on the "Admitted until" part. Nothing. It's like they just stamped it and let him go.

[eric_and_teresa 10]

Oh...ok. I'm trying to figure out why the I-94 wasn't in his passport, I went through it with a fine tooth comb while I was in Egypt and have photocopies of his old visa (I should have taken a copy of the whole passport).

The I-94 wont be in his passport anymore, it was attached to his passport while he was in the US, BUT I'm more than sure that he gave it back at the exit gate with the airline staff when he flew back to Egypt. The I-94 is stapled to the passport, but you are supoused to give it back when you depart from the U.S., you're not supoused to keep it, I imagine the airline staff gives all the I-94 they recover to an immigration officer and that's how they register that you left before the date that it was stamp on it.

I'm not sure how can you find out those dates it seems a bit difficult... maybe you should apply for the K-1 and in case they find something you guys can prove that he didn't overstay longer than 3 months.

Good luck

[deadbird 2]

Oh...ok. I'm trying to figure out why the I-94 wasn't in his passport, I went through it with a fine tooth comb while I was in Egypt and have photocopies of his old visa (I should have taken a copy of the whole passport).

The I-94 wont be in his passport anymore, it was attached to his passport while he was in the US, BUT I'm more than sure that he gave it back at the exit gate with the airline staff when he flew back to Egypt. The I-94 is stapled to the passport, but you are supoused to give it back when you depart from the U.S., you're not supoused to keep it, I imagine the airline staff gives all the I-94 they recover to an immigration officer and that's how they register that you left before the date that it was stamp on it.

I'm not sure how can you find out those dates it seems a bit difficult... maybe you should apply for the K-1 and in case they find something you guys can prove that he didn't overstay longer than 3 months.

Good luck

Thanks, we're definitely going to need it. I think all we can do right now is hope for the best, right now actually we're just hoping for no RFEs and a speedy NOA2 lol, and then we're hoping that Cairo likes us. Our backup plan if we got denied was for me to just join him in Egypt and get married, but right now the Embassy in Cairo isn't allowing Americans to marry in Egypt for some twisted legal reasons involving the US government and Egyptian law...soooo our plan B just went up a creek.

[kitkat1 5]

Ahh, the plot thickens.

Minors under 18 *are* a different story.

You are sure it was a B visa and not an F?

Yes, the time 'out' works in his favor.

Don't know what about studying on the B.. it's a bit of a grey area I think. Maybe when you haev a history written out in a linear format, and have all the documents, a consultation with an immigration attorney would help you rest easier.

Yeah, it's a B. It says "Visa Type: R Class: B1/B2"

What's the deal with minors?

He shouldn't have a problem with illegal presence, but as Mo said, consult with an attorney since he went to school on a tourist visa, not a student visa.

http://travel.state.gov/visa/frvi/ineligib...ities_1364.html

(B ALIENS UNLAWFULLY PRESENT.-

(i) In general.-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, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(iii) Exceptions.-

(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (I).

[deadbird 2]

He shouldn't have a problem with illegal presence, but as Mo said, consult with an attorney since he went to school on a tourist visa, not a student visa.

Thank you sooo much! Now I'm not worried that he overstayed at all. Looks like his parents did, or at the very least, his mother (I know his father traveled back and forth to Egypt & the US but his mother didn't).

Is there anything an attorney could do at this point in the game considering we already filed for the K-1? My main reason for starting this thread was to see if we had to prepare ourselves for extra waiting time for a waiver for a visa overstay. If an overstay didn't affect a minor, would misrepresentation?