Tourist Visa for my Wife

[AlexSouthAmerica 1]

Hello everyone,

 

I have a fairly complicated question that I have had difficulty in receiving answers from numerous immigration lawyers, USCIS, and CBP.

 

I am married to a South American woman and she has overstayed a tourist visa in order to be with me. We married in the US and got the marriage recognized in her home country as well. We were going to adjust status, however, since she wants to be close to her family we no longer want to immigrate here. So here is the issue, at this point if we leave she will receive a three year ban. I would like to know how severe the ban is since she is married to me (US citizen, born and raised). I have become aware of waivers for the 3 and 10 year bans, but I have heard mixed information.

 

Since I find it fairly complicated to put all of my questions in a single one, I will try to reiterate. If we leave, is there a way she could come back with me on a non-immigrant visa during or after the three year ban if we return to visit or attend a funeral?

[payxibka 10,047]

The severity of the ban is the same whether you are married to a USC or not.  The difference is the availability of a waiver, as a courtesy to a USC.  However, waivers can be a long drawn out process (many times more than a year to complete) so there is no quick resolution to the ban status particularly if you need to make an unscheduled trip during that period of time.  

 

Depending on your timing requirements, you may wish to complete the status adjustment (at which time her overstay days will be forgiven) and then relocate, at which time she would simply relinquish her residency status and she would not be subjected to a ban and normal visa qualifications would be required for future visits to the USA

 

 

[Boiler 45,743]

22 minutes ago, AlexSouthAmerica said:

Hello everyone,

 

I have a fairly complicated question that I have had difficulty in receiving answers from numerous immigration lawyers, USCIS, and CBP.

 

I am married to a South American woman and she has overstayed a tourist visa in order to be with me. We married in the US and got the marriage recognized in her home country as well. We were going to adjust status, however, since she wants to be close to her family we no longer want to immigrate here. So here is the issue, at this point if we leave she will receive a three year ban. I would like to know how severe the ban is since she is married to me (US citizen, born and raised). I have become aware of waivers for the 3 and 10 year bans, but I have heard mixed information.

 

Since I find it fairly complicated to put all of my questions in a single one, I will try to reiterate. If we leave, is there a way she could come back with me on a non-immigrant visa during or after the three year ban if we return to visit or attend a funeral?

There is only one waiver, D3, and basically the Consulate would need to be happy to otherwise issue here a visa but for the ban. The CO would then recommend a waiver, not something you apply for.

 

Takes a bout 6 months or so Most of those recommended are approved.

[AlexSouthAmerica 1]

17 minutes ago, payxibka said:

The severity of the ban is the same whether you are married to a USC or not.  The difference is the availability of a waiver, as a courtesy to a USC.  However, waivers can be a long drawn out process (many times more than a year to complete) so there is no quick resolution to the ban status particularly if you need to make an unscheduled trip during that period of time.  

 

Depending on your timing requirements, you may wish to complete the status adjustment (at which time her overstay days will be forgiven) and then relocate, at which time she would simply relinquish her residency status and she would not be subjected to a ban and normal visa qualifications would be required for future visits to the USA

 

 

Interesting, I was told that if we adjust status and then leave that by abandoning her status the bans would be reinstated. Is this information you wrote available somewhere on the USCIS website?

[payxibka 10,047]

That would be true if you abandoned the status adjustment before it was completed

[Crazy Cat 41,985]

2 minutes ago, AlexSouthAmerica said:

Interesting, I was told that if we adjust status and then leave that by abandoning her status the bans would be reinstated. Is this information you wrote available somewhere on the USCIS website?

That sounds correct, but she could leave with Advance Parole.

[AlexSouthAmerica 1]

1 minute ago, payxibka said:

That would be true if you abandoned the status adjustment before it was completed

 

So if we get the green card and then abandon it, there would be no ban for her?

 

I am just shocked because we had multiple attorneys tell us that if she leaves before getting citizenship, the bans will be reinstated.

[Crazy Cat 41,985]

2 minutes ago, payxibka said:

That would be true if you abandoned the status adjustment before it was completed

Do you mean if she left before approved AP?

[AlexSouthAmerica 1]

2 minutes ago, missileman said:

That sounds correct, but she could leave with Advance Parole.

 

Right, but isn't the advance parole is for people only taking a trip to another country? We plan to move to her home country, but would like the option to return for visits in the future if necessary.

Edited January 1, 2018 by AlexSouthAmerica

[belinda63 3,041]

Once she receives her green card her overstay is forgiven. If she later decides to relinquish her green card her overstay is not an issue as it was forgiven when she got her green card.

[payxibka 10,047]

8 minutes ago, AlexSouthAmerica said:

 

So if we get the green card and then abandon it, there would be no ban for her?

 

I am just shocked because we had multiple attorneys tell us that if she leaves before getting citizenship, the bans will be reinstated.

A detailed review of the FAM is in order here to see if forgiveness is truly forgiveness or not

[Coco8 1,042]

4 minutes ago, AlexSouthAmerica said:

 

I am just shocked because we had multiple attorneys tell us that if she leaves before getting citizenship, the bans will be reinstated.

 

I think the issue is that if she leaves before citizenship, they are also assuming that she would be abandoning the green card because she would not be a resident of the US anymore.

 

The ban is implemented by Department of State when she applies for a visa. The ban is not put into practice while she is in the US for AOS because AOS is done by USCIS. Whenever the State Department gets involved through a consulate for a visa (a tourist visa or a fiance/spousal visa), they will find out if she has violated any previous visas and whether there is a ban in effect according to how many days she was in the US without a valid visa or if she worked in the US when she did not have a permit, etc.

 

I think that before moving abroad without any work, etc., you should plan very carefully. If you leave, she won't be able to come back. She would need to apply for a spousal visa that takes 14 months and if she has a ban, a waiver can add at least 6 months. You are looking at almost 2 years for her to move back to the US. If you cannot get a job or don't adapt to living there, then you would either be apart for long or miserable for the time she is waiting for the visa. 

 

Getting a job in Latin America is hard. Unless you have skills that make you desirable and you know Spanish, it can be hard; there is a lot of networking and the pay is low. I know because I am from South America.

 

 

 

 

[Coco8 1,042]

3 minutes ago, belinda63 said:

Once she receives her green card her overstay is forgiven. If she later decides to relinquish her green card her overstay is not an issue as it was forgiven when she got her green card.

The overstay stops accumulating once AOS is filed. I am not sure of the "overstay" days between the time it started and AOS is filed: Are those forgiven if someone turns in their green card? I really do not know.  I remember a case a few months ago of someone who had a ban reinstated after this person went back to their country ... it was an odd case but what I remember is that consulates have a lot of power and they can get into technicalities to refuse visas or request waiver.

[AlexSouthAmerica 1]

10 minutes ago, Coco8 said:

 

I think the issue is that if she leaves before citizenship, they are also assuming that she would be abandoning the green card because she would not be a resident of the US anymore.

 

The ban is implemented by Department of State when she applies for a visa. The ban is not put into practice while she is in the US for AOS because AOS is done by USCIS. Whenever the State Department gets involved through a consulate for a visa (a tourist visa or a fiance/spousal visa), they will find out if she has violated any previous visas and whether there is a ban in effect according to how many days she was in the US without a valid visa or if she worked in the US when she did not have a permit, etc.

 

I think that before moving abroad without any work, etc., you should plan very carefully. If you leave, she won't be able to come back. She would need to apply for a spousal visa that takes 14 months and if she has a ban, a waiver can add at least 6 months. You are looking at almost 2 years for her to move back to the US. If you cannot get a job or don't adapt to living there, then you would either be apart for long or miserable for the time she is waiting for the visa. 

 

Getting a job in Latin America is hard. Unless you have skills that make you desirable and you know Spanish, it can be hard; there is a lot of networking and the pay is low. I know because I am from South America.

 

 

 

 

Yes, the job issue is pretty scary. I have a job that allows me to work down there, however, I definitely worry about the situation if something happens and I lose that job while we live down there.

[AlexSouthAmerica 1]

12 minutes ago, Coco8 said:

The overstay stops accumulating once AOS is filed. I am not sure of the "overstay" days between the time it started and AOS is filed: Are those forgiven if someone turns in their green card? I really do not know.  I remember a case a few months ago of someone who had a ban reinstated after this person went back to their country ... it was an odd case but what I remember is that consulates have a lot of power and they can get into technicalities to refuse visas or request waiver.

Yes, that would be nice to find out. I have received mixed answers in regards to the green card issue. If we can get the green card and then abandon it to avoid the overstay punishment, that would be great. But so far what I have been told is that this will not happen and that if we get the green card and then abandon it, the ban will be back in place as though we never adjusted status.

Edited January 1, 2018 by AlexSouthAmerica