Did anyone not have to file the I601 Waiver?

[MarieSara 0]

Hi Everyone, my husband overstayed in the USA for about 1 year and 2 months. He is currently back in Belgium and we filed the I130 in November. Is there a possibility that they won't ask for the waiver? The immigration lawyer we spoke to seemed not to be worried about the waiver and made it seem like it may not be necessary and/or required. Has anyone had this experience before? I'd love to hear everyone's thoughts.

[JFH 12,190]

When did he overstay? He will have a 10-year ban but if he left more than 10 years ago and hasn't been back since the ban is "served". 

[GVANESSA233 13]

Hmmm what type of lAwyer do you have this is very serious he should clarify this for you 

[geowrian 22,337]

The inadmissibility is dictated by law. Either it must be waived or served.

[juineh 4]

I don't know anything about the waiver that you mentioned, but I was told when I consulted with a lawyer about my own overstay (2 weeks overstay on the VWP) that being married to a US citizen acted as a waiver in and of itself - that an overstay is "excused" for immediate relatives of US citizens once the relative applies for immigration benefits. 

 

I'm not sure if this is correct at all, but that's what I've been advised.

[geowrian 22,337]

8 minutes ago, juineh said:

I don't know anything about the waiver that you mentioned, but I was told when I consulted with a lawyer about my own overstay (2 weeks overstay on the VWP) that being married to a US citizen acted as a waiver in and of itself - that an overstay is "excused" for immediate relatives of US citizens once the relative applies for immigration benefits. 

 

I'm not sure if this is correct at all, but that's what I've been advised.

An overstay of at least 1 day makes you permanent ineligible for the VWP, and any existing visa invalid.

An overstay less than 180 days has no ban associated with it.

 

An overstay of 180+ days has a 3 or 10 year bar associated with it (depending on how long the overstay was). This bar is assessed when you exit the country.

This is not a bar for adjusting status (how to get a green card within the US) as the immediate relative of a USC. The bar does still apply if you exit and apply for a new visa.

Edited January 8, 2019 by geowrian

[juineh 4]

Just now, geowrian said:

An overstay of at least 1 day makes you permanent ineligible for the VWP, and any existing visa invalid.

An overstay less than 180 days has no ban associated with it.

 

An overstay of 180+ days has a 3 or 10 year bar associated with it (depending on how long the overstay was). This bar is assessed when you exit the country.

This is not a bar for adjusting status within the US as the immediate relative of a USC. The bar does still apply if you exit and apply for a new visa.

Thank you for clarifying. 

[MarieSara 0]

Thank you everyone for your responses. I’m going to reach out to the lawyer and ask about the process more in depth because to me it seems it would require a waiver of Inadmissibility. 

[EM_Vandaveer 2,408]

20 hours ago, juineh said:

I don't know anything about the waiver that you mentioned, but I was told when I consulted with a lawyer about my own overstay (2 weeks overstay on the VWP) that being married to a US citizen acted as a waiver in and of itself - that an overstay is "excused" for immediate relatives of US citizens once the relative applies for immigration benefits. 

 

I'm not sure if this is correct at all, but that's what I've been advised.

Absolutely not. That's only true if doing in-country AOS (ban was never triggered because leaving the US triggers it). Your case, as you overstayed less than 180 days, there is no ban for that anyway, only loss of VWP privileges.

[EM_Vandaveer 2,408]

5 hours ago, MarieSara said:

Thank you everyone for your responses. I’m going to reach out to the lawyer and ask about the process more in depth because to me it seems it would require a waiver of Inadmissibility. 

Yes, you definitely need one unless it's been more than 10 years since he left. He incurred a 10-year ban, no question about it.