Could overstay delay the process of bringing my spouse.

[moet72 0]

hey guys,

I am a little confused about our situation and would appreciate all your help, my husband and i met at work in 1998 when he was here in the u.s on an h1 (work visa)...the company we worked for failed to apply for his renewal after the first 3 years were over, due to which he overstayed and applied for his canadian immigration because we were not sure about getting married at that point and due to that reason he moved to canada but we stayed in touch...we got married in jan 2007 in india and i filed for his i130 which is in the process of getting approved, last month he became a canadian citizen and can travel to the u.s under the visa waiver programme, our lawyer is suggesting him to come here on a visit and apply for the adjustment while in the u.s.

I am too confused and do not want to take the wrong step......I could either go via the i130 route which is to wait for the approval and the whole nvc process or i could ask my husband to come to new york and apply for his adjustment from here....any suggestions will be highly appreciated

[kitkat1 5]

hey guys,

I am a little confused about our situation and would appreciate all your help, my husband and i met at work in 1998 when he was here in the u.s on an h1 (work visa)...the company we worked for failed to apply for his renewal after the first 3 years were over, due to which he overstayed and applied for his canadian immigration because we were not sure about getting married at that point and due to that reason he moved to canada but we stayed in touch...we got married in jan 2007 in india and i filed for his i130 which is in the process of getting approved, last month he became a canadian citizen and can travel to the u.s under the visa waiver programme, our lawyer is suggesting him to come here on a visit and apply for the adjustment while in the u.s.

I am too confused and do not want to take the wrong step......I could either go via the i130 route which is to wait for the approval and the whole nvc process or i could ask my husband to come to new york and apply for his adjustment from here....any suggestions will be highly appreciated

How long did he overstay?

Visa overstay becomes an issue when the overstay was more than 180 days. This requires a waiver. Has your lawyer discussed this with you?

I also don't think it's legal (or ethical) for a lawyer to suggest that a spouse use the wrong type of visa to enter the US and AOS. If I were you, I would consult with several other lawyers before you commit to working with this one as he sounds a bit shady.

http://www.travel.state.gov/visa/frvi/inel...ities_1364.html

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.

[moet72 0]

hey guys,

I am a little confused about our situation and would appreciate all your help, my husband and i met at work in 1998 when he was here in the u.s on an h1 (work visa)...the company we worked for failed to apply for his renewal after the first 3 years were over, due to which he overstayed and applied for his canadian immigration because we were not sure about getting married at that point and due to that reason he moved to canada but we stayed in touch...we got married in jan 2007 in india and i filed for his i130 which is in the process of getting approved, last month he became a canadian citizen and can travel to the u.s under the visa waiver programme, our lawyer is suggesting him to come here on a visit and apply for the adjustment while in the u.s.

I am too confused and do not want to take the wrong step......I could either go via the i130 route which is to wait for the approval and the whole nvc process or i could ask my husband to come to new york and apply for his adjustment from here....any suggestions will be highly appreciated

How long did he overstay?

Visa overstay becomes an issue when the overstay was more than 180 days. This requires a waiver. Has your lawyer discussed this with you?

I also don't think it's legal (or ethical) for a lawyer to suggest that a spouse use the wrong type of visa to enter the US and AOS. If I were you, I would consult with several other lawyers before you commit to working with this one as he sounds a bit shady.

http://www.travel.state.gov/visa/frvi/inel...ities_1364.html

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.

Thanks, he overstayed for 1 1/2 years because he had to wait for his canadian immigration to go through.

[kitkat1 5]

Thanks, he overstayed for 1 1/2 years because he had to wait for his canadian immigration to go through.

It certainly appears that he will need a waiver. At the interview he will be denied his visa and you as the USC will have to submit a letter proving, with evidence, extreme hardship to you if his visa is ultimately denied. Canadian waiver processing takes 12-18 months currently.

Best to consult with an attorney experienced in waivers like Heather Poole or Laurel Scott to find out if there are any exceptions based on the fact that his company failed to apply for his renewal after the first 3 years were over. Also check the 601 forum on www.immigrate2us.net for hardship letter samples and read through attorney Laurel Scott's 601 guidance memo on her website.

[moet72 0]

Thanks, he overstayed for 1 1/2 years because he had to wait for his canadian immigration to go through.

It certainly appears that he will need a waiver. At the interview he will be denied his visa and you as the USC will have to submit a letter proving, with evidence, extreme hardship to you if his visa is ultimately denied. Canadian waiver processing takes 12-18 months currently.

Best to consult with an attorney experienced in waivers like Heather Poole or Laurel Scott to find out if there are any exceptions based on the fact that his company failed to apply for his renewal after the first 3 years were over. Also check the 601 forum on www.immigrate2us.net for hardship letter samples and read through attorney Laurel Scott's 601 guidance memo on her website.

thanks kitkat, so in other words it could take upto 1 1/2 years for him to get here!! is there a possibility that they might approve the waiver right away after the interview?? i am trying to find all i can because i might move to canada with him instead of waiting for this damn process....the reason our lawyer asked my husband to come as a tourist on the visa waiver progrmme was because he didn't want us to go through the pain of living aprt from each other.

[kitkat1 5]

thanks kitkat, so in other words it could take upto 1 1/2 years for him to get here!! is there a possibility that they might approve the waiver right away after the interview?? i am trying to find all i can because i might move to canada with him instead of waiting for this damn process....the reason our lawyer asked my husband to come as a tourist on the visa waiver progrmme was because he didn't want us to go through the pain of living aprt from each other.

Unless there is some exception based on the fact that the company failed to apply for his renewal, he will need a waiver and will need to wait out the waiver processing time. You can certainly move there temporarily during the process, but this could negatively impact your hardship arguements for the waiver letter, since you are required to prove why relocating to his country permanently would present extreme hardship to you.

No one wants to go through the pain of living apart from each other during this process. But that does not mean that it's legal or ethical for your lawyer to suggest your husband violates US law. In addition, you have the luck and luxury to be able to go there during the wait time. I would consult with another attorney and very seriously consider not working with the one you have. In fact, I would ask him why he thinks it's ok to advise you to do something illegal, for which is could very possibly be disbarred!

ETA: regarding disbarrment: "...two-year suspension for aiding and abetting aliens' entry into the United States and by advising clients to make misrepresentations for such entry. Such an act generally warrants disbarment"

Edited May 26, 2007 by kitkat1

[moet72 0]

thanks kitkat, so in other words it could take upto 1 1/2 years for him to get here!! is there a possibility that they might approve the waiver right away after the interview?? i am trying to find all i can because i might move to canada with him instead of waiting for this damn process....the reason our lawyer asked my husband to come as a tourist on the visa waiver progrmme was because he didn't want us to go through the pain of living aprt from each other.

Unless there is some exception based on the fact that the company failed to apply for his renewal, he will need a waiver and will need to wait out the waiver processing time. You can certainly move there temporarily during the process, but this could negatively impact your hardship arguements for the waiver letter, since you are required to prove why relocating to his country permanently would present extreme hardship to you.

No one wants to go through the pain of living apart from each other during this process. But that does not mean that it's legal or ethical for your lawyer to suggest your husband violates US law. In addition, you have the luck and luxury to be able to go there during the wait time. I would consult with another attorney and very seriously consider not working with the one you have. In fact, I would ask him why he thinks it's ok to advise you to do something illegal, for which is could very possibly be disbarred!

ETA: regarding disbarrment: "...two-year suspension for aiding and abetting aliens' entry into the United States and by advising clients to make misrepresentations for such entry. Such an act generally warrants disbarment"

thanks, the waiver time currently is 12 to 18 months as you mentioned.....you have been very helpful, take care