Petition parents that overstayed their visa

[Lil bear 4,348]

49 minutes ago, Luckycuds said:

Hopefully someone can answer this as it may relate... are overstays forgiven for parents of US citizens? 

Yes .. as long as they entered legally 

Edited March 24, 2020 by Lil bear

[nelmagriffin 154]

Greetings!

Please read this article:

Reference: https://www.alllaw.com/articles/nolo/us-immigration/consequences-of-overstaying-on-temporary-visa.html

Consequences of Overstaying on a Temporary U.S. Visa

Staying past the expected departure date under the terms of your U.S. visa can carry serious consequences.

By Ilona Bray, J.D.

 

Staying past the expected departure date under the terms of your U.S. visa can carry serious consequences. For example, your visa will be automatically voided, and you won't be able to apply for a new visa at any consulate outside of your home country. In some cases, you may be barred from returning to the U.S. for a number of years, depending on how long you stayed and whether you fit into an exception or actually accrued "unlawful presence," which is a separate definition under the law. We'll look at this in more detail below.

How Long Did You Overstay?

First, let's be clear on when you were expected to leave. This would be the date shown on your Form I-94 Arrival/Departure Record. That's a different date from the expiration date of your visa, which is merely the last date upon which you could have used that document to enter the United States. So you'll need to count forward from the date on your I-94.

If you entered the U.S. as a student, your I-94 will likely say "D/S," for duration of status. That means your overstay begins when you stop studying or complying with the terms of your visa. However, for purposes of the time bars discussed in this article, the important issue is whether you actually accrued "unlawful presence," which students don't do unless an immigration official or judge has deemed them unlawfully present.

Did You Accrue Unlawful Presence in the U.S.?

It's easier to define what unlawful presence isn't than what it is. You won't accrue unlawful presence for purposes of the three- and ten-year time bars described below if and when you:

• were under the age of 18
• had a bona fide pending asylum application on file with USCIS
• were a beneficiary of the Family Unity program (for families of people who received green cards as farmworkers or under the amnesty program of the 1980s)
• had a pending application for either adjustment of status (a green card), an extension of status, or a change of status
• were a battered spouse or child who entered on a nonimmigrant visa and can show a connection between the abuse and the overstay
• were a victim of trafficking who can show that the trafficking was at least one central reason for your unlawful presence, or
• had received protection via Temporary Protected Status (TPS), Deferred Enforced Departure (DED), Deferred Action, or Withholding of Removal under the Convention Against Torture.

For anyone else who overstayed the permitted time on their visa, it's likely that their unlawful presence time was adding up and can be held against them. And for people subject to the permanent bar, also described below, USCIS contends that these exceptions do not apply (though you would want to talk to a lawyer about this, as it's the subject of ongoing argument).

Time Bars for Accruing Unlawful Presence in the U.S.

There are three levels of penalties for overstaying a U.S. visa and accruing unlawful presence, which can end with you being banned from the U.S. for a long period of time—or permanently.

• If you accrue unlawful presence of more than 180 continuous days but less than one year, but you leave before any official, formal removal procedures (deportation) are instituted against you, you will be barred from reentering the United States for a period of three years.
• If you accrue unlawful presence of more than 365 continuous days, then leave prior to any deportation or other formal procedures being instituted against you, you will be subsequently barred from reentering the United States for a period of ten years.
• If you accrue unlawful presence of more than one year total (in the aggregate, not necessarily continuous), or are ordered removed (deported) from the U.S., and subsequently attempt to enter without inspection (for example, attempt to sneak across the border), then you will be permanently barred from the U.S., with no waiver available except to VAWA self-petitioners. (After ten years, however, you can request special permission to apply for a U.S. visa or green card.)

It's important to note that the above consequences apply only if you depart the United States and attempt to return. In a few rare instances, people eligible for green cards can avoid the time bars by adjusting status within the U.S.—that is, by submitting all their paperwork to USCIS and attending an interview within the United States.

However, not everyone is eligible to adjust status. For example, people who entered the U.S. illegally (without a visa or other lawful admission) cannot adjust status. Such people would, despite being technically eligible for a green card, have to apply for it through an overseas U.S. consulate, at which time the time bars could be applied, unless they qualify for a waiver based on extreme hardship to a qualifying U.S. relative.

Fortunately, you can now apply for this waiver before departing the U.S., using Form I-601A. You'll need to show that no other grounds of inadmissibility apply to you and be able to prove extreme hardship to a U.S. citizen spouse or parent. If approved for this "provisional waiver" (also called the "stateside waiver") before leaving for the U.S. consulate, you'll have a fair degree of assurance that the consulate won't apply the time bars (though it's still free to make its own determination, or find you inadmissible on some other grounds).

Eligibility for Waiver of the Three- and Ten-Year Bars

The waiver is a possibility for intending immigrants who can demonstrate that if the waiver and visa are not granted, their U.S. citizen or lawful permanent resident spouse or parents would suffer extreme hardship.

But extreme hardship can be difficult to prove. It means more than the hardship that any family member would feel upon facing separation due to denial of a visa. Medical, financial, educational, and other factors are taken into account.

Getting Legal Help

If you have overstayed your permitted time on a visa, and wish to remain in the U.S. legally or return here in the future, or to apply for a waiver, you should definitely consult with a qualified immigration lawyer as soon as possible. Your lawyer can evaluate how much unlawful presence you have accrued and explain any possible options for dealing with your overstay.

[geowrian 22,338]

11 minutes ago, nelmagriffin said:

Greetings!

Please read this article:

Reference: https://www.alllaw.com/articles/nolo/us-immigration/consequences-of-overstaying-on-temporary-visa.html

All true, but not relevant to the OP's question. That covers the penalties upon exit, not eligibility to AOS (and not specifically any inapplicability as the IR of a USC). Edit: Well, once they become a USC. Nothing is possible until then.

Edited March 24, 2020 by geowrian

[Lil bear 4,348]

8 minutes ago, nelmagriffin said:

Greetings!

Please read this article:

Reference: https://www.alllaw.com/articles/nolo/us-immigration/consequences-of-overstaying-on-temporary-visa.html

Consequences of Overstaying on a Temporary U.S. Visa

Staying past the expected departure date under the terms of your U.S. visa can carry serious consequences.

By Ilona Bray, J.D.

 

Staying past the expected departure date under the terms of your U.S. visa can carry serious consequences. For example, your visa will be automatically voided, and you won't be able to apply for a new visa at any consulate outside of your home country. In some cases, you may be barred from returning to the U.S. for a number of years, depending on how long you stayed and whether you fit into an exception or actually accrued "unlawful presence," which is a separate definition under the law. We'll look at this in more detail below.

How Long Did You Overstay?

First, let's be clear on when you were expected to leave. This would be the date shown on your Form I-94 Arrival/Departure Record. That's a different date from the expiration date of your visa, which is merely the last date upon which you could have used that document to enter the United States. So you'll need to count forward from the date on your I-94.

If you entered the U.S. as a student, your I-94 will likely say "D/S," for duration of status. That means your overstay begins when you stop studying or complying with the terms of your visa. However, for purposes of the time bars discussed in this article, the important issue is whether you actually accrued "unlawful presence," which students don't do unless an immigration official or judge has deemed them unlawfully present.

Did You Accrue Unlawful Presence in the U.S.?

It's easier to define what unlawful presence isn't than what it is. You won't accrue unlawful presence for purposes of the three- and ten-year time bars described below if and when you:

• were under the age of 18
• had a bona fide pending asylum application on file with USCIS
• were a beneficiary of the Family Unity program (for families of people who received green cards as farmworkers or under the amnesty program of the 1980s)
• had a pending application for either adjustment of status (a green card), an extension of status, or a change of status
• were a battered spouse or child who entered on a nonimmigrant visa and can show a connection between the abuse and the overstay
• were a victim of trafficking who can show that the trafficking was at least one central reason for your unlawful presence, or
• had received protection via Temporary Protected Status (TPS), Deferred Enforced Departure (DED), Deferred Action, or Withholding of Removal under the Convention Against Torture.

For anyone else who overstayed the permitted time on their visa, it's likely that their unlawful presence time was adding up and can be held against them. And for people subject to the permanent bar, also described below, USCIS contends that these exceptions do not apply (though you would want to talk to a lawyer about this, as it's the subject of ongoing argument).

Time Bars for Accruing Unlawful Presence in the U.S.

There are three levels of penalties for overstaying a U.S. visa and accruing unlawful presence, which can end with you being banned from the U.S. for a long period of time—or permanently.

• If you accrue unlawful presence of more than 180 continuous days but less than one year, but you leave before any official, formal removal procedures (deportation) are instituted against you, you will be barred from reentering the United States for a period of three years.
• If you accrue unlawful presence of more than 365 continuous days, then leave prior to any deportation or other formal procedures being instituted against you, you will be subsequently barred from reentering the United States for a period of ten years.
• If you accrue unlawful presence of more than one year total (in the aggregate, not necessarily continuous), or are ordered removed (deported) from the U.S., and subsequently attempt to enter without inspection (for example, attempt to sneak across the border), then you will be permanently barred from the U.S., with no waiver available except to VAWA self-petitioners. (After ten years, however, you can request special permission to apply for a U.S. visa or green card.)

It's important to note that the above consequences apply only if you depart the United States and attempt to return. In a few rare instances, people eligible for green cards can avoid the time bars by adjusting status within the U.S.—that is, by submitting all their paperwork to USCIS and attending an interview within the United States.

However, not everyone is eligible to adjust status. For example, people who entered the U.S. illegally (without a visa or other lawful admission) cannot adjust status. Such people would, despite being technically eligible for a green card, have to apply for it through an overseas U.S. consulate, at which time the time bars could be applied, unless they qualify for a waiver based on extreme hardship to a qualifying U.S. relative.

Fortunately, you can now apply for this waiver before departing the U.S., using Form I-601A. You'll need to show that no other grounds of inadmissibility apply to you and be able to prove extreme hardship to a U.S. citizen spouse or parent. If approved for this "provisional waiver" (also called the "stateside waiver") before leaving for the U.S. consulate, you'll have a fair degree of assurance that the consulate won't apply the time bars (though it's still free to make its own determination, or find you inadmissible on some other grounds).

Eligibility for Waiver of the Three- and Ten-Year Bars

The waiver is a possibility for intending immigrants who can demonstrate that if the waiver and visa are not granted, their U.S. citizen or lawful permanent resident spouse or parents would suffer extreme hardship.

But extreme hardship can be difficult to prove. It means more than the hardship that any family member would feel upon facing separation due to denial of a visa. Medical, financial, educational, and other factors are taken into account.

Getting Legal Help

If you have overstayed your permitted time on a visa, and wish to remain in the U.S. legally or return here in the future, or to apply for a waiver, you should definitely consult with a qualified immigration lawyer as soon as possible. Your lawyer can evaluate how much unlawful presence you have accrued and explain any possible options for dealing with your overstay.

Just wondering what your point is from the article you posted ... 

[SusieQQQ 11,587]

@nelmagriffin.... Yes, there are immigration rules and laws, but many just end up not applying to immediate relatives of USCs as they get forgiven on adjustment. So marrying a USC, or hanging around indefinitely until either your also-illegal child becomes one or your USC anchor baby turns 21 and can sponsor you, are options people use. 

[nelmagriffin 154]

Greetings!

I guess I was assuming and mislead by the word " petitioning",  to me, it means that she is planning to petition her parents who overstayed for more than 10 years who went back home. This might trigger the bar for re entry. "Anyone that overstays a visa for a period of over 180 days and then departs the United States is subject to a bar. Once the foreign national departs the U.S., the bar is triggered." it is to tally different if for example if her parents as an immediate relative  are still in the USA may generally adjust status to permanent resident.

I guess I was just pointing out that one might consider the above and get the facts first prior to petitioning if the immediate relative are outside the USA. Just my take, if I understand it wrongly then I stand corrected.

 

[Ryan H 3,834]

~~~Derailing post removed.~~~

[nelmagriffin 154]

Greetings!

"It is to tally different if her parents as an immediate relative who are currently in the USA may generally adjust status to permanent resident by applying I-130 together with I-485." I wanted to add this as I am unable to edit the above.

 

Edited March 24, 2020 by nelmagriffin

[geowrian 22,338]

True, the OP did not explicitly say adjusting status or that they are still in the US. I think that was implied in what was stated ("They came here illegally but overstayed more than 10 years." -> never mentioned leaving), but it is possible they left the US already,

 

@OP

Are they within the US right now or did they already leave?

[lilygracexx 22]

13 minutes ago, geowrian said:

True, the OP did not explicitly say adjusting status or that they are still in the US. I think that was implied in what was stated ("They came here illegally but overstayed more than 10 years." -> never mentioned leaving), but it is possible they left the US already,

 

@OP

Are they within the US right now or did they already leave?

Yes you are correct it is implied. They never left. 

[geowrian 22,338]

5 minutes ago, lilygracexx said:

Yes you are correct it is implied. They never left. 

Thanks. Then yes, the bans apply only if they exit the US.