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Filed: Other Country: Philippines
Timeline
Posted

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.

Filed: Citizen (apr) Country: Australia
Timeline
Posted
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 ... 

Posted

@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. 

Filed: Other Country: Philippines
Timeline
Posted

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.

 

Filed: Lift. Cond. (apr) Country: China
Timeline
Posted

~~~Derailing post removed.~~~

Our journey:

Spoiler

September 2007: Met online via social networking site (MySpace); began exchanging messages.
March 26, 2009: We become a couple!
September 10, 2009: Arrived for first meeting in-person!
June 17, 2010: Arrived for second in-person meeting and start of travel together to other areas of China!
June 21, 2010: Engaged!!!
September 1, 2010: Switched course from K1 to CR-1
December 8, 2010: Wedding date set; it will be on February 18, 2011!
February 9, 2011: Depart for China
February 11, 2011: Registered for marriage in Wuhan, officially married!!!
February 18, 2011: Wedding ceremony in Shiyan!!!
April 22, 2011: Mailed I-130 to Chicago
April 28, 2011: Received NOA1 via text/email, file routed to CSC (priority date April 25th)
April 29, 2011: Updated
May 3, 2011: Received NOA1 hardcopy in mail
July 26, 2011: Received NOA2 via text/email!!!
July 30, 2011: Received NOA2 hardcopy in mail
August 8, 2011: NVC received file
September 1, 2011: NVC case number assigned
September 2, 2011: AOS invoice received, OPTIN email for EP sent
September 7, 2011: Paid AOS bill (payment portal showed PAID on September 9, 2011)
September 8, 2011: OPTIN email accepted, GZO number assigned
September 10, 2011: Emailed AOS package
September 12, 2011: IV bill invoiced
September 13, 2011: Paid IV bill (payment portal showed PAID on September 14, 2011)
September 14, 2011: Emailed IV package
October 3, 2011: Emailed checklist response (checklist generated due to typo on Form DS-230)
October 6, 2011: Case complete at NVC
November 10, 2011: Interview - APPROVED!!!
December 7, 2011: POE - Sea-Tac Airport

September 17, 2013: Mailed I-751 to CSC

September 23, 2013: Received NOA1 in mail (receipt date September 19th)

October 16, 2013: Biometrics Appointment

January 28, 2014: Production of new Green Card ordered

February 3, 2014: New Green Card received; done with USCIS until fall of 2023*

December 18, 2023:  Filed I-90 to renew Green Card

December 21, 2023:  Production of new Green Card ordered - will be seeing USCIS again every 10 years for renewal

 

Posted

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?

Timelines:

ROC:

Spoiler

7/27/20: Sent forms to Dallas lockbox, 7/30/20: Received by USCIS, 8/10 NOA1 electronic notification received, 8/1/ NOA1 hard copy received

AOS:

Spoiler

AOS (I-485 + I-131 + I-765):

9/25/17: sent forms to Chicago, 9/27/17: received by USCIS, 10/4/17: NOA1 electronic notification received, 10/10/17: NOA1 hard copy received. Social Security card being issued in married name (3rd attempt!)

10/14/17: Biometrics appointment notice received, 10/25/17: Biometrics

1/2/18: EAD + AP approved (no website update), 1/5/18: EAD + AP mailed, 1/8/18: EAD + AP approval notice hardcopies received, 1/10/18: EAD + AP received

9/5/18: Interview scheduled notice, 10/17/18: Interview

10/24/18: Green card produced notice, 10/25/18: Formal approval, 10/31/18: Green card received

K-1:

Spoiler

I-129F

12/1/16: sent, 12/14/16: NOA1 hard copy received, 3/10/17: RFE (IMB verification), 3/22/17: RFE response received

3/24/17: Approved! , 3/30/17: NOA2 hard copy received

 

NVC

4/6/2017: Received, 4/12/2017: Sent to Riyadh embassy, 4/16/2017: Case received at Riyadh embassy, 4/21/2017: Request case transfer to Manila, approved 4/24/2017

 

K-1

5/1/2017: Case received by Manila (1 week embassy transfer??? Lucky~)

7/13/2017: Interview: APPROVED!!!

7/19/2017: Visa in hand

8/15/2017: POE

 

Posted
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. 

12/18/2015: Got married to the love of my life (L)(L)(L)

07/26/2016 Mailed I-130,I-485 & I-765

07/27/2016 Delivered at Chicago Lock Box with signature confirmation

08/04/2016 Both checks are cashed

08/09/2016 Received NOA1 via text for I-130 & I-485

08/11/2016 Received NOA1 hard copy via mail for I-130 & I-485 (I-765 is rejected, forgot to sign)

08/12/2016 Mailed I-765

08/13/2016 Delivered at Chicago Lock Box

08/15/2016 Picked up at the Chicago Lock Box with signature confirmation

08/05/2016 Received NOA1 hard copy via mail for I-765

08/19/2016 Received Biometrics Appointment letter (2pm at Bellflower location)

08/24/2016 Successful early walk-in for Biometrics Appointment at Bellflower location.

09/09/2016 I-765 receipt number is working online

09/12/2016 I-130 receipt number still not working, I-485 worked for the first time and says "Ready to schedule for Interview

10/03/2016: I-485 is scheduled for interview on November 3, 2016

10/28/2016: EAD card being produced

11/03/2016: We had out interview in Los Angeles CA. Our IO said they don't normally approve on the spot anymore and she gave us a paper saying "your case is being held for interview". The IO also said she is new, therefore she need to talk to her supervisor. Additionally she showed us a pile of cases that is being held for review, so it looks like it will take a while to get an answer about our case.

11/07/2016: EAD card was mailed to me

11/09/2016: EAD card received. Applied for SSN, needs verification will take up to 4 weeks.

11/10/2016: went back to SSA office with my unexpired passport, got verified right away.

11/10/2016: SSN card received

12/28/2016: I-485 status updated to "New Card Being Produced",later in the day updated to "Case was approved"; I-130 status updated to "Case approved"

(1 month, 3 weeks & 4 days after the interview) & (5 months & 2 days after filing AOS)

1/03/2016: Receive I-797 approval letter for I-130 & I-485; status updated to "New Card Being Produced"

1/04/2016: Welcome letter received; status updated to "Card was Mailed"

1/06/2017: 2 year green card received :D

Posted
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.

Timelines:

ROC:

Spoiler

7/27/20: Sent forms to Dallas lockbox, 7/30/20: Received by USCIS, 8/10 NOA1 electronic notification received, 8/1/ NOA1 hard copy received

AOS:

Spoiler

AOS (I-485 + I-131 + I-765):

9/25/17: sent forms to Chicago, 9/27/17: received by USCIS, 10/4/17: NOA1 electronic notification received, 10/10/17: NOA1 hard copy received. Social Security card being issued in married name (3rd attempt!)

10/14/17: Biometrics appointment notice received, 10/25/17: Biometrics

1/2/18: EAD + AP approved (no website update), 1/5/18: EAD + AP mailed, 1/8/18: EAD + AP approval notice hardcopies received, 1/10/18: EAD + AP received

9/5/18: Interview scheduled notice, 10/17/18: Interview

10/24/18: Green card produced notice, 10/25/18: Formal approval, 10/31/18: Green card received

K-1:

Spoiler

I-129F

12/1/16: sent, 12/14/16: NOA1 hard copy received, 3/10/17: RFE (IMB verification), 3/22/17: RFE response received

3/24/17: Approved! , 3/30/17: NOA2 hard copy received

 

NVC

4/6/2017: Received, 4/12/2017: Sent to Riyadh embassy, 4/16/2017: Case received at Riyadh embassy, 4/21/2017: Request case transfer to Manila, approved 4/24/2017

 

K-1

5/1/2017: Case received by Manila (1 week embassy transfer??? Lucky~)

7/13/2017: Interview: APPROVED!!!

7/19/2017: Visa in hand

8/15/2017: POE

 

 
Didn't find the answer you were looking for? Ask our VJ Immigration Lawyers.

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