I-601 and overstay - any leniency for those who were waiting on forms?

[ws1889 19]

Hi Everyone,

 

I've detailed the dates for my case below. I'm curious if because I was waiting on the forms for the duration of the overstay, will the USCIS consider my overstay as being less than a year in a petition? This would make a big deal for us because obviously, the overstay penalty for a year or more is 10 years and less than a year is three years (which has been completed).

 

Another point to make, I was in possession of a student visa that expired in July, 2018, but I don't know what the status of it was. I believe my school may have cancelled it when I finished my classes in December (I graduated early).

 

Dec 14, 2016 --> Completed classes at university

January 14, 2017 --> returned to Hungary to visit a family member

Jan 27, 2017 --> arrived in US on tourist visa (returned with US husband (married '15)) - planned to sell possessions from college and return home. (all questions answered truthfully at border and issued visa waiver)

Approximately February, 2017 --> discovered I am pregnant

February 13, 2017 --> Submit I-130

April 26th, 2017 --> tourist visa expires

May 15, 2017 --> walk in university graduate and receive diploma

July 19th, 2017 --> I-130 approved

Approximately July, 2017 --> I-485 submitted

Approximately December, 2017 --> I-485 rejected (accidentally used an outdated form - I filled out the I-130 and the I-485 together and waited to send the I-485 (a mistake, I know)).

Approximately January, 2018 --> prepare to send out I-485

February, 2018 --> husband received job offer abroad - we decide to not send form and move abroad.

July 15, 2018 --> leave USA

Approximately July --> notified of 10-year travel ban.

 

Thank you for reading and providing any advice you may have!

[Boiler 46,003]

You are applying for an immigrant visa?

 

This will be determined by the CO

 

Who notified you of the ban?

[ws1889 19]

23 minutes ago, Boiler said:

You are applying for an immigrant visa?

 

This will be determined by the CO

 

Who notified you of the ban?

Hi, yes we are currently awaiting an embassy appointment for an IR 1 visa.

 

We received an email a day or two after leaving the, but I am not sure from whom. It basically said something about the inadmissibility for ten years.

[Boiler 46,003]

I would imagine the notification was automated and related to your VWP entry.

[ws1889 19]

6 minutes ago, Boiler said:

I would imagine the notification was automated and related to your VWP entry.

Yes, it was definitely automated - but why do you mention 'automated'?

[Boiler 46,003]

The system logged your delayed departure.

[ws1889 19]

1 minute ago, Boiler said:

The system logged your delayed departure.

Ah - right - so I assume what the automated system says is what their records reflect. I wonder if the CO would have any ability to read into our situation and make room for some leniency. Doubtful... right?

[Boiler 46,003]

Read what into your situation? You either are subject to a ban or are not.

[ws1889 19]

2 minutes ago, Boiler said:

Read what into your situation? You either are subject to a ban or are not.

Well yes - but I'm more referring to the duration of the ban and if days while forms were under process should fairly be counted into the total days overstayed. I'm preparing for the worst, of course, but I thought it wouldn't hurt to ask here.

[Boiler 46,003]

You are hoping an incorrectly filed I 485 will bring you back inside 12 months overstay?

[saksnoot 31]

Not a lawyer myself, but I think you’ll need a waiver and/or an attorney.

 

The key to me here is actually that you didn’t file I-485 before your overstay on your permission to be in the US. A pending I-130 doesn’t give you any right to stay in the US but a pending I-485 does.

 

Thus, even with your I-130 filed, when your permission to stay in the US expired, you began your period of overstay. Even if you had filed the correct version of form I-485 afterward and the filing was accepted, your I-485 case would have likely been adjudicated and denied because you would have filed while overstaying and thus been found inadmissible and barred for 3 years at least, unless you filed I-601 with I-485. 

 

All this said, I think your situation is understandable. I’d get an attorney and see what can be done now to remedy the situation at your interview to maybe get approved. Don‘t be surprised if you’re denied a visa at your interview. You’ll likely need to file I-601, and it seems you have an understandable situation, so that should allow you to proceed with your greencard afterward. Looks like that takes about 6 months on average. Hopefully, if it comes to that, this is a delay you can live with. 

[African Zealot 1,456]

Honestly it appears pretty clear cut to me. The incorrect outdated I-485 is more of a red herring. You will need a waiver, my advice is to get an attorney with experience in that process for the waiver if you can afford it. 

 

There is a is discretionary legal procedure called  nunc pro tunc which is sometimes used to cure some problems like yours. I have seen/read it applied in immigration. In your case if you had filed a valid form after the previous was rejected, the receipt date could be recorded as the date of the first one in which case your overstay ban would reduce to 3 years instead of ten years. It is moot however because you never filed another form to correct the outdated form.

 

Quote

 

Nunc pro tunc - Wikipedia

 

Nunc pro tunc may apply when "a judgment is entered, or document enrolled, so as to have the same legal force and effect as if it had been entered or enrolled on an earlier day"

 

 

Good luck and I hope you get a favorable result.

 

 

Edited September 11, 2021 by African Zealot

[carmel34 3,654]

3 hours ago, ws1889 said:

I wonder if the CO would have any ability to read into our situation and make room for some leniency. Doubtful... right?

The immigration officer will determine, at the IR-1 visa interview, if there is a 10 year bar, and if so, she/he can decide to make a waiver available or not.  It is their discretion to allow for a waiver application.  If a waiver is available, you will asked to provide documentation showing hardship to the US citizen if your spousal visa is not approved.  Good luck!

[Pinkrlion 2,724]

I am confused on why there should be given a pass on an outdated form, when current forms are free online.  We understand that since you were leaving why waste the $1200.00 filing the paperwork, but that doesnt change the results.  

Edited September 11, 2021 by Pinkrlion

[Boiler 46,003]

31 minutes ago, Pinkrlion said:

I am confused on why there should be given a pass on an outdated form, when current forms are free online.  We understand that since you were leaving why waste the $1200.00 filing the paperwork, but that doesnt change the results.  

I assume they are looking for a way out of the ban, I forget the precise wording and was hoping HQRX would come along and paste it.