Does a childhood visa overstay affect the CR-1 / entry into the US?

[IntrusiveThief 2]

Hi, everyone. I went to school in the US as a child for a few years because of my father's job. I was on the H-4 visa issued to dependents of H1 visa holders. When my dad extended his H1-B, he assumed that my H-4 would be automatically extended. It wasn't and it turns out that 9 year old me was technically overstaying my visa for at least a year, maybe more, before my family returned to India. While exiting the US, we weren't asked about the overstay on my passport at all and no acknowledgement of it was ever made by anyone from the US government, or the airline. That was the only time I travelled to the US, one entry and one exit.  

Now my American wife and I are about to file the I-130 petition. And I'm wondering whether this overstay will affect it in any way? Will I be forced to declare it and justify it at some point? I'm hopeful that it is fine because
1) I was a minor at the time
2) It has been more than 10 years since I left the US 

Any guidance would be really appreciated, thanks. 

Edited January 2, 2023 by IntrusiveThief

[Timona 4,208]

Even if a ban was in place, it has expired. 

 

Are you in US or outside?

[IntrusiveThief 2]

1 minute ago, Timona said:

Even if a ban was in place, it has expired. 

 

Are you in US or outside?

Thanks, that was my understanding too. Although if they ask if I've ever overstayed at some point, on a form or at the interview, I think I will have to explain why. Hopefully that doesn't affect my chances. 

I'm outside the US, and have never visited again. 

[Timona 4,208]

Of course you have to mention the overstay.

[Rocio0010 5,580]

I think that overstays for minors are forgiven. 
But even if it was not, overstays are forgiven for spouses of USC. 
Of course, if asked, disclose it

[Chancy 6,242]

14 minutes ago, Rocio0010 said:

But even if it was not, overstays are forgiven for spouses of USC. 

 

This is a visa case, so OP will be dealing with DOS.  USCIS may forgive, but DOS does not.

 

[IntrusiveThief 2]

19 minutes ago, Chancy said:

 

This is a visa case, so OP will be dealing with DOS.  USCIS may forgive, but DOS does not.

 

Hi @Chancy or @TBoneTX, can you expand on that? At what stage does the Department Of State come into play? From what I know, the hoops I have to jump through are UCIS, NVC, the consulate for the interview and the immigration agent at the airport when I arrive? 

Everything I've found online says that overstay days may not even accrue for minors, and even if they did, I am comfortably past the 10 year ban on reentry. 

[Lil bear 4,259]

9 minutes ago, IntrusiveThief said:

Hi @Chancy or @TBoneTX, can you expand on that? At what stage does the Department Of State come into play? From what I know, the hoops I have to jump through are UCIS, NVC, the consulate for the interview and the immigration agent at the airport when I arrive? 

Everything I've found online says that overstay days may not even accrue for minors, and even if they did, I am comfortably past the 10 year ban on reentry. 
 

************

USCIS oversees the  adjustment of status applications .. the process used when the non US spouse is already in the US .. having entered legally.. if they have overstayed the time allowed for that entry, it is declared on the application but “forgiven” in that specific case. You are doing Consular processing which is overseen at the consulate  by DOS. Some different rules apply . 

[Chancy 6,242]

7 minutes ago, IntrusiveThief said:

Hi @Chancy or @TBoneTX, can you expand on that? At what stage does the Department Of State come into play? From what I know, the hoops I have to jump through are UCIS, NVC, the consulate for the interview and the immigration agent at the airport when I arrive? 

Everything I've found online says that overstay days may not even accrue for minors, and even if they did, I am comfortably past the 10 year ban on reentry. 

 

NVC and the consulate are part of DOS.  You will be required to declare the overstay on your DS-260 form when your case gets to the NVC/DOS stage.  The DS-260 form requires details on your last 5 US visits and requires you to declare if you EVER overstayed in the US, regardless of your age at the time.  Your overstay will likely not be an issue in your case, as you were a minor when it happened.  Just be honest about it on the DS-260 and if asked at your consulate interview.

 

[IntrusiveThief 2]

17 minutes ago, Lil bear said:

33 minutes ago, IntrusiveThief said:

USCIS oversees the  adjustment of status applications .. the process used when the non US spouse is already in the US .. having entered legally.. if they have overstayed the time allowed for that entry, it is declared on the application but “forgiven” in that specific case. You are doing Consular processing which is overseen at the consulate  by DOS. Some different rules apply . 

 

11 minutes ago, Chancy said:

 

NVC and the consulate are part of DOS.  You will be required to declare the overstay on your DS-260 form when your case gets to the NVC/DOS stage.  The DS-260 form requires details on your last 5 US visits and requires you to declare if you EVER overstayed in the US, regardless of your age at the time.  Your overstay will likely not be an issue in your case, as you were a minor when it happened.  Just be honest about it on the DS-260 and if asked at your consulate interview.

 

Thanks for the explanation guys, that makes it much more clear. Although this sounds like a situation where I should contact an immigration lawyer to get more certainty, I was hoping to avoid that. But I will do it, and update here. 

[Lil bear 4,259]

6 minutes ago, IntrusiveThief said:

 

Thanks for the explanation guys, that makes it much more clear. Although this sounds like a situation where I should contact an immigration lawyer to get more certainty, I was hoping to avoid that. But I will do it, and update here. 

Its up to you but there isn't really anything a lawyer can do here that you cant. 

[pushbrk 12,997]

5 hours ago, Timona said:

Of course you have to mention the overstay.

Not unless asked about it.  No such question I know of on any form.  What makes you say that?

 

[IntrusiveThief 2]

1 hour ago, pushbrk said:

Not unless asked about it.  No such question I know of on any form.  What makes you say that?

 

I figured because the DS-260 makes you fill out your entry and exit dates, along with the visa type/number, the overstay is kind of implicitly there? Do you think they might not even ask in my case?

Edited January 3, 2023 by IntrusiveThief

[pushbrk 12,997]

55 minutes ago, IntrusiveThief said:

I figured because the DS-260 makes you fill out your entry and exit dates, along with the visa type/number, the overstay is kind of implicitly there? Do you think they might not even ask in my case?

A question about an overstay would be during the interview.  They may or may not notice the previous overstay based on dates in the application but any penalty period is long past.

[iwannaplay54 985]

20 hours ago, IntrusiveThief said:

Hi @Chancy or @TBoneTX, can you expand on that? At what stage does the Department Of State come into play? From what I know, the hoops I have to jump through are UCIS, NVC, the consulate for the interview and the immigration agent at the airport when I arrive? 

Everything I've found online says that overstay days may not even accrue for minors, and even if they did, I am comfortably past the 10 year ban on reentry. 

If you had a ban it has expired.  Declare your overstay however immigrant visas are processed, not approved, by DOS and this will not effect you unless you have an active ban in place.  You will not even need a waiver.