Parents Refused an Immigrant Visa due to Overstay (3-Year Bar)

[JayJay2o 1]

Good evening,

 

I would like to ask this question here and hope to find an answer because I do not have the funds to hire a lawyer. 

 

I am a naturalized US Citizen from Vietnamese descent and I applied for my parents' I-130 petition which was approved in October 2022; but ultimately, they were denied a visa at the consulate level interview in January 2023 due to an overstay of over 180 days but less than 1 year. They overstayed because at the time during covid we could not afford the tickets to fly them back to Vietnam before overstaying their visa (the country took advantage of the situation for the most desperate ones and the cheapest one-way flight we could find at the time was $15,000 per person!!!). They have a 3-year bar in which I assume it ends in September 2025 (their tourist visa expired in February 2021 they left the US in September 2022). The CO said they are eligible for I-601 waiver. When I looked into the waiver at the time it would take about 34 months before they would look at the applications so I decided for my parents to wait out their 3-year bar because I did not want to wait out the I-601 processing time.

 

Now here are my questions:

1. After the 3-year bar is served, do I still need to file I-601 for them anyways (I do not think so based on my research, but I wanted to ask for a second opinion about this in case I am wrong)?

2. Since they were barred from entering the US due to overstay, does that mean the I-130 becomes void, and that I need to file new I-130 along with new DS260 for my parents?

3. If the I-130 is still valid, then I am assuming that I only need to file new DS260 for both of my parents?

 

Please advise.

 

Thank you very much and I am looking forward to future answers.

[nastra30 2,359]

1 hour ago, JayJay2o said:

1. After the 3-year bar is served, do I still need to file I-601 for them anyways (I do not think so based on my research, but I wanted to ask for a second opinion about this in case I am wrong)? - No

 

2. Since they were barred from entering the US due to overstay, does that mean the I-130 becomes void, and that I need to file new I-130 along with new DS260 for my parents? - No. I130 is not voided.

 

3. If the I-130 is still valid, then I am assuming that I only need to file new DS260 for both of my parents? - Yes.

What's current statuses on both USCIS website and CEAC?

[JayJay2o 1]

@nastra30 First of all I would like to say thank you very much for your response. 
 

To answer your question about the status of my parents’ case from the USCIS, it states that both of their I-130 petitions have been approved and forwarded to NVC for consular processing. No further updates after that. From the CEAC, it states that both DS260 immigrant visa was refused at interview (my parents both got a letter that simply states that they were refused a visa because they were subject to 3-year ban due to overstay of over 180 days but less than 1 year and that they may file for I-601 waiver to overcome the 3-year bar) no further information after that. 

[Boiler 46,001]

I can not see how it makes sense to file a waiver and reading between the lines I doubt there is a Qualifying Relative to do so anyway.

[nastra30 2,359]

3 hours ago, JayJay2o said:

@nastra30 First of all I would like to say thank you very much for your response. 
 

To answer your question about the status of my parents’ case from the USCIS, it states that both of their I-130 petitions have been approved and forwarded to NVC for consular processing. No further updates after that. From the CEAC, it states that both DS260 immigrant visa was refused at interview (my parents both got a letter that simply states that they were refused a visa because they were subject to 3-year ban due to overstay of over 180 days but less than 1 year and that they may file for I-601 waiver to overcome the 3-year bar) no further information after that. 

Ok. As Boiler pointed out above, you by not knowing back in 2023 saved yourself a lot of money by not filing the I-601 because your parents it seems won't have a qualifying relative for the waiver. Qualifying relative will be US based spouse or parents. They should continue to serve the ban till end of September and then they'll be in good position. Good luck.

[JayJay2o 1]

@Boiler @nastra30 thank you so much for all the replies. Yes I had no idea we weren’t going to be qualified for the I-601. 

 

On a side note, I do not know how to edit my post so I just want to point out that I have a correction: where it says February 2021 that was a typo it’s supposedly February 2022. 
 

Thank you again all for being helpful. I hope this topic will help the future applicants who are in the same situation as I am. I will try to post update for my parents’ case on here when the time comes.

Edited 6 hours ago by JayJay2o
Wanted to add more context

[mitzab 295]

If your parents have served their 3-year bar by staying outside the U.S., they generally do not need an I-601 waiver. The approved I-130 remains valid unless it has been terminated due to inactivity; confirm its status with USCIS or NVC. If the I-130 is active, you only need to file a new DS-260, pay fees, and provide updated supporting documents to proceed with their visa application after September 2025.