does inadmissibility end after 10 years abroad

[galaxybear459 0]

In a bit of pickle with my husbands IR1 visa case. We are very concerned he may be subject to a 10 year ban. He entered the US on a student visa in 2012 and was a student for 2 years. He had to drop out because his father couldn't cover the tuition after a job lose(abroad) but he remained in the US for 2 years. He thought it was fine to wait in the US for his dad to find a new job(abroad) because the length of his visa was until 2017. But a friend informed him that he was violating his visa. He didn't learn this until 2016 but when he did he left immediately. He left Feb 2016. He never attempted to get another visa or re-enter the US. His stay was continuous at that time. 

 

Our I-130 was approved at the end of Feb this year. My question is, if we wait until early Feb 2026 (exactly ten years since he left) to finish the NVC step, will this even be an issue. 10 years will have passed, so any penalty he could have faced should be done with right? I am abroad with him and am fine waiting another year. We don't want to, but if it means making this a non issue then we will. It's my understanding you have one year to file your documents with the NVC so it' cutting it close but we should still be able to file within the year limit. 

 

Also does it need to be 10 years before finishing the NVC, or 10 years before his interview. Like if we submit our documents in Dec 2025 and his interview is March 2026 would that be an issue? 

I know I probably need to contact a lawyer, we are looking for one now who has experience in this issue but we can't really afford one. Just trying to get an idea if we will be okay or not. 

 

Kind advice or knowledge/experience is appreciated. 

[Dashinka 25,127]

Simple answer to your thread title question, Yes. 

 

You can wait and delay the case at NVC (which I would recommend), then proceed to the consulate interview after Feb 2026.

 

It will be the CO at the consulate that will determine any inadmissibility (not NVC) and if a waiver is possible, or no necessary, as the 10 yr bar has expired.

 

Good Luck!

Edited March 13 by Dashinka

[nastra30 2,469]

You are right that he's subject to a 10 year ban. And yes, once he's served it he should be in good shape.

It's checked at the interview so you'll need to make sure the ban has been served before the interview date. Your timeline of March 2026 interview looks reasonable. 

 

[Boiler 46,510]

He had no money to continue his education and stayed far a couple of years.

 

What was he doing how was he living?

[galaxybear459 0]

@Boiler His family still paid his living expenses. He lived in a very low cost of living state and this was 10 years ago. They just couldn't afford the extremely expensive private university. He never worked if that's what you are asking. He spent time with friends, studied english on his own, prepared for Toefl (required to gain admission into the state university he wanted to attend) and volunteered at an old folks home by chatting with residents, which helped to improve his english. His only indiscretion was being young and dumb and staying when he wasn't in school. 

[Demise 1,384]

Unless something changed recently he shouldn't be subject to a bar. F-1s are generally issued with an I-94 for "Duration of Status" (D/S).

 

Due to a quirk in regulations (this part was never migrated properly to the policy manual so 40 AFM p. 76 remains controlling. For Dept of State that handles visa issuance for abroad that'd be 9 FAM 302.11-3(B)(1) .     Basically, persons admitted for D/S do not begin to accrue unlawful presence until one of the following happens:

1. USCIS makes a formal finding that the person fell out of status in the course of some other benefit application (e.g. files for AOS and gets denied)

2. Immigration judge orders removal

 

In case of which it begins to count from the following day, so the finding is not retroactive. If there's less than 180 days of unlawful presence then there's no re-entry ban for it and in this case it sounds like it was exactly 0 days.

 

Definitely do print out the relevant FAM section above and the prior I-94 since it might take some arguing but as the law and regulations exist he shouldn't be subject to a re-entry ban unless he somehow got admitted as an F-1 for a concrete period of time. So the question whether to wait is moot since there's no ban to wait out, if there was then yes, the ban expires on its own and he'd need to at worst prove that he left US on a certain date and there's no additional forms to file.

 

There was an attempt to make the unlawful presence start ticking automatically back in 2017, but after a lawsuit that was vacated.

Edited March 13 by Demise

[galaxybear459 0]

@DemiseThanks for the info, I will definitely look into that. Problem is I don't have a copy of his I-94. They wanted a copy for the I-130 but we didn't have it. The number was written in pencil in his old passport and was hard to read. We weren't sure of what it said exactly. We showed that and wrote a letter stating when he entered and exited, where he lived. We also mentioned that he attended school during his time there, which he did, but we did not give dates or say anything about him being in school the entire time or not. Because he entered before 2013 we can't get a copy electronically so I think I would have to submit a written request to get it which is expensive and takes months. 

[Demise 1,384]

36 minutes ago, galaxybear459 said:

@DemiseThanks for the info, I will definitely look into that. Problem is I don't have a copy of his I-94. They wanted a copy for the I-130 but we didn't have it. The number was written in pencil in his old passport and was hard to read. We weren't sure of what it said exactly. We showed that and wrote a letter stating when he entered and exited, where he lived. We also mentioned that he attended school during his time there, which he did, but we did not give dates or say anything about him being in school the entire time or not. Because he entered before 2013 we can't get a copy electronically so I think I would have to submit a written request to get it which is expensive and takes months. 

Do a FOIA with CBP. It will take a bit but it's free to file. https://www.cbp.gov/site-policy-notices/foia/faq-foia