Tricky situation - advice needed

[SnL 0]

I'm new to these forums, but have been reading through and they have been very helpful. I've just started the K1 process for my fiance who currently lives in Mexico. There is a situation though that I would love some advice on how to approach. I will give the facts as best I can.

My fiance overstayed a visa around 7 years ago. She was in the US for a total of approximately 9 months, but is unsure if her orignal visa was 1 or 6 months (I know it matters). While here, she did hold a job, but her employer knew she was illegal and she was paid in cash. She did not rent, use credit cards, own a car, have a bank account, etc while she was here. She left voluntarily and without incident. When she left though, she did not return the visa or have anything stamped.

Since that time, she has been back to the U.S., both for vacation and for work. Each time she has applied for and received a vaild visitors visa, and returned within the limits of the visa. She has vistited 2-3 times, the most recent being in 2006.

I have several questions about how to approach this once we are further along in the K1 process. I know honesty is normally the best policy. But since she has applied for and recieved valid visitors visas, if she admitted now to overstaying, could they use that as a reason for a ban? Since the visa was never returned, could they know she overstayed? Or, on the other hand, since it was never returned, how could she prove she overstayed less than a year? Or perhaps even less than 180 days?

From research here on this forum and on the net, it seems that if she overtayed less than 180 days, there would be no ban or waiver needed. If she overstayed 180-365 days, a 3 year ban would apply, but since this was almost 7 years ago, the ban would have already been served. Would a waiver still be needed? Can anyone here confirm my information is correct?

I understand this is a delicate situation, and I want to get as much information about the best way to approach it and the potential consequences as possible.

Thanks to all for any advice!

[kitkat1 5]

Most likely her original duration of stay was for six months (the officer at the point of entry determines the length of stay -- not the visa. The visa validity is ten years). She overstayed by 90 days - no ban. Even if there was a ban, it would be for three years and it's long since over.

You must tell the truth on all forms (see the penalty section at the bottom of each form) and at the interview she will be under oath. Being caught in a lie means being charged with misrepresentation - not an easy charge to overcome. Tell the truth about everything.

You should also investigate the potential problems with having worked on a tourist visa. I wouldn't expect there to be an serious ramifications because illegal work is forgiven visa marriage to a USC. But again, if questioned about this, she cannot lie. She violated the terms of her tourist visa by working, but she needs to tell the truth about it. If you are still concerned, consult with a qualified immigration attorney.

[SnL 0]

Most likely her original duration of stay was for six months (the officer at the point of entry determines the length of stay -- not the visa. The visa validity is ten years). She overstayed by 90 days - no ban. Even if there was a ban, it would be for three years and it's long since over.

You must tell the truth on all forms (see the penalty section at the bottom of each form) and at the interview she will be under oath. Being caught in a lie means being charged with misrepresentation - not an easy charge to overcome. Tell the truth about everything.

You should also investigate the potential problems with having worked on a tourist visa. I wouldn't expect there to be an serious ramifications because illegal work is forgiven visa marriage to a USC. But again, if questioned about this, she cannot lie. She violated the terms of her tourist visa by working, but she needs to tell the truth about it. If you are still concerned, consult with a qualified immigration attorney.

Thanks very much for the reply! Given the circumstances, if there was no ban, or the ban has since passed, would a waiver be necessary? What is the likelyhood they would ask specifically about that stay? Or is it part of any forms that will be submitted? Also, would admitting the overstay now be cause for them to deny based on the subsequent tourist visa's she obtained?

[kitkat1 5]

Thanks very much for the reply! Given the circumstances, if there was no ban, or the ban has since passed, would a waiver be necessary? What is the likelyhood they would ask specifically about that stay? Or is it part of any forms that will be submitted? Also, would admitting the overstay now be cause for them to deny based on the subsequent tourist visa's she obtained?

If there was a ban, it's over so no need for a waiver. But that doesn't mean you can lie about it. Hard to know what they'll ask her about, but again, she has to tell the truth on all forms and at the interview under oath.

Chances are slim that she would be able to get another tourist visa now b/c she has a K1 in process and because of her prevous visa violations (overstay and illegal work). Make sense?

[SnL 0]

Thanks again kitkat! I don't think I was clear on my tourist visa question. She has already recieved 2-3 tourist visa's since the one she overstayed. I don't know what questions/forms are filled out in order to obtain the tourist visa, but I feel certain if there is anything regarding previously overstaying, she answered "no" when getting those visas. My question was, if that was the case, and she admits now to overstaying, could they ban her for misrepresenting on the tourist visas?

[kitkat1 5]

Thanks again kitkat! I don't think I was clear on my tourist visa question. She has already recieved 2-3 tourist visa's since the one she overstayed. I don't know what questions/forms are filled out in order to obtain the tourist visa, but I feel certain if there is anything regarding previously overstaying, she answered "no" when getting those visas. My question was, if that was the case, and she admits now to overstaying, could they ban her for misrepresenting on the tourist visas?

If she has already received two or three new tourist visas since she overstayed -- I assume she lied on those tourist visa forms. But since tourist visas are valid for 10 years, I think you mean she has re-entered two or three times on the same visa.

It could cause a problem but you won't know until the interview.

It can very well cause a problem at the AOS interview in the US -- this just happened to another person from CDJ who had a prior overstay, was approved at the interview without the need for a waiver, and then was charged with misrepresenatation at her AOS interview and was denied.

If you look at the DS-156 she will have to truthfully answer the following questions:

Have you ever been refused admission to the U.S., or been the subject of a deportation hearing or sought to obtain or assist others to obtain a visa, entry into the U.S., or any other U.S. immigration benefit by fraud or willful misrepresentation or other unlawful means?

Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States

Perhaps you should have a consult with a qualified immigration attorney like Heather Poole so you are clear on what you may be facing.

[SnL 0]

Yikes! The AOS interview would not be until after we were married and then applied, correct? The person you speak of, if she was denied at that point, she had to return to her home country? Would she have to start the whole process again, this time coming in as a spouse and needing a waiver?

[kitkat1 5]

Yikes! The AOS interview would not be until after we were married and then applied, correct? The person you speak of, if she was denied at that point, she had to return to her home country? Would she have to start the whole process again, this time coming in as a spouse and needing a waiver?

She'll have to file an in-country waiver to cover the misrepresentation. Takes a lot longer than in Mexico and she can't get her EAD or AP until it's complete.

[SnL 0]

But she would be able to remain in the country, correct?

Thanks so much for your patience with my questions!

[kitkat1 5]

But she would be able to remain in the country, correct?

Thanks so much for your patience with my questions!

Remaining in country, but no authorization to work or travel outside the US. Might also be able to file a an appeal or motion to reconsider the denial. But these are all at AOS in the US. I would definitely consult with an attorney to be clear.

[SnL 0]

KitKat...sorry to drag up this old post, but I have some more questions. Looking back through your responses and trying to gather some more information, I have some more questions to.

First, you referenced the DS-156. This is the form she would fill out for a tourist visa, correct? You were correct, her visa is for 10 years, and she has used the same visa the whole time. So, when she orginally applied, and answered the questions you listed above, she was able to answer honestly, "no". She has not applied for a new visa, so she has not had to answer those questions again. However, I'm unsure what is involved when she goes to the border to get permission to enter. Is there a form for that also? Or is it just an interview at the POE?

On DS-230, the question about overstaying

"An alien who was previously ordered removed within the last 5 years or ordered removed a second time within the last20 years; who was previously unlawfully present and ordered removed within the last 10 years or ordered removed a second time within the last 20 years; who was convicted of an aggravated felony and ordered removed; who was previously unlawfully present in the United States for more than 180 days but less than one year who voluntarily departed within the last 3 years; or who was unlawfully present for more than one year or an aggregate of one year within the last 10 years"

is worded such that she again can honestly answer "no"

So I guess the main question I was hoping you can help with is the one about any forms when coming for visit to the US....is there a question on that form regarding overstays?

Thanks so much for your help. By the way, we do have a lawyer, but I'm not putting all my eggs in one basket!!!

[Emo 0]

I'm new to these forums, but have been reading through and they have been very helpful. I've just started the K1 process for my fiance who currently lives in Mexico. There is a situation though that I would love some advice on how to approach. I will give the facts as best I can.

My fiance overstayed a visa around 7 years ago. She was in the US for a total of approximately 9 months, but is unsure if her orignal visa was 1 or 6 months (I know it matters). While here, she did hold a job, but her employer knew she was illegal and she was paid in cash. She did not rent, use credit cards, own a car, have a bank account, etc while she was here. She left voluntarily and without incident. When she left though, she did not return the visa or have anything stamped.

Since that time, she has been back to the U.S., both for vacation and for work. Each time she has applied for and received a vaild visitors visa, and returned within the limits of the visa. She has vistited 2-3 times, the most recent being in 2006.

I have several questions about how to approach this once we are further along in the K1 process. I know honesty is normally the best policy. But since she has applied for and recieved valid visitors visas, if she admitted now to overstaying, could they use that as a reason for a ban? Since the visa was never returned, could they know she overstayed? Or, on the other hand, since it was never returned, how could she prove she overstayed less than a year? Or perhaps even less than 180 days?

From research here on this forum and on the net, it seems that if she overtayed less than 180 days, there would be no ban or waiver needed. If she overstayed 180-365 days, a 3 year ban would apply, but since this was almost 7 years ago, the ban would have already been served. Would a waiver still be needed? Can anyone here confirm my information is correct?

I understand this is a delicate situation, and I want to get as much information about the best way to approach it and the potential consequences as possible.

Thanks to all for any advice!

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