Overstay and 10 ban - what can we do

[canadian_wife 1,822]

Now I know you're all "oh we are so in love, how can the government keep us apart...it is so unfair" but that attitidue is not going to get her to the US. Reality, she overstayed and broke immigration law. While it may be forgiven, put your energy towards putting together the I601 waiver, along with waiver packet showing how you will suffer 'extreme hardship' if she isn't returned to the US and why you cannot move to her country. It is likely, as your lawyers have stated, that she will be denied at the interview. Many consulates will accept the waiver packet at the consulate when the denial is issued.

Don't wait, have the packt prepared for her interview. If she doesn't need it (which I wouldn't count on) then you haven't lost any time. If she does, then you could waste weeks or months as you prepare it and collect evidence.

Consulate a lawyer to help you with the waiver packet. Laural Scott offers free immigration chats on Wednesdays and is an expert in inadmissability. You can get her at scottimmigration.net

good luck

[TBoneTX 45,286]

You should start your own thread, and not jump into the middle of someone elses.

There are already at least two other threads, and this third one resurrected nearly a two-year-old thread.

[Sweetcheeksss 91]

Let me just add my 2 cents. If you DO need to file a waiver and are unsure where to even begin, I can personally recommend Laurel Scott. She was, by far, THE best decision we made. We ended up not needing to file the waiver, but I wanted to have her and not need her rather than need her and not have her. Some lawyers take on clients for the $$ - she does it because she BELIEVES in what she does.

Good luck with everything!

[Brad and Vika 129]

Split duplicate out of unrelated thread and merged duplicates here.

[Brad and Vika 129]

Moving duplicate to waiver forum

[Tero 105]

If freedom extended to immigration like you expect, my whole village, heck! my whole country would be here already!

[Christi85 86]

Hi Andy,

Well, I don't mean to sound harsh but if it wasn't unlawful to overstay a visa, then visas wouldn't have an expiration date, would they?

Freedom doesn't mean freedom to break the law, and being a US citizen yourself you must have been aware of how much of a problem illegal immigration is to the US. So how could overstaying a visa (=staying in a country illegally) not be against the law?

Now, on to your options (yes, her K-1 will most probably be denied because of the ban):

1) You file an I-601 waiver demonstrating extreme hardship by being apart, hoping that it will be approved. Some waivers get approved, but many don't. Give it your best, hire an attorney with experience in filing waivers, but also be prepared for the worst case scenario. If it's approved, great! The 10-year ban will be lifted and as long as the case doesn't have any other red flags, your fiancee should get her visa. If it's not approved, there are options 2, 3 and 4 for you.

2) If your I-601 isn't approved, you should be able to fight it by submitting updated information. This time you may be luckier and get it approved. If not, then you only have one of the options 3 or 4.

3) You move to Argentina to live with her until the end of 2018 when her ban will expire. Then you will be able to file again and hopefully be approved without a problem. OR, you stay and settle in Argentina and don't bother with the US visa ever again.

4) You stay apart until she is eligible to enter the country again in 2018, when you file for her immigrant visa, and in the meantime you visit her in Argentina as often as possible. I don't think you'd pick this one, but it's still an option.

Good luck!

Edited March 1, 2011 by Christi85

[mjaskiew 8]

OP - you guys don't need a I-601 waiver and your fiance's overstay should not be an issue if she was here on J-1 visa and left the US voluntarily!!!

Her I-94 was marked D/S (Duration of Status), which means she was not told what date she exactly needs to leave the country. This is a loophole that will save you! Unless she was placed in removing procedures, she should be fine!

In the case of I-94's marked D/S one is not considered "out of status" until it is declared by an immigration judge!

Here is the law:

7. Under the revised interpretation, aliens admitted for duration of status generally will not/not be subject to 222(g), regardless of their activities in the U.S., unless either:

(A) INS finds a status violation while adjudicating a request for an immigration benefit, or/or

(B) An Immigration Judge finds a status violation in proceedings against the alien.

8. Under the revised interpretation, a 222(g) refusal of an alien previously admitted for duration of status may not be based on the Conoff’s assessment of whether the alien did or did not maintain status. For example, even if a former F or J visa holder admits in his/her visa interview that he/she stayed in the U.S. months or years after studies ended, or worked without authorization, or never enrolled in school or undertook any studies at all, or never engaged in practical training that was authorized, the alien would still not/not be subject to 222(g), absent a prior finding of status violation by the INS or an Immigration Judge under the circumstances set forth in Para. 7.

Link: http://www.americanlaw.com/051296.html

Please research more (www.immigrate2us.net) or find a really good immigraton lawyer. Someone here suggested Laurel Scott, who specializes in cases like yours.

Your chances of bringing your fiance/wife back home are really high!

GOOD LUCK!

[Luckywife2007 6]

OP - you guys don't need a I-601 waiver and your fiance's overstay should not be an issue if she was here on J-1 visa and left the US voluntarily!!!

Her I-94 was marked D/S (Duration of Status), which means she was not told what date she exactly needs to leave the country. This is a loophole that will save you! Unless she was placed in removing procedures, she should be fine!

In the case of I-94's marked D/S one is not considered "out of status" until it is declared by an immigration judge!

Here is the law:

7. Under the revised interpretation, aliens admitted for duration of status generally will not/not be subject to 222(g), regardless of their activities in the U.S., unless either:

(A) INS finds a status violation while adjudicating a request for an immigration benefit, or/or

(B) An Immigration Judge finds a status violation in proceedings against the alien.

8. Under the revised interpretation, a 222(g) refusal of an alien previously admitted for duration of status may not be based on the Conoff's assessment of whether the alien did or did not maintain status. For example, even if a former F or J visa holder admits in his/her visa interview that he/she stayed in the U.S. months or years after studies ended, or worked without authorization, or never enrolled in school or undertook any studies at all, or never engaged in practical training that was authorized, the alien would still not/not be subject to 222(g), absent a prior finding of status violation by the INS or an Immigration Judge under the circumstances set forth in Para. 7.

Link: http://www.americanlaw.com/051296.html

Please research more (www.immigrate2us.net) or find a really good immigraton lawyer. Someone here suggested Laurel Scott, who specializes in cases like yours.

Your chances of bringing your fiance/wife back home are really high!

GOOD LUCK!

mjaskiew

KUDOS TO YOU!

What a great find and this may just be what the OP needed and if it were me, what a relief I would be feeling!

Edited March 1, 2011 by Luckywife2007

[Christi85 86]

OP - you guys don't need a I-601 waiver and your fiance's overstay should not be an issue if she was here on J-1 visa and left the US voluntarily!!!

Her I-94 was marked D/S (Duration of Status), which means she was not told what date she exactly needs to leave the country. This is a loophole that will save you! Unless she was placed in removing procedures, she should be fine!

In the case of I-94's marked D/S one is not considered "out of status" until it is declared by an immigration judge!

Here is the law:

7. Under the revised interpretation, aliens admitted for duration of status generally will not/not be subject to 222(g), regardless of their activities in the U.S., unless either:

(A) INS finds a status violation while adjudicating a request for an immigration benefit, or/or

(B) An Immigration Judge finds a status violation in proceedings against the alien.

8. Under the revised interpretation, a 222(g) refusal of an alien previously admitted for duration of status may not be based on the Conoff’s assessment of whether the alien did or did not maintain status. For example, even if a former F or J visa holder admits in his/her visa interview that he/she stayed in the U.S. months or years after studies ended, or worked without authorization, or never enrolled in school or undertook any studies at all, or never engaged in practical training that was authorized, the alien would still not/not be subject to 222(g), absent a prior finding of status violation by the INS or an Immigration Judge under the circumstances set forth in Para. 7.

Link: http://www.americanlaw.com/051296.html

Please research more (www.immigrate2us.net) or find a really good immigraton lawyer. Someone here suggested Laurel Scott, who specializes in cases like yours.

Your chances of bringing your fiance/wife back home are really high!

GOOD LUCK!

This could be a light in the end of the tunnel for the OP. Or not.

Yes, J-1 visas aren't given an expiration date but as soon as your course/training program/traineeship is over, then your stay is not justified anymore under the J-1. Sounds like the OP's fiancee was out of status in the US for 14 months after completing the course/traineeship that brought her to the US in the first place.

It also seems to me like point (A) could be the case of the OP - his fiancee is applying for an immigration benefit (a K-1 visa) and she has committed status violation. But again this could be open to interpretation.

The mention of the INS makes me skeptical as to how recent this legislation is, as the INS has formally been USCIS for 8 years now.

I think the OP needs to contact an experienced immigration attorney asap to be advised of the next steps/available options.