Archive for Overstay

Not Sure to Marry My Fiancee Before or After Naturalization. Help!

Posted in Extension of Status, Naturalization, Nonimmigrant Visas with tags , , , , on August 13, 2014 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

I am a permanent resident and am going to apply for a US citizenship within a week. My fiancee from Mexico and I are talking about our marriage this year. But I wonder whether we should get married before or after I convert my nationality to a US citizen. Is it better to get married before my naturalization? She came here with a B1/B2 visa with I-94 four months ago and has to renew her I-94 every 6 months to stay in California.  I’ve sent you separately details about my naturalization case.

Answer:

First of all, someone with a B-1/B-2 tourist visa can only request one extension to stay here for an additional six months, it’s not something to renew every six months (a person simply can’t be a tourist for years and years in the US).  Also, your fiancee must have good reasons why she wants to stay here longer as a tourist before the extension will be granted.  As long as she files for extension before the date her current stay expires on her I-94 (which should be in about two months), she will be allowed to stay here pending a decision on the extension.  Since you’re here in the Los Angeles area, it’s currently taking California Service Center about 2 ½ months on average to reach a decision.

As far as timing of the marriage, you can do it before or after your naturalization has been approved based on the information you’ve shared.  It should be after her tourist extension application (Form I-539) has been filed, to prevent USCIS from denying the extension on the grounds that she has a husband who has a green card and so she’ll likely have immigrant intent to stay permanently in the US.  If you do that and file an I-130 for your wife immediately, still before your naturalization case is approved, there will be no visa number available for a few years for her because the I-130 will be under the F2A category, which has only a limited number of visas each year.  Filing the I-130 for her will only be a preliminary step; she still would have to wait a few years before being eligible for a green card.  That would be the situation if you don’t become a citizen quickly enough.  However, as soon as you become a citizen, the I-130 is automatically converted to that for an immediate relative and she’ll be able to file for green card right away if she’s still in the US.  From what you sent me before, your naturalization case (Form N-400) will probably be approved within about five months from now here in L.A. since it looks pretty routine.  You don’t seem to have difficult issues such as criminal arrests or convictions, or other issues that could drag the case out for more than the expected time until approval.  So, yes, under these circumstances, you can marry after her own I-539 is filed and file an I-130 for her because five months from now, it appears fairly certain you will become a US citizen (Note:  this is an average time as currently being reported by USCIS, each case may take slightly longer or shorter).

You also asked what if for some reason your citizenship is delayed and takes a lot longer to be approved, say a year and half from now.  In that case, your wife, even after receiving an extension of her tourist status for six months, may be running up against the end of her allowed stay while your own case is still waiting for a decision.  However, she could stay here and even be out of status and wait for a favorable decision on your case, then file for green card.  Is there a risk for her being out of status?  Yes, but there’s only a slight risk since immigration officials are not likely, during current immigration climate, to send notice of deportation proceedings to her for being only a short time out of status.

You can, of course, delay the marriage until after your naturalization is approved.  That would seem to be about five months from now, as stated above, if your case is smooth.  But even if it’s not smooth, and takes a year and half to get approved, and assuming she will even be out of status, you could still marry her after your naturalization has been approved, and she’ll be able to get her green card here.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

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Can My Out of Status Boyfriend Get H4 Status Through Me?

Posted in Adjustment of Status, H-1B, Nonimmigrant Visas, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , , on August 3, 2014 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Hi GuruImmigration, I am currently an H1B visa holder. I want to marry my boyfriend who’s tourist visa expired in September 2012 (so he’s out of status). My company just informed us that in October 2014, they would petition us if we want to. My question is, If I marry him now, can he adjust his status to H4? If not, once my employer applies for my greencard, can he adjust his status and receive his greencard when I get mine?

Please help!

Answer:

Normally, spouses of H-1B visa holders receive H-4 status.  However, because your boyfriend’s already out of status, he cannot “change status” from tourist visa to the H-4 visa while still in the US after he married you (it’s not “adjust status” because that term is only for going to green card).  He must go back home to try to receive the H-4 visa at the U.S. consulate.  This is why remaining in-status is so important.

The problem is, because he’s been out of status for more than a year by now, he will get the 10-year bar as soon as he leaves the US and tries to apply for admission as an H-4 at the consulate.  The bar means he cannot be admitted back to the US for 10 years from date of departure.  Unfortunately there will be no waiver possible for this, which is only possible if extreme hardship can be shown to a spouse or parent who is a US citizen or legal permanent resident (LPR or green-card holder) when he is denied the H-4.  In this case, you are neither a citizen nor LPR, so no waiver is possible (assuming he doesn’t have a parent who’s a citizen or LPR).

If you manage to receive the green card through your employer in the future, then your future husband will also not be able to adjust status by being a dependent on your case because he’s been out of status for so long.  He’ll have to go home and try to apply for permanent residence there.  However, the 10-year bar will also apply if he leaves the US.  The only difference then will be that you will be an LPR, so the two of you will have to prove that you’ll experience extreme hardship if he is denied the visa to immigrate (due to family separation and other factors). It will be a hard case, but not impossible, and will require attorney assistance.

Follow-up question:

How about this statement I found on another site:

“The dependent spouse and child of an employment-based beneficiary are considered derivative beneficiaries. They are therefore eligible for lawful permanent residence under the same employment-based preference category as the principal beneficiary.”

Follow-up answer:

Yes, that statement would indeed be true when the derivatives are in-status. If the derivatives are out of status while in the US, they cannot adjust when it’s employment-based unless it’s only 180 days or less out of status. Unfortunately, your boyfriend has been out of status for more than a year.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

Top 10 Reasons Why Immigrants Get Visas Denied – 2013 Update

Posted in Grounds of Inadmissibility, Immigrant Visas, Removal (Deportation) Proceedings, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , on August 20, 2013 by GuruImmigration

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Note:  The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Although it was with data from four years ago, the article compiling the main reasons why applicants were denied their visa applications by U.S. immigration authorities has been one of the most popular articles on our blog.  Now, 2012 data are available, which is the latest complete year available, and so it’s time to update that article.

These reasons for visa denial are known as “grounds of inadmissibility” or “inadmissible grounds.”  As in the previous article, the lists here only contain data of those applicants who tried to apply for immigrant visas last year to the U.S., that is, to immigrate permanently here.  Data for nonimmigrant visas (temporary visas) are available; however, the criteria for overcoming the inadmissible grounds can be quite different with nonimmigrant visas, so they are not covered here.

As before, the first table includes the total number of applicants denied last year, as well as the percentage who were denied. In other words, out of the total number of applicants faced with a certain ground of inadmissibility, such as for example, misrepresentation, the percentage given represents those who were notified by immigration authorities they had that ground for visa refusal as an obstacle, then tried to apply for a waiver or exception to overcome that ground but failed.  Obviously then, 100 – %denied represents the percentage of those who successfully overcame that particular ground.

For a background description of these inadmissible grounds in greater details, please see our previous article, “Top 10 Reasons Why Immigrants Get Visas Denied.

Table 1. Top 10 grounds of inadmissibility for FY 2012 under the Immigration and Nationality Act, ranked by total number of visa applicants denied (percentage denied)

1. Application does not comply with provisions of law or regulations – 105,677  (35%)
2. Labor certification – 10,000 – (88%)
3. Unlawfully present 365 days or more (10-year bar) – 5,851  (21%)
4. Misrepresentation – 5,699  (77%)
5. Unlawfully present after previous immigration violations –2,964  (100%)
6. Smugglers – 2,210  (60.8%)
7. Drug abuser or addict – 1,523  (100%)
8. Ordered removed/departed while removal order outstanding – 1,175  (61.4%)
9. Crime involving moral turpitude  – 1,003  (75%)
10. Falsely claiming citizenship – 687  (100%)

So, what has changed from our previous list for 2008? First of all, it is extremely noteworthy that for ground no. 3, unlawfully present 365 days or more, otherwise known as the 10-year bar, only 21% of applicants were denied in 2012 as compared to 46% in 2008.  This is a very significant decrease as it shows many more applicants successful with the waiver of this bar in 2012 than in 2008.  In fact, it was the least difficult ground to overcome in 2012 among the top 10, as seen in Table 2 below.  I’m not exactly sure why, except that maybe (a strong ‘maybe’ actually) USCIS has relaxed the standards for approving the waiver of this bar since 2008.  Legally, the waiver requires extreme hardship to the applicant’s citizen or permanent resident spouse or parent, before it could be approved.  However what exactly is “extreme hardship” could indeed be flexible.  See here.  Or, it could be as we discussed in the prior article, the lower percentage of denial means that applicants in 2012 who knew ahead of time they were faced with the 10-year bar also knew they had stronger cases of extreme hardship to begin with than applicants in 2008.  Stronger hardships in an applicant’s circumstances tend to increase the chance that the waiver for this bar would be approved.  However, it isn’t possible to draw a firm conclusion as to any longterm trend due to the fact that the percentage of denial in 2010 was actually an amazingly low 15% while in 2011 it went back up to 36% and back down to 21% for 2012.

Note:  For certain applicants who are immediate relatives and who are already in the U.S., a new “provisional waiver” has been available since March 4, 2013, where the applicant can apply for the waiver here rather than being forced to apply for the waiver only in their home country.  I will write more about this new waiver soon.  It will be interesting to see the impact of this new waiver process on the percentage of denial in the 2013 data, which will be available next year.

Another interesting observation about the 2012 list is that in terms of rank, the top four reasons for visa denial still remain the same.  While the percentages of denial for grounds no. 1 (does not comply with provisions of law or regulations) and no. 4 (misrepresentation) remain fairly constant, the percentage of denial for ground no. 2 (labor certification) has also decreased somewhat by 9%.

A surprise is how the percentage of denial for smugglers (no. 6) was only 60.8% in 2012 as opposed to 92% in 2008.  Although the total number of applicants denied on this ground in 2012 was twice that in 2008, the total number of applicants who were faced with this ground in 2012 was actually more than three times that in 2008.  Thus, it appears that the standard for approving the smuggling waiver might have also been relaxed.

Also, two new grounds made the top 10 list for 2012 but did not in 2008:  ordered removed/departed while removal order outstanding (no. 8) and false claim of citizenship (no. 10).  The first has to do with those applicants who were ordered deported or removed from the U.S. at some time in the past, who then departed, and later applied for an immigrant visa within 10 years from the date of departure (or 20 years for those with more than one order of removal or for aggravated felons).  There is a type of waiver available for these applicants where the Attorney General has to consent to the applicant’s applying for a visa sooner than the 10 years (or 20 years).  Even so, 38.6% of these applicants successfully overcame this ground.  As for those who falsely claimed U.S. citizenship in the past, it’s not surprising that this is an unforgiveable mistake.

Table 1 ranks the top 10 reasons for visa denial in terms of number of applicants.  In terms of percentage, the ranking goes like this from the most difficult to overcome to the easiest:

Table 2. Top 10 most difficult grounds of inadmissibility to overcome under the Immigration and Nationality Act for FY 2012, ranked by percentage denied

1. Unlawfully present after previous immigration violations – 100% denial*
2. Drug abuser or addict – 100%*
3. Falsely claiming citizenship – 100%*
4. Labor certification – 88%
5. Misrepresentation – 77%
6. Crime involving moral turpitude (CIMT) – 75%
7. Ordered removed/departed while removal order outstanding – 61.4%
8. Smugglers – 60.8%
9. Application does not comply with provisions of law or regs – 35%
10. Unlawfully present 365 days or more (10-year bar) – 21%

* Ranked by total number of applicants denied since these are all 100% denial

Copyright © 2013 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?

Posted in Immigrant Visas, Lawful Permanent Residence, Naturalization, Removal (Deportation) Proceedings, Voluntary Departure, work permit with tags , , , , , , , , , on September 24, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people have written us skeptical or not sure of the danger of the 3- and 10-year bars. Admittedly, these bars seem somewhat abstract or theoretical, and it can be difficult to grasp how they could affect oneself. Some people have asked how is it that people who are already in the U.S. “cannot get their papers here.” Well, that’s the way the law currently is. It was passed in 1996 as a way of penalizing people who came here illegally or who came legally but overstayed their visas for at least 6 months. The penalty was that these people could not get their papers here but must travel back to their home countries to do so. However, as soon as they set foot outside the U.S., they are subjected to these bars when they try to apply legally to return to the U.S. within 3 or 10 years.

With that in mind, it was quite nice that a reader of this blog recently commented and shared her experience with the 10-year bar. Her story was quite sobering, and we thought it has a little bit of everything that we’ve been blogging about, so we wanted to share it with you to show how this bar could wreak havoc on people’s dreams of living in the U.S. We’ve edited some of the original language to make it easier to read:

Hi Guru,
I came to USA on a tourist Visa in 1994 July. Got married to a green-card holder then in 1997 October. My husband applied I-130 for me in October 1997 and it was approved. I went with a friend of mine to the immigration in 1998 and I was inquiring for employment authorization and that’s where I was caught. I was released couple of hours later and reported to them every month. Appeared before the judge in Sept. 1998 and granted voluntary departure. The judge gave me 120 days which will expire on December 31, 1998. I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time I had to leave USA on 30th December 1998. I did not overstay the 120 days given by the judge.

OK, this lady had an I-130 petition filed for her by her green-card holder husband in 1997, then went to the Immigration Office to try to apply for an employment authorization document (EAD, or work permit) and got caught. Why? Doesn’t having an approved I-130 entitle you to a work permit?

The answer is most of the times no, not at all. When the husband filed the I-130 in 1997 for her, that placed her into the F2A category of spouses and children of green-card holders. At that time in 1997, people in that category had to wait something like 4 years for a visa number to be available. However, as we’ve shown elsewhere, without a visa number available, one cannot get a work permit. So, in 1998, when she went to the local Immigration office to inquire (and most likely apply) for the work permit, she was not entitled to one yet. At that time, we know she was out of status because it had been 4 years since she came to the U.S. on the tourist visa (in July 1994) and no tourist visa lasts 4 years. The act of going to the Immigration office made them aware of her presence in this country as being out-of-status. Therefore, they detained and released her but ordered her to appear in front of a judge in removal proceedings!

This shows that people who are out-of-status in the U.S. should proceed extremely carefully when trying to apply for something with Immigration here without consulting a lawyer. The lady here presumably did not do so, or got bad advice that she could qualify for a work permit, and made the mistake of applying for it. That’s how Immigration discovered that she had overstayed her tourist visa by 3 or 4 years.

What about the husband becoming a citizen, wasn’t that supposed to help her? Well, no, not unless he was approved for naturalization and was sworn in on time. In removal proceedings, the judge only gives the alien a couple of continuances at most, a good lawyer could get even more. If, after the continuances, the alien still does not have any form of relief available, then the judge cannot keep delaying the case and either will order removal or allow the alien the privilege of voluntary departure. Voluntary departure allows the person to leave the U.S. cleanly without having a removal or deportation against them on their records, and the maximum time given is 120 days to leave. IF the husband had been sworn in as a citizen in time while the lady was still in removal proceedings, then she would have converted from the F2A category to the immediate relative category, and a visa number would have been immediately available to her. Then she could have applied to the judge for her green card without having to leave the U.S.!

But, unfortunately, as she stated, “I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time, I had to leave USA on 30th December 1998.” So, because her husband did not become a citizen quickly enough, she indeed had to leave the U.S. within the 120-day period granted by the judge.

Her story then continues:

I went back to Malaysia and remained there since January 1st 1999. In May 1999 my husband became us citizen and he applied for immigrant visa for me and I had the interview on May 2000 and was denied because of overstay and it was a 10 year bar. I appealed and was rejected the I-601. The 10 year bar starts from the day I left USA. I left on 30th December 1998 and i have already completed the 10 year which is 30th December 2008.

So, back in Malaysia, after her husband had become a U.S. citizen, a visa number immediately became available for her. She naturally then tried to apply for the immigrant visa to return permanently to the U.S. She first was denied her visa due to the consulate’s finding that she overstayed previously by about 4 years on her prior tourist visa. Then, she filed the I-601 to try to apply for the extreme hardship waiver. However, this was also denied. Because of this, she could not get back to the U.S. legally, and had to wait 10 years from the date she left the U.S. before she could apply again! How could this happen, you might ask, since she got voluntary departure?

Well, voluntary departure at least prevented a removal order from being on her records, which would have been worse. However, the truth of the matter is that, receiving a grant of voluntary departure while in removal proceedings in court did nothing to erase the more than one year of unlawful presence that she had accumulated in the U.S. before starting her court proceedings. Thus, she became subjected to the 10-year bar as soon as she stepped foot outside the U.S. That’s how strict this bar is. The timing was particularly unlucky because not long after she left the U.S. on December 30, 1998, her husband became a citizen, and she became qualified for a visa to return to the U.S. But, unfortunately, at the consulate interview in Malaysia, the bar was invoked against her, as you can see, and so she had to wait 10 long years until December 30, 2008 to reapply.

Note: Some people are under the mistaken impression that this 10-year bar is only applicable if there was a removal (deportation) order against them. Not true! This 10-year penalty for being unlawfully present in the U.S. at least one year (either by overstaying one’s visa that long or being here illegally when one has no visa) kicks in no matter how one departs the U.S., even if it is voluntarily!

In any event, this lady’s heartfelt story above shows that there are real immigrants out there everyday who simply cannot “get their papers” here, but must return to their countries to do so. And, when they do that, they may be stuck in their countries for 10 years before being allowed to return, as happened with this lady. Having paid her dues, she is now in the process of reapplying again through her citizen husband, and should get approved easily this time since the 10 years have already passed with her being outside the United States. This is a real story. It is a story multiplied by thousands of times. For the sake of unification of families, let us hope that Congress will remove these bars from the law as soon as possible.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

Student visa holder married green card holder, what can she do?

Posted in Lawful Permanent Residence, Nonimmigrant Visas with tags , , , , , on August 18, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Dear GuruImmigration,

My sister is a F1–name removed–currently maintaining status. She married a Green Card Holder (DV) in April 2009. They have not filed any petition yet as she wanted to continue studies as a F-1. They have been living together.

She is going to graduate in May 2010. Now she wants to file family petition and remain in the US with her husband.

(1) Do we file I-130, I-485, I-765, I-131 together at the same time?

(2) Can she remain in the US until there is a decision on her I-130 OR will she have to continue going to school?

Answer:

The husband is a legal permanent resident (LPR or green-card holder) and can only file an I-130 for your sister. The I-485 application to adjust status to permanent residence CANNOT and must not be filed together with the I-130 or it will be rejected because the husband only has a green card and not a U.S. citizen yet. The I-485 can ONLY be filed once a visa number is available for your sister as the wife of an LPR. That’s because the immigrant who marries an LPR has to proceed one step or stage at a time, and the first step that must be taken is filing the I-130 and wait until it is approved by U.S. Citizenship & Immigration Services (USCIS).

The I-130 is approved relatively fast but it does not grant your sister the right to file the I-485 until a visa number is available in her appropriate category of relatives. As the wife of an LPR, she is in the F2A category of relatives, which is running about 4 years behind in visa numbers, more or less. She’ll have to maintain lawful status in this country (continuing going to school, change to H-1B, E-1 visa, or whatever other nonimmigrant visa she qualifies for independently), while waiting in the 4 years or else she will jeopardize her chance of filing an I-485 in the future due to being out-of-status. Not until there is a visa number available for the F2A category will the I-485 finally allowed to be filed. And as stated, no visa numbers are available for a few years in that category if an I-130 is filed today. To understand this issue read the article “I-130 Approval Is Not Green Card!” as a whole, with particular attention to what we have called the “Stage 1” and “Stage 2” waits in that article.

So, in essence, marrying an LPR is less “advantageous” than marrying a U.S. citizen, because an immigrant who marries a citizen can file an I-130 together with the adjustment of status (the I-485) and work permit and all that quickly since there is no wait for a visa number. This is obviously the scenario described in our article “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?” However, if one is in love with an LPR, then that’s who one is in love with!

Also, many immigrants continually make the mistake of thinking that as soon as their LPR spouses file the I-130 for them, that they can stay in this country regardless if their nonimmigrant visa (the student visa in this case) is out-of-status. No! The I-130, even if it is approved, does NOT grant any right to a person to be in this country or to get a work permit or a driver’s license whatsoever. A person who is out-of-status on their nonimmigrant visa is subjected to removal (deportation) proceedings at any time. Whether they will actually be served papers to go to court for those proceedings is another story due to lack of resources on the part of Immigration & Customs Enforcement. But understand if a person is out-of-status, this could happen any time. Jan. 19, 2010 update: For example, see the comment of another reader whose brother overstayed a tourist visa for two years and thought he could continue to stay here until one day the police or immigration agents came to his house to put him into deportation.

The way to get out of this quandary is if the husband files for citizenship and gets approved in the meantime. That will reduce your sister’s wait and make things easier. Of course, saying that the husband could file for citizenship does not mean that it’s a done deal. He will have to wait until he’s been an LPR for 5 years, then go through the actual process of applying, and then he may or may not get approved, depending on his behavior and records since he became an LPR.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

 

Nonimmigrant Visas and Why Maintaining Status in the U.S. Is Important

Posted in Adjustment of Status, Change of Status, Extension of Status, Lawful Permanent Residence, Nonimmigrant Visas with tags , , , , , , on August 14, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people ask us what is a Nonimmigrant Visa? Isn’t everybody an immigrant to the United States? Well, no. Even though the media and everyday language tend to refer to everyone who comes to the U.S. as an “immigrant,” commonsense would dictate that that is not always the case. There are people who simply want to come here to visit for a while, or for another purpose such as going to school or work for a company for a period of time. For those people, the only way they can come to the U.S. legally is to be approved for a nonimmigrant visa at the U.S. consulate in their homeland.

These types of visas are always issued so that the person is allowed to stay for only a limited length of time in the U.S., never permanently. The period could be as short as a few months to as long as a few years, depending upon the purpose the person has in coming to the U.S. The problem is when people treat their nonimmigrant visa as a permanent visa. They begin to feel they can just stay here indefinitely. We actually get this quite often with clients who consult with us. Most of them of course know ahead of time they’re allowed to stay here for a limited length of time, yet many call us after their stay has expired because they assumed that an immigration lawyer would make everything alright. Well, usually we can help, but sometimes we cannot. After a person has overstayed, it is usually difficult to fix the problem or would be very costly to the client to fix, short of the client going back to their country.

Consequences of Overstaying Visa

What are the consequences of overstaying one’s nonimmigrant visa? First of all, you will not be allowed to extend status (get more time on your stay here), but must leave the U.S. and reapply for a new entry. Secondly, you’re not allowed to change status while in the U.S. to another nonimmigrant visa. Say you came here with a tourist visa to visit friends at an American college, but then decided you like the school so much you want to go there, too. You can apply to change status to a student visa if you do so before the end of your tourist stay (which on a tourist visa is usually 6 months). However, if you wait until after your stay has expired, you won’t be allowed to change status but must go back to your country and apply for a new student visa.

Or, say you’re here on a student visa pursuing a bachelor’s degree at an American university. Now, you’re graduating and have received a job offer at a U.S. high-tech company. You would need to obtain an H-1B visa in order to be allowed to work at your job. You can apply for change of status to H-1B if you do it prior to the end of the time allowed you as a student (usually 60 days after graduation or end of optional-practical-training work permit), but not after.

Another consequence of overstaying a nonimmigrant visa, which is very undesirable and can be disastrous, is the inability to adjust your status to permanent residence (not to be confused with “change of status” discussed above), as described below.

The worst consequence of overstaying is that an overstayer is subjected to removal (deportation) at any time. Whether they will actually be served papers to go to court for removal proceedings is another story (due to lack of resources on the part of Immigration & Customs Enforcement). But understand if a person is out-of-status, this could happen any time. Jan. 19, 2010 update: For example, see the comment of another reader whose brother overstayed a tourist visa for two years and thought he could continue to stay here, until one day the police or immigration agents came to his house to put him into deportation.

Extension & Change of Status

Extension of status or change of status (to another nonimmigrant visa type) while still in the U.S., when allowed, is obviously highly desirable since the person does not have to leave and reapply for a new entry or apply for the new type of visa at the U.S. consulate in that person’s country. He or she would apply with U.S. Citizenship & Immigration Services (USCIS) here and await a decision while remaining in the U.S. This obviously saves time, money, and hassle.

Sometimes a person overstayed their nonimmigrant visa through no fault of their own. In those unusual situations, the immigration law does have a provision to excuse the overstay and the person can still apply for change of status. However, it is not always easy to prove that it was no fault of one’s own. The assistance of an experienced immigration lawyer is usually necessary in those cases.

Of course, a person who overstayed their visa can leave the U.S. and reapply for the new visa at the U.S. consulate in their country. However, at the visa interview, their overstay will be discovered and the visa probably denied. Or, if they try to come back to the U.S. on the original visa, usually the overstay will be discovered by the immigration officer at the airport, and that visa will be canceled and the person denied entry. Ouch!

By the way, the length of validity, or when the nonimmigrant visa expires, as printed on the visa itself, has nothing to do with the actual length of stay permitted by the immigration officer when a person arrives in the U.S. For example, many B-1/B-2 tourist visas have a 10-year expiration printed on them. That is simply the length of time the same visa can be used to apply for entry at the airport. The tourist will not be allowed, as some people mistakenly believe, to visit and stay in the U.S. for ten years! The immigration officer will give him or her 6 months in most cases because that’s the maximum length of initial stay on a tourist visa (it can be extended by another 6 months maximum while still in the U.S.). The officer will give the tourist a little slip called the I-94 with the red-ink expiration date that’s stapled to a page inside the passport and stamped with the final day of stay. Some nonimmigrant visas, such as the F-1 student visa, will receive the I-94 with the “D/S” notation, meaning that they are allowed to stay for the “duration of status,” or until the end of their educational program or other activities.

A nonimmigrant visa is like a contract or agreement. If you break the promise of complying with the terms of the agreement (by overstaying), you are penalized under the agreement. Instead of contractual damages, however, you are penalized by not being allowed to extend or change status or to return quickly to the U.S.

Serious Consequence of Overstaying: No Adjustment of Status to Green Card

Many nonimmigrant visa holders eventually are petitioned for a green card by a close family member who is a U.S. citizen or legal permanent resident (LPR), or petitioned by a U.S. company for a green card while they’re in the U.S. The problem: unless they are being petitioned for as an immediate relative, overstaying by even one day will result in not being able to adjust to green-card status in the U.S., and they must go back to their own country for U.S. consulate processing. Most people, when they have a choice, would rather go through adjustment of status here rather than do consulate processing as it is obviously less costly and less time-consuming.

However, there is quite a large population of nonimmigrant visa holders who have overstayed by more than 180 days in the U.S. The problem is, even if they have an approved I-130 family petition and not classified as an immediate relative, as soon as they set foot outside the U.S. to go back to their homeland to apply (if they want a green card – there is no other way), the 3- or 10-year bar will kick in. As a result, they will not be approved by the consulate for the final visa to return to the U.S. for 3 or 10 years, unless they qualify for the extreme hardship waiver, which is not easy to get. This is a very risky situation. Only those non-immediate relatives who have I-130 petitions with priority dates (filed dates) on or before April 30, 2001 will be spared this return journey to their country and can adjust their status here.

Good News for Overstayers

The good news is that, as we described in “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”, by marrying a U.S. citizen in a bona fide marriage, even an overstayer can remain here and adjust their status to green card. Indeed, being a spouse of a U.S. citizen is one type of immediate relatives mentioned above. Perhaps because that option is so readily available, many people don’t take being out-of-status on their nonimmigrant visas too seriously since they know in the back of their minds they could always marry a citizen in the future.

Of course, a true and bona fide boyfriend or girlfriend may not be available at a given time because one is not in love! If that’s the case, such a person may continue to live in the U.S. out-of-status, which is not easy at all since he or she won’t be able to obtain a work permit or social security number legally. A person here on an expired work visa, such as an H-1B, might have had a social security number issued previously when he or she was working in legal status, but once they become out-of-status, although the SSN might still exist the person cannot legally obtain work authorization. Thus, people who have been out-of-status for a long time eventually get tired of living “underground” like this and call us for help on a marriage case. At that time, we are of course happy to help and explain the options available, especially the potential risk of having a marriage that does not appear real. But for the most part, people are sincere and have a genuine citizen spouse willing to help them and the process to get the green card is smooth.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

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