Filing for mother GC when she overstayed 10 yrs ago

ASHTON KUTCHER

Registered Users (C)
Hello just wanted to confirm if my mother overstayed vacation 11 yrs ago will affect her GC interview overseas , overstayed time was 2 yrs due to medical issues, she returned back several times with the same visa and had no problems entering no questions asked etc.
Her visa expired in 2008 which I applied for a renewal and all went well she got her renewal for another 10 yrs I mentioned to the officer she had medical issues which there was a Dr letter to support this and he said that's fine these things happen so no problem and he issued the visa.
Next week I will be submitting her 1-130 just want to make sure during her interview she don't run into any problem with the overstay back in 2000, pls confirm if anyone has answers for the above questions.
Thanks Ash
 

falcyon

Registered Users (C)
Hello just wanted to confirm if my mother overstayed vacation 11 yrs ago will affect her GC interview overseas , overstayed time was 2 yrs due to medical issues, she returned back several times with the same visa and had no problems entering no questions asked etc.
Her visa expired in 2008 which I applied for a renewal and all went well she got her renewal for another 10 yrs I mentioned to the officer she had medical issues which there was a Dr letter to support this and he said that's fine these things happen so no problem and he issued the visa.
Next week I will be submitting her 1-130 just want to make sure during her interview she don't run into any problem with the overstay back in 2000, pls confirm if anyone has answers for the above questions.
Thanks Ash

Since you're filing for her as a Citizen and that fact that she entered the country legally before the overstay, you should be fine.
 

Jackolantern

Registered Users (C)
Since you're filing for her as a Citizen and that fact that she entered the country legally before the overstay, you should be fine.

More importantly, she entered legally with a visa, not the visa waiver program which is problematic if there was an overstay.
 

baikal3

Registered Users (C)
Hello just wanted to confirm if my mother overstayed vacation 11 yrs ago will affect her GC interview overseas , overstayed time was 2 yrs due to medical issues, she returned back several times with the same visa and had no problems entering no questions asked etc.
Her visa expired in 2008 which I applied for a renewal and all went well she got her renewal for another 10 yrs I mentioned to the officer she had medical issues which there was a Dr letter to support this and he said that's fine these things happen so no problem and he issued the visa.

Are you saying that she overstayed her visa for 2 years, then left the U.S., and subsequently applied for and was granted another visa? If yes, did she disclose the fact of her 2 year visa overstay on her subsequent visa application(s)?

If the overstay was disclosed, I don't understand how a new visa could have been granted, given that an overstay of more than one year should have triggered an automatic 10 year bar to admissibility. If the overstay was concealed, this presents its own set of problems...
 
Last edited by a moderator:

Jackolantern

Registered Users (C)
This thread should be in the Family Based Green Cards section. Moderators can you move it?

EDIT: It's been moved!
 
Last edited by a moderator:

ASHTON KUTCHER

Registered Users (C)
Are you saying that she overstayed her visa for 2 years, then left the U.S., and subsequently applied for and was granted another visa? If yes, did she disclose the fact of her 2 year visa overstay on her subsequent visa application(s)?yes this was disclosed and as I mentioned I accompanied her for the same reason and the officer said these kind of things happen, he also noticed that I lived here and we started chatting a little and that was it he then told her enjoyed her next vacation with your son.

If the overstay was disclosed, I don't understand how a new visa could have been granted, given that an overstay of more than one year should have triggered an automatic 10 year bar to admissibility. If the overstay was concealed, this presents its own set of problems...
answer is above, she also had several Dr letters showing he reason for overstay.

Ash
 

baikal3

Registered Users (C)
answer is above, she also had several Dr letters showing he reason for overstay.

Ash

So you are saying that she did disclose her overstay when making a subsequent visa application, right? That sounds very strange to me.
INA §212(a)(9)(B)(i)(II), which created the 10 year bar to admissibility for unauthorized stay of over a year, does not provide any exceptions based on the ill health of the alien. In case of a medical issue that requires staying beyond initially authorized period of admission, the alien is supposed to apply for an extension of his/her admission status, which your mother did not do. It sounds to me like the consular office who issued your mother a subsequent visa simply disregarded the law, but I think the issue may and probably will come up again during a green card application process. It looks to me like, based on her overstay, your mother is subject to the 10 year bar to admissibility, meaning that during that 10 year period she is not eligible for either a non-immigrant or immigrant visa. It is possible to apply for a waiver to the INA §212(a)(9)(B)(i)(II) 10-year inadmissibility bar for certain family-based green card applicants, but, as far as I understand, only spouses and children (but not parents) of U.S. citizens/permanent residence are eligible to apply for such waivers.
See http://www.americanlaw.com/exclud9A.html
 

Jackolantern

Registered Users (C)
So you are saying that she did disclose her overstay when making a subsequent visa application, right? That sounds very strange to me.
INA §212(a)(9)(B)(i)(II), which created the 10 year bar to admissibility for unauthorized stay of over a year, does not provide any exceptions based on the ill health of the alien. In case of a medical issue that requires staying beyond initially authorized period of admission, the alien is supposed to apply for an extension of his/her admission status, which your mother did not do.

Applying for an extension would have been the right thing to do, but my understanding is that an overstay is forgiven if sufficient evidence is presented to the satisfaction of the immigration official that there were circumstances beyond the individual's control that prevented leaving the US on time. It looks like that is what happened here, so she should be OK.
 

baikal3

Registered Users (C)
Applying for an extension would have been the right thing to do, but my understanding is that an overstay is forgiven if sufficient evidence is presented to the satisfaction of the immigration official that there were circumstances beyond the individual's control that prevented leaving the US on time. It looks like that is what happened here, so she should be OK.

You may be right, but given the existence of INA §212(a)(9)(B)(i)(II), there would have to be some other law on the books providing for the possibility of overcoming the 10 year bar to admissibility created by the (admittedly draconian) Illegal Immigration Reform and Immigrant Responsibility Act of 1996 in cases of overstay over 1 year due to some extenuating circumstances. If there are such provisions, I'd like to know what they are.
 

Jackolantern

Registered Users (C)
You may be right, but given the existence of INA §212(a)(9)(B)(i)(II), there would have to be some other law on the books providing for the possibility of overcoming the 10 year bar to admissibility created by the (admittedly draconian) Illegal Immigration Reform and Immigrant Responsibility Act of 1996 in cases of overstay over 1 year due to some extenuating circumstances. If there are such provisions, I'd like to know what they are.

I couldn't find anything specific for this scenario, but in general* the law doesn't penalize people for matters beyond their control. Consider how absurd it would be to charge someone with trespassing for being inside somebody's fenced-in backyard ... after they were kidnapped and thrown into the back yard with their hands and feet tied up. Or to impose the 10-year bar on somebody whose overstay was due to being locked up in a basement for 2 years by kidnappers.

Of course, there often is debate over whose fault the circumstances were and whether you should have still done XYZ in those circumstances, but once they agree with your position on the circumstances they normally don't penalize you.


*civil matters where financial loss or injury occurred to others is very different -- there are many cases where you'll have to compensate the affected people even though it wasn't your fault, like if a hurricane blows down your tree and it crushes your neighbor's car.
 

TheRealCanadian

Volunteer Moderator
The problem in this case is that the 3/10 year bars are non-discretionary. Short of applying for and receiving a waiver, there's no way to get around them.
 

Jackolantern

Registered Users (C)
The problem in this case is that the 3/10 year bars are non-discretionary. Short of applying for and receiving a waiver, there's no way to get around them.

The trick here is that although the 3 year/10 year bar is non-discretionary in the event that 180 days/1 year of unlawful presence has accrued, the counting of days of unlawful presence involves some discretion. For example, somebody who applied for a change or extension of status after I-94 expiration may avoid having unlawful presence being accrued if USCIS is satisfied that the filing delay was due to circumstances beyond the individual's control.

So the issue here is whether staying beyond her I-94 date would be counted as unlawful presence in the first place, given that they have agreed that it wasn't wilful. If it doesn't count, there is no need for a waiver.

But at this point, what's done is done (or perhaps in this case, not done) ... all she can do is go ahead and apply and hope that they won't make an issue of her overstay in 2000. They probably won't, given her history of being admitted multiple times since then.
 

ASHTON KUTCHER

Registered Users (C)
Thanks all that commented on my concerns , little still confused, my concern is if she gets a denial on the GC , will they cancel her current visa? this would be a problem as she now is locked out both ways.

After speaking to an old attorney here in Houston he suggested I file her GC here as these overstays are always forgiven and all will be completed in as little as 4 mths, only problem it is approx $ 1500 here.

Not sure which way to go but doesn't want take the risk getting her visa canceled , anymore suggestion is appreciated.
Thanks Ashton
 

Jackolantern

Registered Users (C)
Thanks all that commented on my concerns , little still confused, my concern is if she gets a denial on the GC , will they cancel her current visa? this would be a problem as she now is locked out both ways.

Whether her GC is approved or denied, they almost surely will cancel her tourist visa if she shows up for the consular interview or files for adjustment of status in the US, as either action is a strong indicator of immigrant intent.

After speaking to an old attorney here in Houston he suggested I file her GC here as these overstays are always forgiven and all will be completed in as little as 4 mths, only problem it is approx $ 1500 here.
That is not necessarily true. Filing for adjustment of status doesn't forgive overstays for people who have triggered the 3-year or 10-year bar by leaving the US after their 180+ days or 365+ days of unlawful presence. But the question here is whether she actually had that many days of unlawful presence -- she might not, if they don't count days when she was unable to leave the US due to circumstances beyond her control.
 
Last edited by a moderator:
Top