H4 after volountary departure

C

callistoss

New Member
Hello, I would like advice on the following situation:

My boyfriend will leave the USA after being in removal proceedings. He choose voluntary departure so from what we understood his VISA overstay (visitor visa) will not produce any 10 year ban from re-entering.

We will get married in summer 2008. I am currently in the USA with H1B VISA.

After we get married, can he apply for H4 VISA at the USA consulate in his country and come back in the USA? How likely is it that they will give him the VISA considering the overstay and the voluntary departure?

We contacted two lawyers and they had differing opinions, one said it will be very hard to get that visa, the other one said it is likely that it is given. Does USCIS consider the fact that a husband and wife would be separated if the VISA is not approved?

Any suggestion will be greatly apprechiated.

Thank you.
 
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How long was the overstay? The re-entry ban is automatic and it does not matter whether someone departed voluntarily or not.
 
The US barely cares that a US citizen husband/wife is separated from their spouse, and many waiver cases for that are denied. As for foreigners, you guys can stay in your home country as far as the US is concerned. They you won't have to be separated. If he overstayed more than 6/12 month, the 3/10 year bars have attached, no matter how he departs. If not, there is no bar, and since H4 is dual intent, they shouldn't use immigrant intent against him (overstay is considered immigrant intent). As long he is not subject to a bar, give it a try. You should be able to get the visa. If he is subject to the bar, you will have to wait.
 
How long was the overstay? The re-entry ban is automatic and it does not matter whether someone departed voluntarily or not.
Click to expand...

The overstay was for more than 12 months, but by reading previos cases about voluntary departure, I am pretty sure that there is no ban if someone is granted voluntary departure. The ban is only for those people who are removed (deported) from the USA.

If you have any document that proves me wrong I would be happy to read it. Thank you.
 
If his I 94 has D/S (usually it is on F and J visa) instead of certain end date, then he start accureing overstay from the day the DHS/Judge make the finding.
Look for 212 (d) (3) wavier.
 
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