Impact of Visa overstay on I-130.

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blkhawk

Registered Users (C)
Hi,

My wife came to the US in 2005 and overstayed her I-94 more than 6 months but less than a year. She left the US voluntairly.

My understanding is that she's now barred from entering the USA for 3 years from the day she left.

She's now far in the IV process and her interview will be scheduled at anytime now.

Do you think she will be denied a visa? Should I delay the consular processing until the 3 year ban is lifted (March 2010)?

any advice will be appreciated.

Thank you.
 
The consulate will pick that up themselves. If not, just mention it to them :)

blkhawk said:
My wife came to the US in 2005 and overstayed her I-94 more than 6 months but less than a year. She left the US voluntairly.
Do you think she will be denied a visa? Should I delay the consular processing until the 3 year ban is lifted (March 2010)?
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Triple Citizen said:
The consulate will pick that up themselves. If not, just mention it to them :)
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The issue is whether they will deny the case because of the interview occurring before the 3 years are up, or delay it and resume processing when the 3 years are done. If denial would be their course of action, it won't be so simple as just letting them "pick that up themselves"; it would be important to delay the case beyond the 3 year bar.
 
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What I meant was, once the consulate picks it up, they will probably inform the beneficiary that they cannot approve an immigrant visa until a specific date has passed. In my experience, State Department officals are far more logical and intelligent that USCIS/ICE/CBP officials.

Jackolantern said:
The issue is whether they will deny the case because of the interview occurring before the 3 years are up, or delay it and resume processing when the 3 years are done. If denial would be their course of action, it won't be so simple as just letting them "pick that up themselves"; it would be important to delay the case beyond the 3 year bar.
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Jackolantern said:
The issue is whether they will deny the case because of the interview occurring before the 3 years are up, or delay it and resume processing when the 3 years are done. If denial would be their course of action, it won't be so simple as just letting them "pick that up themselves"; it would be important to delay the case beyond the 3 year bar.
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If they ever deny the application, will I have to start all over with a new I-130?
Thanks,
 
The question is not about if they deny it. They have to deny it if adjudicating it before the 3 years are up. The point of discussion here is whether you or the State Department will be the party that delays the interview so that the 3 year window is up.

blkhawk said:
If they ever deny the application, will I have to start all over with a new I-130?
Thanks,
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Triple Citizen said:
What I meant was, once the consulate picks it up, they will probably inform the beneficiary that they cannot approve an immigrant visa until a specific date has passed. In my experience, State Department officals are far more logical and intelligent that USCIS/ICE/CBP officials.
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Thanks for your input.

Perhaps I shouldn't rely on State Department intelligence :) and assume they are going to catch that and delay my wife's application until the 3-year bar is lifted. I probably need to be pro-active about it. I hate starting the process all over in case my wife's application is denied.

I came across a case on this forum where parents IV was denied due to visa overstay for more than a year. The applicant wasn't advised or warned about it. the parents visa was simply denied.
 
Triple Citizen said:
Much safer route. Depending on the consulate involved, you might not even get an interview date before March which makes this argument obsolete :)
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True, I am just being cautious. Right now, I have control over it since NVC is waiting on me to send the IV application and supporting docs. I have already paid the $400 IV fee.

I wonder how long it takes NVC to schedule an interview once they have received and processed the IV application. That would tell me when to wake up the IV process.
 
Triple Citizen said:
The question is not about if they deny it. They have to deny it if adjudicating it before the 3 years are up.
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DOS cannot deny the I-130; it is a USCIS proceeding and all they can do is refuse to issue the visa and return the petition back to USCIS to revoke. In the case of a 3-year bar the most likely course of action is to refuse to issue the visa until the 3 years have passed.
 
In the case of a 3-year bar the most likely course of action is to refuse to issue the visa until the 3 years have passed
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Would NVC freeze the process or the Consulate abroad?
 
You are correct. DOS has nothing to do with the I-130. My earlier denial comment was with regards to issuing the immigrant visa.

TheRealCanadian said:
DOS cannot deny the I-130; it is a USCIS proceeding and all they can do is refuse to issue the visa and return the petition back to USCIS to revoke. In the case of a 3-year bar the most likely course of action is to refuse to issue the visa until the 3 years have passed.
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TheRealCanadian said:
DOS cannot deny the I-130; it is a USCIS proceeding and all they can do is refuse to issue the visa and return the petition back to USCIS to revoke. In the case of a 3-year bar the most likely course of action is to refuse to issue the visa until the 3 years have passed.
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They probably won't deny the I-130, because the I-130 is to determine whether or not you would be a qualifying family member to petition for her. I don't see any problem with THAT. The denial may come when she finally has her interview, and they tell her that since she overstayed her VISA and voluntarily left the USA after the fact, she is subject to the 3 year bar. However, the Officer at the Consular Office could offer her a waiver of inadmissibility so she can re-join you.

I'm not an attorney. I just speak from experience.
 
zonryza said:
They probably won't deny the I-130, because the I-130 is to determine whether or not you would be a qualifying family member to petition for her. I don't see any problem with THAT. The denial may come when she finally has her interview, and they tell her that since she overstayed her VISA and voluntarily left the USA after the fact, she is subject to the 3 year bar. However, the Officer at the Consular Office could offer her a waiver of inadmissibility so she can re-join you.

I'm not an attorney. I just speak from experience.
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I don't expect my famil's IV apointment to be scheduled until February at the earliest. USCIS hasn't approved my kids's I-130's yet. So the 3-year bar will be close to expire by the time a visa appointment is scheduled.

I really wish someone with a similar case could share their experience. like I said before, I have come across a post on this forum about parents of a US citizen that were denied IV due to visa overstay. But the applicants didn't have a way to prove when they left the USA.

Luckily, I have saved my wife's boarding passes (for the trip when she left the US) and did a color scan of her I-94 before it was surrendered to the airline authorities at the gate.
 
It makes sense to do what you can to delay the case beyond the March 3-year cutoff, as long as you can arrange the delay while keeping the case alive.
 
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