Overstayed visa, marriage, divorce...

A

aridza

Registered Users (C)
Hi,

In 2001 I came to US with a student visa, met a guy, fell in love overstayed my visa, had a child, got married...
Anyway, I applied during my time studying for an extention, I was foolish and sent my I-94 form and my passport (they wanted original and that's all I had to sent quickly) anything they never sent me anything in return, my then husband (a USC) never filed for my papers as he wasn't making enough money, things got bad between us, then found out I was pregnant again but left the US to move back to France with my oldest child and my then husband's approval. It was in july 2007, my second child was born at the beginning of 2008
I finally got a divorce in 2012 which took very long as my ex husband didn't really keep in touch (maybe an email every 6 months at most) but for the past year he's finally come around and he's in touch with the kids on a more regular basis.
Our oldest child (who's 11) has a hard time with not seeing her father (it's been 7 1/2 years now) and I wonder if I'm under the 10 year ban or not.
Of course I overstayed my visa by a lot, but because I left the US with a different passport and another I-94 form (filled at the airport before boarding) I wonder if the immigration know that I overstayed. I really don't remember what was written on the I-94 with my F1 visa.
Is there a way to check that?
If I wait another 2 1/2 years before visiting the US is it possible to have trouble getting in the country? I've heard about the ESTA thing but to apply there's a question about having overstayed, if I say yes, I'm guessing that it will be denied.
I really would like to just be able to take my kids to visit there father, I definitly don't want to stay in the US but just visit once in a while, I've had the best and worst times of my life there!
My ex-husband can't come because he owes back child support for his oldest child so his passport is suspended.

Thank you
 
You probably don't have an unlawful presence ban because F-1 people are almost always admitted for "D/S" (Duration of Status), so accrual of "unlawful presence" does not automatically start (because there is no date on the I-94 to violate). Accrual of "unlawful presence" can only start when USCIS rules you to be out of status when you apply for a benefit, or when an immigration judge makes a final order against you. Neither of these things seem to have happened. No "unlawful presence" = no unlawful presence ban.

That said, I believe you cannot use VWP anymore so you will have to apply for a visa. And you may or may not get a visa even though you have no ban, due to your history. (Plus, even if you had a ban, the process for nonimmigrant visa would still be the same -- you would just apply for a visa.)
 
Hi,
So you think I would have to apply for a specific visa just to go for a 2 weeks visit?
That's annoying because in order to get a visa, I'd have to go to the Embassy in Paris (500 miles from where I live).
What visa would that be if not the ESTA program thing? should I still just try to file for through ESTA first and see from there? If denied then apply for something else?
And if by chance I'm not denied, what guarantee do I have that I'd be let in the country once at the airport and not placed in a cell with my kids?
Would having a another visa guarantee that?
 
aridza said:
Hi,
So you think I would have to apply for a specific visa just to go for a 2 weeks visit?
That's annoying because in order to get a visa, I'd have to go to the Embassy in Paris (500 miles from where I live).
What visa would that be if not the ESTA program thing? should I still just try to file for through ESTA first and see from there? If denied then apply for something else?
And if by chance I'm not denied, what guarantee do I have that I'd be let in the country once at the airport and not placed in a cell with my kids?
Would having a another visa guarantee that?
Click to expand...
It would be a B2 visa (the visa for personal visits). I believe you are not eligible for VWP because you have overstayed in the past. You can try to get ESTA I guess. Neither an ESTA nor a visa will guarantee you entry, but it's very unlikely to be denied entry at the border if you have a newly obtained visa.
 
Thanks, it's good to know that it's a possibility.
I'm not gonna do it right now because it's gonna be expensive, I'm just thinking about in the future, by the time it'll happen, my possible 10 year ban would be up anyways.
Before being able to do that, I'd have to apply for US citizenship for my youngest child, get both of them US and French passports so it's definitly not happening soon, I'd have to figure out how to get them US passports without their father co signing, no idea if the divorce degree giving me full custody over them will be enough.
 
aridza said:
Thanks, it's good to know that it's a possibility.
I'm not gonna do it right now because it's gonna be expensive, I'm just thinking about in the future, by the time it'll happen, my possible 10 year ban would be up anyways.
Before being able to do that, I'd have to apply for US citizenship for my youngest child, get both of them US and French passports so it's definitly not happening soon, I'd have to figure out how to get them US passports without their father co signing, no idea if the divorce degree giving me full custody over them will be enough.
Click to expand...
Well, like I said, you almost certainly have no ban. So whether you do it before or after 10 years is not relevant.

Your children are U.S. citizens at birth; they don't need to "apply" for citizenship. Getting proof of citizenship for your youngest child might take some work. It would be easiest with your ex-husband's cooperation, since you would need to get proof that your ex-husband was physically present in the U.S. (in any status) before the child's birth for a total of at least 5 years, including 2 years after turning 14. (You were with him in the U.S. for at least that many years, so may have enough proof yourself.) As for the passport part, if you have full custody, then only your permission is necessary. You can try to apply for a CRBA (Consular Report of Birth Abroad) and U.S. passport at the U.S. consulate in France now.
 
Well yes she is technically a US citizen as well, but I need to do the transcript of her birth at the consulate and fork out more money for that!
What would be reasonable proof of his presence in the US? What papers would I need to provide?
Of course the fact that 1 child was born in the US in 2004 and we got married in 2006 should help but what else?
 
aridza said:
Well yes she is technically a US citizen as well, but I need to do the transcript of her birth at the consulate and fork out more money for that!
What would be reasonable proof of his presence in the US? What papers would I need to provide?
Of course the fact that 1 child was born in the US in 2004 and we got married in 2006 should help but what else?
Click to expand...
Well, yes, that proves he was there at the time of marriage, but not necessarily that he was there before or after. Proof of lots of events that he was at in the U.S. from different dates helps. Also, really helpful would be stuff like high school transcripts, college transcripts, work pay stubs, or related things that establish he was there over a period of time. Some of those things might be hard to get without his cooperation. Maybe when you guys went through divorce there may have been documents there about where he was working or living during the years of your marriage. Maybe you have receipts or bills or pictures, etc. from when you guys were married that establish that he was in the U.S. at various points in time.
 
You must log in or register to reply here.
Top