Overstaying F-1 visa

M

matuleh

Registered Users (C)
I entered the united states legally in 1996 with a student visa.
In 2000 I quit my school with only 2 classes left to finish, and my visa expired, but I decided to overstay my visa for 5 years.
During my time in the U.S., I worked illegally,paid taxes and didnt commit any crimes (other than overstaying visa of course).

After 9/11 occurred, the government made an announcement saying that all people born in iran, syria, iraq etc....(I was born in iran, but I'm a swedish citizen) should come forward to register themselves.(NSEERS registration) I didnt go due to the fact that everyone responding to this, was being deported or detained (naturally I was scared).
I met my wife in 2005, moved to Sweden and got married in 2006.
Now we have a beautiful child and we are trying to move back to the states.
We went to the U.S. embassy in sweden and reported our daughter's birth (since my wife is a american citizen) and at the same time tried to apply for I-130. we got denied on the spot and I now banned for 10 years (8 year now since 2 have past since I left the states).
what are our options? I know that we can fill out the I-601 waiver, but will that really help? how much of a chance do we have? the people at the embassy told us that sweden is very safe, in terms of medical and health benefits they are one of the best, and our chances were as low as 20%. Its hard to poof a hardship.

here is what I found in the immigration forums:

"...You should show your evidence of the I-94 where it says D/S to an attorney. The point with this is that if you have D/S on entry, the overstay only begins when the DHS or IJ declares one to be out of status. It does not start when you stop school, or etc. as described in that DOS posting. Since you left before anyone declared you to be out of status, there should be no overstay. Now the problem is proving that to the embassy.

I am sure the DOS officer at the embassy just said, well if you are saying you overstayed, no sense in me contradicting you. One more person I can deny.
on your forum, I was told that because I wasn't found inadmissible by a judge, it wasn't necessary for me to file a waiver at all. is this true?

Can I call the embassy and tell them what I found?
Please help us we dont know what to do
 
overstaying F- visa

Thanks for you your kindness.
Well I lost my swedish passpord with the I-94 card in 1997.
I do have my original school I-20, and my I-94 nummber. I asked my school in L.A about my I-94 copy, they didnt have it . I just have the I-94 nummber.
 
As far as I know the information is correct, that as an F-1 student you accrue no unlawful presence until a determination has been made by USCIS that you were out of status. A determination would have been made e.g. if you had applied for reinstatement and been denied for example. There are many references to this on the internet and you can also find the law in the INA. I'm not even sure you need the I-94 copy because all F-1 visas are issued for D/S I believe. But do contact an attorney to ask for the best course of action. By the way, your visa expiration date has nothing to do with it. A visa is only an entry document. What matters is when the status violation occured, if the I-94 has a specific date, and if it doesn't have a date, if USCIS has determined you're out of status.
 
Thanks to everyone that help me with valuable information. I contacted the Law Offices of Mr. Rajiv S. Khanna, but currently they are accepting cases limited to U.S. business immigration, business law and complex immigration matters.
Can anyone tell me please where I can find a lawyer that I can work with from Sweden?

Thank you very very much
 
overstaying student visa

I found a international immigration lawyer, and she wrote me:

"Thank you for contacting the Law Offices of xxxxxxx. Country
conditions (Sweden) is one factor in addressing "extreme hardship" to your
U.S. citizen spouse. You will not even need to address it.

You can always file an I-130. If you have a legitimate marriage (which it
sounds as if you do), the I-130 should be approved. Don't be discouraged by
consular officers who don't understand the law.

In typical non-D/S situations, when an alien overstays his/her I-94 date by
more than 1 year, when s/he leaves the U.S., he/she triggers the 10-year bar
for unlawful presence. Since you were D/S and no one pronounced you to be
unlawfully present, there is no unlawful presence bar. It would be just a
matter of briefing it to the Consular Officer. You don't need an I-601
waiver. I can also obtain a copy of your I-94 through the federal
government.

I don't think it's wise to talk about your case to the consular officers at
the American Embassy.

To obtain a copy of your I-94, brief regarding "no unlawful presence bar",
and obtain green card, my fee would be $xxxxx with $xxxx advance costs.
Filing fees to the government and medical examination fees will be extra and
be paid directly by you.

She said that my unlawful employment claimed us citizen is not a problem.

I'm confuse now to what to do.

please help me.

thank you
 
I do have my original school I-20, and my I-94 nummber.
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that should be enough (as well as evidence that you were in fact in the US on F-1 visa. You don't need I-601 waiver, because the ban doesn't apply to you because of D/S in your I-94. You didn't accumulate any illegal presence unless you applied for something with USCIS after you fell out of status, and they have found you to be illegally present.

And that's exactly what the lawyer told you - and it's the truth.
You can read up on D/S in I-94 yourself, just google it.
The best source - www.travel.state.gov

Why was your I-130 denied?
 
LucyMO said:
that should be enough (as well as evidence that you were in fact in the US on F-1 visa. You don't need I-601 waiver, because the ban doesn't apply to you because of D/S in your I-94. You didn't accumulate any illegal presence unless you applied for something with USCIS after you fell out of status, and they have found you to be illegally present.

And that's exactly what the lawyer told you - and it's the truth.
You can read up on D/S in I-94 yourself, just google it.
The best source - www.travel.state.gov

Why was your I-130 denied?
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Yes, on the spot. The officer said I'm ban for 10 year because: I didnt do the NSEERS registration(he said that I could be a terorist and our goverment was looking for people like me(it made me sad), droped my school wiyh only 2 classes left, and I should not do the waiver, because my chanses are as low as 20%. I also wrote on the I-130 form the list of all my employment for them. Am I ban for life now since I said on the I-9 form that I'm a citizen? Do you think that the officer dont know the law, because in that case I should be ban for life?
 
matuleh said:
Yes, on the spot.
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That's prima facie evidence that the officer doesn't know the first thing about the law, since even if you are subject to the 10-year bar you can still get an approved I-130.

I didnt do the NSEERS registration(he said that I could be a terorist and our goverment was looking for people like me(it made me sad),
Click to expand...

Actually, this is likely to be a problem.

I should not do the waiver, because my chanses are as low as 20%.
Click to expand...

So what?

Am I ban for life now since I said on the I-9 form that I'm a citizen?
Click to expand...

That's an interesting area of law. It's not a claim of US citizenship for state, federal or immigration benefit.

Do you think that the officer dont know the law
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I'm certain of that.
 
I-130 can definitely be approved despite the ban. It simply establishes your eligibility for a visa based on a relationship to a USC or LPR (a basis for immigration, that is).
 
here is some info I found with some lawyers and I would like it to share it:


".....It's true that you did not accrue any unlawful presence because you entered with a student visa and USCIS never told you that you were out of status.
This means that you are not facing a 10-year bar and do NOT need a waiver.

While a false claim of US Citizenship does make you inadmissible to the US
(and there's no waiver for that offense), the US Courts of Appeal are split
as to whether checking the box on the I-9 form to indicate that you are a US
citizen or national is a false claim to US Citizenship. In the Ninth
Circuit, which includes California where I practice, checking the box on the
I-9 does not constitute a false claim to US citizenship.

I don't think that your failure to register for NSEERS affects your
admissibility/eligibility for a visa, but would have to do additional
research on this issue to make sure.

Given your situation, my advice would be to retain a lawyer who can submit a
detailed legal brief in support of your application. Our feel for filing a
regular I-130 with consular processing (without the additional complications
presented by your case) is $xxxxxx. Since we would have to write a brief for
you as well, our fee would be $xxxxxx. Please let me know if you would like
to retain us to assist you. If you would like me to do additional research
on the NSEERS issue, I could also charge you hourly. My hourly rate is $xxxxx
and I estimate that it would take 1-2 hours.

other said:
Thank you kindly for contacting our firm.

Unfortunately, based on current immigration law, there isn’t anything we can do to help you at this time. Of course if there are any changes in immigration law, we will be sure to get in touch with you.

other said:
I don’t know if the NSEERS will be brought up because you are a Swedish Citizen. I would not mention the I-9 form EVER again- a false claim to United States Citizenship is a permanent bar- that means you will NEVER receive anything from the U.S. Government if you mention this to any of them- do you understand? You also have a ten year bar even if you were never before a Judge but you should never bring that up. I have had a lot of cases where people kept quiet and the Officer never said anything- I don’t know if you told them or what. Either way- you could try again because you have nothing to lose otherwise wait another 8 years and then it should be no problem.

I gues I......:confused:
what you guys think?
 
matuleh said:
what you guys think?
Click to expand...

They're all incorrect in part. But the first one seems like the most informed. I'd retain him or her, provided that more research is done on NSEERS and the failure to register. Your citizenship does not eliminate your registration.
 
I agree that the first person seems much more knowledgeable than the other two. I'm troubled that the third lawyer appears to advise you to conceal facts - although he/she may just mean not to volunteer the information (which I agree with). I don't find any place on I-485 where it asks if you've made a false claim to citizenship and it seems unlikely to me that USCIS would examine your I-9s (?). But your permanent residency can be revoked later, so if they don't find it immediately it doesn't mean it won't be an issue later. The third lawyer also seems to think you're subject to a ten year bar, for some reason. Either he doesn't understand the law or he knows more about your situation than we do.

I think this is the opinion that the first lawyer may be referring to. The I-9 form actually asks if you're a "US citizen or US national" ... so you may have intended to claim to be born in American Samoa (pop 57,633) or Swains Island (pop 37) and not to be a US citizen. Which seems extremely likely to me that's what you've meant. ;)
 
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austriacus said:
I agree that the first person seems much more knowledgeable than the other two. I'm troubled that the third lawyer appears to advise you to conceal facts - although he/she may just mean not to volunteer the information (which I agree with). I don't find any place on I-485 where it asks if you've made a false claim to citizenship and it seems unlikely to me that USCIS would examine your I-9s (?). But your permanent residency can be revoked later, so if they don't find it immediately it doesn't mean it won't be an issue later. The third lawyer also seems to think you're subject to a ten year bar, for some reason. Either he doesn't understand the law or he knows more about your situation than we do.

I think this is the opinion that the first lawyer may be referring to. The I-9 form actually asks if you're a "US citizen or US national" ... so you may have intended to claim to be born in American Samoa (pop 57,633) or Swains Island (pop 37) and not to be a US citizen. Which seems extremely likely to me that's what you've meant. ;)
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Hi, I found some info from a lawyer that is a family member to my wife. After I heard his opinion we got a bit of cold to go forward with our case. I want to thank you all with your kind and warm responses. I wish I had new about this forum before I went to the embassy with my I-130.

The family lawyer said:
I'm glad to help in any way I can, if only to serve as a second or third (or more) opinion. Here's my background. I am currently a supervisor at the Los Angeles Asylum Office at the Department of Homeland Security. Before that, I worked as a private immigration attorney for 5 years with various firms. I spent 2 years at the office of xxxxxxxxx, whom you may have heard of. I don't know if you already consulted with his firm. I have done many consultations over the years. I need to tell you up front that my opinions are my own, and do not represent the views of the U.S. government. They are not official in any way. And our communication does not create an attorney-client relationship. I'm just doing a favor for my cousin, X. OK, here goes. If he had remained in the US and you two got married here, the overstay would not have been an issue. He could have received his green card in the US. The problem is that he left. When a person has overstayed their visa, normally they would not beable to get a green card. But there is an exception if the person is being petitioned by an immediate relative who is a U.S. citizen. In his case, you are the immediate relative who is the U.S. citizen, so he would not have been banned from getting a green card. But when a person overstays the visa for more than 1 year, then leaves and tries to re-enter the country, even with a valid visa (in his case it would have been an immigrant visa because of his marriage to you)he is banned for 10 years. That's known as the 10-year bar for unlawful presence. There is a waiver, which you've heard about, called the I-601. He has to show extreme hardship to a spouse, parent, or child who is a US citizen or lawful permanent resident (green card holder). In the cases I handled with xxxxx, this usually means there is a US citizen or green card spouse or parent or child in the US, and the person in need of the waiver is outside the US. So there is separation. And if the US party needs the person outside the US to support them, take care of them, etc. that could constitute extreme hardship. In your case, there is no separation. You and your child are living in Sweden. You have not indicated whether he has any other relatives in the US (i.e. parents or other children --cousins, uncles,etc. don't count as "immediate relatives"), but I'm guessing not. If you're able to live well in Sweden, you should remain there. I do not think it's a good idea for you and the child to move back to the US just to try to qualify for the waiver, unless there is a need for you to do so. For example, you or your child have a serious medical condition, and you can only get care in the US for that medical condition. Like you said, Sweden has pretty high standards, so it would be hard to show that you couldn't get treatment for any medical conditions in Sweden. Is there a reason you need to return to the US? To take care of a relative, for instance, and you are the only one that can care for that relative? If you need to be in the US to take care of that relative, and you need your husband to help you in your duties, that can be considered "extreme hardship" to you too. But it has to bewell-documented. The relative has to have a serious condition, and you have to show that only you (and not some other relative in the US) are able to help this relative. And you have to show that since you're helping your relative full-time, you need your husband's help to raise your child and support the family. It's difficult, but not impossible. It's true that he's not considered "out of status" unless declared soby DHS or an IJ. Every embassy has a DHS section, so it's pretty trivial for them to declare your husband "out of status." Merely checking the box on an I-9 form is not enough to be considered to have made a false claim of US citizenship. Failure to register for NSEERS would not make him ineligible for the visa. Even now, it's not a basis for deportation. But if they register, and it's discovered they are not in lawful immigration status, the fact of not being in lawful status is a basis for deportation. But not failure to register. In short, you can still file the I-130 (visa petition) to sponsor him for the visa, but he won't be issued the immigrant visa due to the10-year unlawful presence bar. You can try for the waiver, but it may not succeed unless you have really compelling hardship. The alternative is waiting out the 8 years. I wish I had better news for you. At the very least I saved you $300 for a XXXX consultation (in case you hadn't already consulted with him).

Do I still need the waiver? I got many replys that I dont:confused:
What sould I do. Please give me a opinion.
Thank you very much
 
It's nice that the DHS supervisor basically agrees with us. $300! :eek: Maybe I should have a career change to immigration lawyer!

Anyway, what he may have missed is that it's true every consulate can make this determination that you're out of status, however, you only start accrueing unlawful presence on the day that you were declared out of status. If the consulate, DHS, etc. tell you now (after you've left) that you have been out of status, you have not accrued a single day of unlawful presence and are not subject to the bar. The unlawful presence is not retroactive from when DHS or an IJ make a determination.
 
You got your money's worth with that advice. :rolleyes:

First, as austriacus pointed out, you only accumulate illegal presence once DHS makes that determination and you cannot have it applied retroactively. Second, the NSEERS failure to register is a far greater problem than being out of status.

I'd find a real lawyer, not one who pretends to be one.
 
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