Are there circumstances where an overstay will not be held against you?
No. I guess a nice way to do it is to hire an attorney like me to get them to forget about that overstay.
What about minors or other circumstances perhaps?
So, minors. If you overstay as a minor it doesn’t actually count against you. So, you cannot accrue a legal presence in the United States if you’re under 18. So that means that if you leave and come back it should be okay because that 3 and 10-year bar does not kick on and the idea behind that is that if you’re under 18 you don’t have control over whether you can leave and come back to the United States, so they will not hold it against you, but you need to apply for another visa probably.
When is a waiver of the three and 10-year time bars granted?
Again, as I said earlier, it depends on what you’re applying for. If you’re applying for a nonimmigrant visa then you have to apply for the waiver in front of the consular officer in the embassy where you are, but if you actually are applying for an immigrant visa, then if have qualifying relatives who is a US citizen, a child who’s a US citizen or permanent resident, and your admission into the United States will cause hardship to them, then you can apply for a waiver of that inadmissibility using an I601 form. So, you can apply for that waiver of inadmissibility in the United States, but you do have to prove that if you actually don’t come to the United States, you’re qualifying relative would be in trouble. So, what are some of the hardship criteria? If the person is unable to financially support you. If the qualified elective has a job that he cannot leave in the United States. For example, I have a case right now where the lady is a masseuse and her husband is in a conservative county in the Middle East where masseuses are looked at in a derogatory way. So, she can’t really work as a masseuse in his country. So that financial hardship will be one of the things that we will use to say, “Well, she won’t be able to go work over there, so you need let him come to the United States instead of having her go over there. So financial reasons is another one. She has medical issues. So medical issues are a big thing. You have the right as a US citizen to be able to be looked at by the doctors that you choose. So, if treatment is not available, for example, psychological treatment is not available in the country which is where the person is supposed to relocate, then that would be another hardship. The separation is another hardship that they will get. You have a right to be with your family in the United States and if you can’t be with them then that’s a hardship that can be avoided by allowing that person to come into the United States instead of you going back. So, if your whole family lives here and you have to leave all of them to go and live with your husband or your wife overseas then that would be a problem. So those are the hardship criteria that the United States government uses to actually assess whether that person will come back.
If I qualify for a bar waiver what do I need to do?
As I said that inadmissibility will not kick in until you leave the country. So technically you will not know if you’re subject to the bar until you go in front of the consulate and the consulate makes a determination for your inadmissibility. What usually happens is you’re going to apply for the immigrant visa, then the consular officer is going tell you that you can’t come back to the United States for three or 10 years because you overstayed your visa. So, what that consular officer will give you, they’ll give you a piece of paper that said you have to go apply for a waiver in the United States for USCIS to waive that inadmissibility for you. So, let’s say you apply for the visa waiver and the USCIS approves it, then that application approval gets sent to the consular of post saying, “Hey, we looked at his case, we waived inadmissibility. You need to let that person into the United States.” If that gets denied then the immigrant visa gets denied, but you can actually reapply for the waiver before you try to come back in. So, there are ways around the denials of it, but if gets approved, they let into the United States.
If I have overstayed my visa should I immediately leave the United States?
It would help. The way that I tell my clients is that “Hey, I can defend you better in the United States than outside the United States.” So if someone comes in and overstays by one or two days, yeah I would say, “Okay, go ahead and leave,” but if they’re overstaying by years then I will need to explain to them that, “If you go out you’re pretty much going to be screwed and you’re going to be subject to the bar.” So either if you overstay by a couple of days, you have extenuating circumstances, all of that stuff, I wouldn’t worry about it, but if you’ve been overstaying for a very long time and you have possible relief from that bar, I would not recommend that you leave the country and try to get some sort of relief here in the United States, for example, by marrying someone or apply for asylum if you qualify or any sort of status. So, it really depends on the circumstances.
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