Again, it depends on what you’re trying to do. If you’re here, for example, on a B-1, B-2, which is a visitor visa and you need more time to stay in the United States, then you can apply for an extension status, which is an I539, you submit that application and as I said earlier, as long as you do it before the expiration date on your I-94 you should be okay. As long as that extension of status is pending, you’ll be okay, you will not be penalized for it. So let’s say someone comes in on a B-1, B-2 and they want to go to school and the school application is taking a long time, you can apply for an extension of status, it doesn’t matter, as long as that extension is pending, then we’re not worried about you, you’re not going to overstay. But some B-1, B-2 visa holders, for example, visa holders on a Visa Waiver Program are not allowed to extend their status. That’s per statute. So, the United States says, “Okay, we’re going to waive the requirement for you to actually have to be here in the United States on a visa.” So you don’t have to go to the consulate to get a visa, but the United States and your country that if you come here to the United States on the visa waiver program, you’re not going to be able to extend your status and then if you cannot your status, that means that you have to leave the country right before that authorized period of stay actually expires. So, some people can extend on a B-1, B-2, some people cannot per statute. So, the question that said extensions of my type of visa allowed, means that you’re trying to stay in the same category. So yeah, you can extend your status if you’re staying in the same category. You can also switch to a different status if you have a physical visa in your passport. If you don’t on the Visa Waiver Program you have to leave the country and come back and apply for the change status or an extension overseas of doing it here in the United States because you just can’t. I’m done with that answer.
Does the type of visa I had affect the likelihood of being able to stay? If I’ve overstayed a visa and married a US citizen can I successfully apply for a green card?
Yes. If you’re married to a US citizen, you’re an immediate relative of a United States citizen, so if you apply to adjust your status you’re allowed to be here if you’re married to a US citizen. You need to be in status at the time, and then your adjustment of status would probably be approved If you actually don’t have any other ways and other reasons for inadmissibility or deportability like something criminal in your background or you did something that you’re not supposed to do here in the United States. So, if you’re married to a US citizen, you’re an immediate relative and yes, you would be able to adjust.
I’ve been called to immigration court because of being in the US unlawfully after an overstay. How should I handle this?
Hire a lawyer. It really depends. So, the biggest question that a removal defense attorneys like myself will ask, “Do we have any sort of relief from removal that we can apply for once you’re in front of the immigration judge.” So, let’s say, I represent a lot of F1 students. An F1 student, he came here, overstayed his visa, he’s not going to stay in the United States. If he’s staying in the United States because he doesn’t want to… but he’s not married to a US citizen, she’s not married to a US citizen, there is no other form of relief like asylum available or anything like that. Well, what we would usually do is ask for something called volunteer departure. So, we go to the immigration judge and say, “Hey, this person overstayed is remorseful about him overstaying. He doesn’t qualify or she doesn’t qualify for any sort of relief from removal. Let them leave without having a removal order on their head,” because once you have that removal order that means if you’re coming back into the United States down the road it’s going to be exponentially harder than if you don’t have that removal order. In some cases, which I handle a lot of them, is you come here, you overstay, but you fall in love with a United States citizen and that United States citizen applies for a green card for you. Then once that application is filed we can tell the judge, “Hey, he’s married to the United States citizen, we’re going to apply for the green card for the first part in front of the service and then once that’s approved we’re going to come back in front of you, judge, and say, ‘Okay, grant the green card here and removal proceedings,'” which is always doable. Another way to do it is if the person qualifies for another form or relief like either cancellation of removal for asylum, then we apply in front of the immigration judge for that sort of relief. Now a lot of times, for example, if you’re here on a B-1, B-2, and you file for an extension or a change of status that’s still pending, ICE picks you up and say, “Well now you’re in removal proceeding,” because that extension of status is still pending they’re technically still in status in the United States and they cannot be removed. So, hiring an immigration attorney like myself who has extensive experience in removal defense would be a good way to actually go in front of immigration judge and say, “Hey, I screwed up. ICE cannot prove that I’m on overstay,” then go ahead and terminate the proceeding. That’s another way to do it. So, you can defend yourself, and the defense depends on whether you have some sort of relief or you don’t have some sort of relief in immigration law.
I’ve already received one visa extension; can I get another?
It depends on what you’re trying to do. So, can you apply for another extension? Absolutely, as long as you’re in status, you can go ahead and apply for another extension status, but here is what the problem is going to become. The problem is the government is probably… As long as you have a good reason to do it, the government will not look at it skeptically, but if you keep doing it more than once, then they’re going to have a bigger issue questioning why you really are trying to stay in the United States. If you’re on what’s called a nonimmigrant visa built in the name nonimmigrant is not wanting to have an immigrant intent. So that means you don’t intend to stay here in the United States forever. So, if you don’t want to make the United States your permanent home, not having an immigrant intent. So, if you keep applying and you have an intent to live here in the United States more than your country, then the government will be skeptical and say, “Okay, well you told us you’re going to leave. You told us you have sufficient contacts and sufficient relationships in your country that when your period of stay is going to expire, but now you’re telling us this is your second extension, now you’re telling us that you want to stay here more than you’re staying in your country. So, you’re not abiding by the Florida Residence Rule and we’re probably going to have a problem giving you a second extension.” So, is it doable? Yes, but you have to prove a lot and it gets more complicated than just applying for the first extension.
How will I know if I’m in danger of being deported? Will authorities come and find me?
Will they come and find you? Yes, if there’s a warrant for your arrest or anything like that. There’s always an administrative… Is the government going to come and actively look for you? No. But are you going to be in trouble if you get caught? Absolutely. So, there are two aliens… Well, I hate using the word aliens, so two types of immigrants. If you come here and overstay, you stay on the right side of the law, you’re not committing crimes, doing any of that stuff, the likelihood of them coming to pick you up is zero to none. Now, a lot of times what happens is that they show up at your house, you’re living with several immigrants without status or undocumented immigrants, if they find you in that house, they’re going to pick you up if you don’t have status. That’s for the immigrants that don’t have any criminal background. The second one is a person who has a reason to be deportable. So, 10 years ago I did a pro bono case for a client who worked for my local mosque and immigration comes in and knocks on his door with an administrative warrant to look for his son, who had a criminal charge for possession of a firearm. Well him and his wife were in that address that his son gave to immigration. So, they rounded him and his wife and sent them. So, it really depends on… Another big way to do it… Actually, two more ways. I represented someone who got in a fender bender three years ago and the arresting officer said, “Well, I need an ID,” because of the Real ID Act, the lady didn’t have a Florida driver’s license and so she gave him her consular ID from Mexico. So, what does that mean? That means that I don’t have status in the United States, so he ended up booking her. If your locality has a contract with ICE to apprehend immigrants then they’re going to pick you up for a simple reason, your taillight is out and you end up getting caught. The other one, which is prevalent is I get in a fight with my boyfriend or girlfriend, boyfriend or girlfriend calls the cops, you end up getting picked up, you’re out of status, guess what? You’re in removal proceeding nine times out of 10. One thing that we really have to talk about is enforcement priorities. So, after every administration gets elected, they release a memo called Enforcement Priorities for ICE. So, in the Obama administration the enforcement priorities was criminal alien and I’m using aliens here because they use it, not me. So, if you have an aggravated felony or something really bad on your record, guess what? You’re going to get picked up and ICE is going to come and get you. In the Trump administration that’s become really, really, really more complicated because everyone is at risk of being deported now. Even you being accused of a crime, not convicted, just an accusation of a crime. So, let’s say, going back to that boyfriend, girlfriend fight, if you go in and you have a fight and they pick you up, just the mere accusation of that battery makes you a priority of removal under this administration. What was the question again? Sorry, I kind of went on a tangent.
For more information on Immigration matters an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (813) 499-1250 today.
- Ahmad Yakzan on Non-Immigrant Visas
- Are there circumstances where an overstay will not be held against you?
- Overview of a Visa Overstay
- Will my visa be automatically revoked after an overstay in the United States?
- Ask Ahmad Immigration Question Answered on May 28 2020
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