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Overstayed 5 yrs on f1 visa, husband TPS, 2 us children, returned to europe to get visa what are the prob. of getting a new visa

Houston, TX |

I came to the us as an F1 student (2003). Was in my last semester of college when i had to renew my papers, I tryed to do so but got denied of wrong filing gave me a d/s on my I- 94 (2005) returned back overseas (2012 ) with our two US born children. my husband is on TPS I married him in (2003) wanting to refile a application for f1 or other visa what are the chances for my children and I to be reunited with my husband again in the united states? if there is a chance would it be better for my husband to file for an H1b visa and me for an H4 or if this is even possible to reapply for an F1? thank you for your time.

Attorney Answers 4

Posted

You can apply for F1 but it is very likely to be denied. Your overstay makes you subject to a bar which will require a waiver but what I think will hurt you the most is that your family is in the US. That will make it very difficult for you to prove non immigrant intent.

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Posted

thanks for the quick response, would it be better for my husband to try to file for an H1B visa and me for an H4 with waiver?

Cindy Medina

Cindy Medina

Posted

you will still have the same obstacles. your husband should retain an attorney to help you to hopefully be able to obtain a visa despite the obstacles you have to overcome.

Posted

Whether or not you accrued unlawful presence will depend on whether USCIS told you you were out of status (as F-1 is typically D/S meaning duration of status). Having said that, I still agree with my colleague that being granted another student visa will be nearly impossible.

This is not legal advice and a client attorney relationship is not created. For a free consultation call (718)234-5588.

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Posted

uscis never told me that i was out of status but i still overstayed wich isn't good either. but as for the change of status of my husband with an H 4 would that be a way? should i request info at the us embassy in my country?

Irene Vaisman

Irene Vaisman

Posted

again that would depend on whether you started accruing unlawful presence - with D/S it is different

Posted

If you stopped attending college in 2005 your F-1 was terminated. It means that you have accrued over 1 year of unlawful presence and, as such, are inadmissible for 10 years. This will make you ineligible for a non-immigrant visa. Moreover, you cannot benefit from your husband's TPS.

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Posted

I understand i cannot benefit from my husbands TPS wich is not possible. but as a wife of an H1b holder do i not qualify for an H4 visa with waiver? is it worth the try?

Olesia Gorinshteyn

Olesia Gorinshteyn

Posted

Not knowing all the circumstances makes it really hard to predict. Tell your husband to consult with an immigration attorney to lay out all your limited possibilities for return.

Posted

Your first issue is whether you qualify for any type of visa - immigrant or none immigrant. Your second issue is whether you qualify for a waiver which it sounds like you will need as a result of the overstay.
I suggest you consult one-on-one with an experienced immigration attorney.

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