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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


  1. 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.

    MEDINA LAW GROUP PC: EXPERIENCED TEXAS IMMIGRATION ATTORNEYS. email: cindy@medinalg.com; Phone: (210) 821-4500; Fax: 210-821-4500; 1802 NE Loop 410, Ste 104, San Antonio, TX 78217. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter. Furthermore, the content of this answer does not create an attorney-client relationship. I apologize in advance for any spelling or typographical errors. MEDINA LAW GROUP PC.


  2. 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.


  3. 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.


  4. 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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