Overstayed tourist visa by more than one year but was not officially barred for 10 years

New York, NY Viewed 60 times. Posted 24 days ago in Immigration

I'm helping someone pro bono with something and an immigration issue came up. This person overstayed a visitor's visa by more than one year back in 2000-2001. When she tried to return for a visit in 2002, the INS deported her with a 5-year ban (which would have expired already), presumably for improperly obtaining a visa or entering as an immigrant on a non-immigrant visa. I know that overstaying her visa for more than one year means she is susceptible to a 10-year ban under 212(a)(9)(B)(i)(ii). However, she was never banned by the INS for 10 years, only for 5.

The question is, may her ban now be considered to be expired, allowing her to apply for a regular visitor's visa, or is the hypothetical 10 year ban still in place, even though she was never officially banned for 10 years?

Answers (2)

Stuart Jonas Reich

This attorney is licensed in New York and 2 other states. Posted 24 days ago.

She doesn't need a formal adjudication that she is subject to be subject to the ten-year bar for the one-year overstay, and the fact that she may also have been subject to a five-year expedited removal bar doesn't absolve her of the ten-year bar. If she accrued one year of unlawful presence after the expiration date of her visitor visa and then departed, there is nothing hypothetical about her ten-year bar.

We would need to know more about what exactly happened at that attempted return in '02 - if they turned her around under expedited removal, there may be something here which gives her bigger problems than the ten-year bar. If someone lacks the required nonimmigrant intent, they may be refused entry but will often (though not always) be given the opportunity to simply withdraw their application for entry rather than be placed in expedited removal and become subject to the five-year reentry bar that this carries. If she obtained a visa through fraud, that's another matter entirely.

A FOIA request may or may not get you the info that's needed, but it's worth a shot. Even when the ten-year bar expires in 2011, she might still have some sort of problem that prevents entry. More research is needed here.

Karin Wolman

This attorney is licensed in New York. Posted 23 days ago.

It could come up again. Any application for a new visa will entail a review by the consular staff of her entire prior visa history, and they will ask for documentation of all prior stays and will check their assorted information systems, which may now contain a record of the old I-94 card from her overstay as a visitor, which might not have been in the system yet in 2001-'02 at the time she was removed. Lots of old hard-copy documents have been taken out of storage and scanned since then. If she were to make any misstatements or omissions about the prior overstay, that could generate an additional, and permanent, ground of inadmissibility for fraud under 212(a)(6)(C). The safest strategy is to explore the possibility of whether she qualifies for a waiver, since the 10-year bar would not yet have expired.

This is general information only; it is not intended as a substitute for legal advice, and does not create an attorney-client relationship.

Law Office of Karin Wolman