I am a South African national, i lived in the US from May of 2009 to May of 2012, i had left South Africa on a h2b visa to work at six flags great America in Illinois, my visa expired in November of 09, i then moved to Florida and started working for Kirby vacuums in the state of Florida, Louisanna and Texas, i contacted several attorneys whilst in the US but they had informed me that i could not adjust my status whilst in the the country because i was out of status, the only way was to get married and i was going to but never followed through with it(was going to get married for love and not the papers), i had left voluntary and no questions were asked at the airport, i have no criminal history in America or the South Africa, i did not receive any benefits
Unfortunately, by having overstayed your visa and having remained out of status for (I assume) more than one year & having left the country, you have in effect triggered the 10 year bar to readmission.
The only way of getting back is to have a USC spouse who will file an immigrant visa on your behalf, coupled with an extreme hardship waiver, to "waive" your inadmissibility. There is no guarantee something like this will succeed, since even if married, in the eyes of the law "mere separation does not constitute hardship."
I agree with my colleagues. You have a 10 year bar by staying over a year out of status. It makes no difference if you returned the I-94 or not. For this bar, a waiver maybe eligible. A non immigrant waiver is needed if you wish to apply for a nonimmigrant visa, such as one sponsored by an employer.
Dhenu Savla, Esq.
As stated by my colleagues you will be subject to the ten year bar and need a waiver, which requires a a showing of extreme hardship to a qualifying relative, (u.s citizen or permanent resident spouse or parent). This will of course additionally require an immigrant petition I-130 to be filed by the relative, if an immediate relative files ( u.s citizen spouse or child over 21) the process will be faster as you do not have to wait for a priority date.
Another option would be a 212(d) (3) waiver if you have the possibility of applying for a non immigrant visa. Please consult with an immigration attorney competent with waivers
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