Will USCIS grant a pardon to my aunt for overstaying her visa because of family hardship?

Asked almost 4 years ago - Destin, FL

I'm trying to help an aunt who is the beneficiary of an I-130 through another aunt (a USC) but I'm trying to see if there's any chance USCIS will NOT penalize her for overstaying (more than one year) her R1 (religious visa -obtained thru her husband). Will she trigger the 3 or 10 year bar? She overstayed because one of her daughters fell terribly sick (almost didn't make it -family hardship I'd call it) and after that she decided to stay to keep family unity. These are the facts:

Before the R1 ran out, they filed for an extension and an I-360 concurrently. Due to alleged lack of response on their part (the lawyer apparently never sent the papers) their apps were denied.

We plant to check with a lawyer but I wanted to see if anyone could shed some light on this. Thanks a lot. Manny H.

Additional information

Thank you, Ekaette Patty-Anne Eddings, for your answer.

The only problem I see here is that my aunt wasnt here back when this law was passed. She only moved to the US in 2003. Could she possibly use the hardship in her defense?

Thanks again.


Attorney answers (2)

  1. Elizabeth Rose Blandon


    Contributor Level 16
    Best Answer
    chosen by asker

    Answered . If you are seeking a strategy for your aunt's immigration goals, then I strongly suggest that you contact an experienced immigration professional. However, if your question is strictly whether hardship will suffice as a reason to excuse the overstay, the answer is probably not.

    Your aunt overstayed her status because one of her daughters fell ill. Your aunt would need to demonstrate that her daughter was extremely ill for all the time that your aunt was here without authorization and that your aunt was the sole source of support. This would be very difficult to prove indeed.

    I am pleased that you plan to check with a lawyer. Should you wish a second opinion, please contact our office and schedule a consultation.

    This attorney is Board Certified, speaks Spanish and French, and represents clients throughout the United States. For more information, click through to the Blog or web site.

    Elizabeth R. Blandon

  2. Ekaette Patty-Anne Eddings

    Contributor Level 20

    Answered . It is advisable to contact an immigration lawyer to discuss your case and find a way forward.

    This is a complicated situation and you need to sit down with a lawyer to find a way forward.

    If your aunt had an I-130 filed on or before 30 April 2001 she can rely on the provisions of s245(i).

    It is best to have this explained to you and your case assessed by the lawyer you will contact.

    You are welcome to use the link provided below.


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