A company is willing to sponsor and apply for a green card for a future employee but he has overstayed his tourist visa for two years.
Will the application be automatically denied? is there any waivers the employee can apply for beforehand ?
Any solutions or advise are welcome.
If the employee has a US citizen or permanent resident parent or spouse, can apply for 601(A) waiver for provisional unlawful presence based on extreme hardship to family member. Otherwise it’s hard to overcome this issue.
While an employer may petition for an overstay. The overstay would be required to consular process and a waiver of inadmissibility is required.
Is my answer "BEST ANSWER" and/or "HELPFUL"? If so, please acknowledge and mark it so. Mr. Smith has 25 years of successful U.S. immigration law experience with cases just like yours. Still, his response is general in nature, as all the facts are unknown to him, and cannot be construed as legal advice. Please retain immigration counsel to analyze your particular situation in order to receive specific advice. Specific answers requires knowledge of all the pertinent facts of your case. Any answers offered by Mr. Smith on Avvo are of a general nature only, and does not create an attorney-client relationship.
On January 3, 2013, the Department of Homeland Security published a regulation allowing immediate family members of U.S. citizens who entered the U.S. without inspection, or are otherwise ineligible to adjust their status in the U.S. due to unlawful presence, to apply for an I-601A waiver in the United States. Once their waivers are approved by the USCIS, they will be eligible to attend their green card appointments in their countries of origin.
The aim of this new program, which became effective on March 4, 2013, is to avoid having spouses and sons and daughters of U.S. citizens be separated from their families for months or even years while their waivers are pending.
Now, these family members will obtain their waivers before departing the U.S., will be interviewed abroad, and will then return to their families in the U.S. within just a few days or weeks.
Carl Shusterman (former INS Trial Attorney, 1976-82) has 40+ years of experience practicing immigration law. He is a Certified Specialist in Immigration Law who has testified before the U.S. Senate Immigration Subcommittee as an expert witness. He was featured in the February 2018 issue of SuperLawyers magazine. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
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