Skip to main content

Will this situation present a present a problem for my future wife?

White Plains, NY |

My future wife entered the country in 2003 with an old passport on a tourist visa, overstayed and then left in 2006. She returned in 2007 with a new passport and was able to re-enter the U.S. with no problems and overstayed again. When we get married and I apply to sponsor her for a green card. Do the immigration officials know about her previous overstay? I tend to think not otherwise why would they have let her re-enter in 2007? And will that previous overstay present a problem with her green card application.

+ Read More

Attorney answers 4

Posted

This should not present a problem as long as she legally entered the US

Posted

Yes. Probably not.

Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.MyImmigrationLawyer.info NOTE: Responses are for the education of the community at large and is not intended to be "legal advice." No attorney-client relationship is established by responses or comments.

Posted

Your wife triggered the unlawful presence bar when she overstayed her first period of admission by over a year, and then departed. She should have been barred for re-entry for a period of ten years. The fact that she was admitted in 2007 was either a mistake, or because she concealed the amount of time she was in the U.S. previously accumulating unawful presence.

Because it has not been ten years since her 2006 departure, she will need a waiver in connection with her green card application. Getting the waiver approved will depend on whether or not she can successfully demonstrate that you will face an extreme level of hardship if she is denied admission.

Asker

Posted

Hello, AT the time she re-entered she was not aware of the 10 year bar so I don't believe she even knew to conceal that previous overstay. It was not asked of her at re-entry otherwise she would have unwittingly disclosed that. Is it possible the immigration service just did not have the capability at that time to verify that her first entry was an overstay?

Mark Robert Barr

Mark Robert Barr

Posted

Yes. Absolutely possible. Happens all the time. On her second entry, did she use the same visa as the first entry? Or did she have to apply for a new visa?

Asker

Posted

She's from one of the visa waiver countries. Her first entry was with an old passport. She lost that passport during the firt overstay and her mother got her a replacement which she used to exit with in 2006. While out of the country that passport expired and she was issued a new one (and more modern) which she used to re-enter the U.S. in 2007.

Mark Robert Barr

Mark Robert Barr

Posted

The entry on the visa waiver program will also limit her rights should USCIS deny her application for residency. Once she overstays on the visa waive program, the government can immediately execute a removal order, without giving her the chance to have her green card application adjudicated. Now, as a practical matter, USCIS will "generally" allow these applications to go through to a final decision. However, in messier cases, they sometimes choose the option of immediate removal without consideration of the adjustment. And if she loses in front of USCIS, because she entered on the VWP, she won't have the right to renew that application before an immigration judge in removal proceedings.

Asker

Posted

Well it seems clear, since they allowed her in the second time, that the immigration service does not know (or does not have the capacity to link her to a previous overstay). Is there a way to avoid having to disclose that?

Mark Robert Barr

Mark Robert Barr

Posted

No. She and you must tell the truth.

Posted

On the I-130 Petition, immigration asks if your relative has never been in the States States. You must be truthful. Since immigration allowed her lawful entry (with inspection), her previous immigration violation should have no bearing on this new case. Speak to an experienced immigration lawyer to help you.

Garmo Law Group, PLLC (Michigan) 248-626-0050. This advice is only general in nature and does not constitute an attorney/client relationship. Speak to an experienced attorney before making decisions.

Mark Robert Barr

Mark Robert Barr

Posted

I respectfully disagree. The fact that she was allowed entry means that she didn't trigger the permanent bar (1 year ULP followed by EWI). But her admission wouldn't cure the triggering of the ten year ULP bar. When she left in 2006, she triggered the bar. It should have been applied against her in 2007, but it wasn't. But she'll be applying for admission again through adjustment of status, and because ten years hasn't elapsed since the date of her last departure, she's still subject to the bar.

Mark Robert Barr

Mark Robert Barr

Posted

If she was applying for adjustment in 2016, then there is a strong argument that the bar no longer applies. Some USCIS offices will buy this argument, others won't. But she doesn't have that argument available to her right now, since ten years haven't gone by yet.

Danny Garmo

Danny Garmo

Posted

Counselor, I would not open the I-601 waiver door unless USCIS seeks one. I would file in the affirmative (I-130 and I-485 concurrently) and not defensive. Should USCIS seek a waiver, then file one. I have done this in the past in previous cases and it has worked. Worst case is USCIS seeks a waiver, best case AOS.

Danny Garmo

Danny Garmo

Posted

But I completely see your side of the argument Mr. Barr.

Mark Robert Barr

Mark Robert Barr

Posted

I completely agree--I wouldn't file a waiver either until there was a formal finding of inadmissibilty that could be cured by the waiver. But I think this person needs to be prepared for that happening, since, as a matter of law, I believe she still is inadmissible. And the worst case scenario is this situation is immediate removal with no opportunity to renew the AOS before the IJ, since she entered on the visa waiver program.

Danny Garmo

Danny Garmo

Posted

Counselor, I didn't see any information from the question that the individual entered from a visa waiver country or entered under the visa waiver program. Also didn't see anything that the entry was an EWI. Of course the case must be thoroughly evaluated and the applicants fully advised of the consequences.

Mark Robert Barr

Mark Robert Barr

Posted

I never said she entered EWI. She didn't. She entered both times on the visa waiver program. She'll need the waiver to cure the 10 year unlawful presence bar because she's seeking admission (through adjustment) less than ten years after her prior departure, when she triggered the bar. "Asker Posted about 2 hours ago. She's from one of the visa waiver countries. Her first entry was with an old passport. She lost that passport during the firt overstay and her mother got her a replacement which she used to exit with in 2006. While out of the country that passport expired and she was issued a new one (and more modern) which she used to re-enter the U.S. in 2007."

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer