Can nonimmigrants with prior overstay receive visas again?
John arrived in the US on a fiancé visa. His petitioner, Amy, is an American who was introduced to him during one of Amy’s visits in Manila.
After dating for a few weeks and upon Amy’s return to the US in 2008, she immediately petitioned John for a fiancé visa.
When John arrived in the country, he noticed that Amy’s attitude toward him changed drastically. She oftentimes left John alone in the house and refused to sleep with him.
When John proposed marriage to Amy, the latter rejected the proposal and instead asked John to move out of her house.
Instead of returning to the Philippines, John continued to stay in the US with a relative and fell out of status. As a fiancé visa holder, he was informed that he may only adjust his status to a permanent visa holder if his petitioner Amy would marry him.
After three months, John received news that her mother was in a serious medical condition. This news prompted John to go back to the Philippines in 2010 to take care of his ailing mother.
In 2014, John was petitioned by a US employer to work as a software engineer. When his working visa petition was approved, he went to the US Embassy to apply for his visa.
During his interview, it was discovered that John had prior unlawful presence in the US when he was on a fiancé visa. Can John still be admitted to the US despite his prior unlawful presence? What steps should he take to obtain his working visa?
Three- and 10-year bars
There are penalties attached to those who entered and continued to live in the US beyond their authorized stay.
Generally, for visitor’s visa, the Customs and Border Protection officer will give only six months of authorized stay and three months to fiancé visa holders.
If the nonimmigrants such as the visitor or fiancé visa holders stay beyond six months but less than one year of their authorized stay, they will be barred from entering the United States for three years.
But if they stay beyond one year from date of their authorized stay, they will be barred from entering the US for 10 years.
These penalties are often referred to as the three-10 year bars. Hence, those with prior unlawful presence will be prevented from receiving visas again either for three or 10 years depending on how long they have overstayed in the US.
In the case of John, he overstayed for more than six months but less than one year, hence, the three-year bar applies.
He departed the US in 2010 and three years passed from date of his departure. This year, he would actually be outside the United States for four years. Since, he stayed for more than three years outside the United States, he is no longer barred from receiving his working visa and reentering the US.
For those who are subject to the three-10 year bars, and who find themselves in a situation where another option of traveling back to the US is available, there is still a possible way to return.
They may obtain new visas during the period of the bars but only if they file a waiver (I-601) of their unlawful presence.
The immigration law provides for this waiver and approves the readmission despite the unlawful presence if it is determined that the applicants’ US citizen or green card holder spouse or parent will suffer extreme hardship if they are refused admission.
(Tancinco may be reached at [email protected], facebook.com
/tancincolaw, www.tancinco.com or  721-1963.)
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