Is reentry possible after overstaying in the US?

The issuance of an immigrant or temporary visa by the United States embassy is a privilege and may be revoked for any valid reason.

A visitor who violates the terms of his/her visa by staying beyond the authorized period may be barred from reentering the United States. If this happens, will he/she be able to overcome the ban and reenter the US again?

Jenny entered the US on a B-2 visa to visit her aunt in California. She was allowed to stay for six months.

After a few months, Jenny’s aunt told her to look for a US employer to sponsor her so she could get an H-1B visa. But Jenny was unable to find a sponsor before her B-2 visa expired.

At the urging of her aunt, Jenny did not leave after her visa expired but worked for one and a half years as a caregiver. Unable to get steady employment and a good salary without proper work papers, she finally returned to the Philippines.

Then Jenny met Tom, an American citizen, when he visited relatives in Manila. They fell in love and had a long distance relationship. When they became engaged, Tom wanted to petition Jenny for a fiancée visa.

Will Jenny’s extended stay in the US after her visa expired cause problems?

3/10-year bar

Jenny will face problems when she applies for a fiancée visa because she overstayed on her last trip to the US. After her visa expired, she became out-of-status and had an “unlawful presence.” In other words, she was undocumented.

Under US immigration laws, the period of unlawful presence accrued after Apr. 1, 1997 will trigger the 3/10-year bar.

A person with an unlawful presence of more than six months but less than one year, who voluntarily departs before removal proceedings begin, will be barred from re-entering the country for three years.

If the period of unlawful presence is more than one year, a person will be inadmissible  for ten years. This is referred to as the 3/10-year bars. The period of unlawful presence applies to a single continuous overstay.

Filing a ‘waiver’

But there is a way to overcome bars to reentry.  Waivers are available to make reentry possible.

If a person, who is barred, is applying for a temporary nonimmigrant visa such as a tourist visa again or a student, H-1B or L visa, he/she may seek a 212 (d) (3) waiver of the unlawful presence so long as there is no other ground to bar reentry.

The waiver is discretionary. The three criteria for granting a waiver under 212 (d) (3) are set forth in the Matter of Hranka: (1) The risks of harm in admitting the applicant; (2) The seriousness of the acts that caused the inadmissibility; and (3) The importance of the applicant’s reason for seeking entry.

A waiver will be valid for not more than  five years.

If a barred person is seeking an immigrant visa or a green card, he/she will have to apply for an I-601 waiver. This is only available if the person has a “qualifying relative” who will suffer extreme hardship if the applicant is not admitted to the US.

Qualifying relatives are limited to US citizen or lawful permanent resident spouses or parents. Unfortunately, US citizen or lawful permanent resident children are not considered qualifying relatives.

Jenny’s case

In Jenny’s situation she was unlawfully present in the US for a year and a half and is therefore subject to the 10-year bar and may not be allowed to reenter.

Even though the fiancée visa is a temporary or a nonimmigrant visa, a 212 (d) (3) waiver is not appropriate. The fiancée visa is a hybrid type of visa, with the visa holder eventually seeking a green card.

Jenny will have to apply for an I-601 waiver.

She does not have any “qualifying relatives” because she is not yet married to Tom and her parents are neither US citizens nor lawful permanent residents.

However, under the regulations, noncitizen fiancées are permitted to use their US citizen fiancé as a qualifying relative if it is determined that the inadmissibility can be waived after marriage.

Jenny will only be granted a waiver if she can prove that Tom will suffer extreme hardship if she is not permitted to enter the US. And the waiver  will be conditional.

To get a waiver, substantial evidence has to be submitted showing extreme hardship to the US citizen qualifying relative. When a relationship is still new, hardship may be difficult to prove.

So, while there are waivers for “unlawful presence,” it is better to avoid the process  by not violating US visa terms.

(Tancinco may be reached at [email protected] or at 721 1963 or her website: www.tancinco.com)