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I-130 and F1 overstay

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  • I-130 and F1 overstay

    Hello, I am a Japanese Citizen and I'm applying for the I-130 now.

    I'd like to ask two questions concerning my case.

    (1.) On form DS230 PartII, do I have to check on "YES" to the question H. ?

    In the begining of these questionairs, it states that " except as otherwise provided by law, aliens within the following classifications are ineligible to receive a visa."

    Question H:

    An alien who was previously orderd removed within the last 5 years or orderd removed a second time within the last 20 years; who was previously unlawfully present and ordered removed within the last 10 years or orderd removed a second time within the last 20 years; who was convinced of an aggravated felony and ordered removed; who was departed within the last 3 yeras; or who was unlawfully present more than one year or an aggregate of one year within the lsat 10 years.

    (2.) Will I be rejected to receive a visa because of my overstay? (my overstay was more than 180 days.)

    This is my back ground:

    -March 2001, I enterd the USA legally with an F1 visa.(the F1 visa expiration day was Feb2006).

    -May 2003, I married my husband. he's an usc.

    -During Spring 2004, I became out of F1 status. (not enrolled or completing 12 units)

    -July 2004, I was terminated from SEVIS.

    -Jan 2005, I came back to Japan on my school counselers advice.

    -Feb 2005, my husband filed for I-130 in the US.

    -Now, my immigration visa petition has been approved and I am awaiting for my final interview at the US Embassy in Tokyo Japan. Please help us, we've been working on this case on our own and we have no other reliable source of information to rely on.

    Sincerly,

  • #2
    Hello, I am a Japanese Citizen and I'm applying for the I-130 now.

    I'd like to ask two questions concerning my case.

    (1.) On form DS230 PartII, do I have to check on "YES" to the question H. ?

    In the begining of these questionairs, it states that " except as otherwise provided by law, aliens within the following classifications are ineligible to receive a visa."

    Question H:

    An alien who was previously orderd removed within the last 5 years or orderd removed a second time within the last 20 years; who was previously unlawfully present and ordered removed within the last 10 years or orderd removed a second time within the last 20 years; who was convinced of an aggravated felony and ordered removed; who was departed within the last 3 yeras; or who was unlawfully present more than one year or an aggregate of one year within the lsat 10 years.

    (2.) Will I be rejected to receive a visa because of my overstay? (my overstay was more than 180 days.)

    This is my back ground:

    -March 2001, I enterd the USA legally with an F1 visa.(the F1 visa expiration day was Feb2006).

    -May 2003, I married my husband. he's an usc.

    -During Spring 2004, I became out of F1 status. (not enrolled or completing 12 units)

    -July 2004, I was terminated from SEVIS.

    -Jan 2005, I came back to Japan on my school counselers advice.

    -Feb 2005, my husband filed for I-130 in the US.

    -Now, my immigration visa petition has been approved and I am awaiting for my final interview at the US Embassy in Tokyo Japan. Please help us, we've been working on this case on our own and we have no other reliable source of information to rely on.

    Sincerly,

    Comment


    • #3
      An individual on a student visa is admitted for Duration of Status indicated by a D/S on the I-94.

      This acts as a loophole for an overstay in that you do not start to accumulated unlawful presence until someone at USCIS or an immigration judges tells you that you are out of status.

      Based on what you indicated in your post, I thing you will be fine for consular processing.

      Comment


      • #4
        Thank you so much for your reply.

        I have never been told about my overstay by USCIS or an immigration judges.
        so I will check "no" to the question H.

        thank you again for your quick response.

        Comment


        • #5
          If you are asked about this at your interview be forthright and don't hide anything.

          It does not even sound like 180 days from the time you were terminated in SEVIS. Check the date you were terminated in SEVIS and the date you left.

          Comment


          • #6
            Here is a link to some information on the subject:

            http://www.twmlaw.com/site/resources/general26cont.htm

            My interpretation of the F-1 unlawful presence regulation is current to the best of my knowledge. Regs and USCIS interpretations of regs have a way of changing multiple times in a short period of time.

            I suggest you research the topic for yourself on the net to see if an update has been made.

            Comment


            • #7
              Thank you SugarPuff, your advice has given my husband and I alot more confidence. It just seems the way things have been working for us, that nothing would come as a surprise to us anymore.

              Comment


              • #8
                Nanao,

                SugarPuff is right, but make sure to bring a INS/state department memo and a copy of your I-94 or I-20 that indicates D/S status when you go to your interview.

                Good Luck

                Comment


                • #9
                  I'm wondering why school counselor advised you to leave??

                  Comment


                  • #10
                    oh no, I missed to type out the most important part for the Question H.

                    " who was previously unlawfully present in the United States for more than 180 days but less than one year who voluntarily departed within the last 3 years."

                    I was afraid I might fall in this category.

                    Comment


                    • #11
                      Thank you very much for replies, Familybased, and, Still Learning.

                      >>Familybased,
                      thank you for the advice. I will bring them with me to the interview.

                      >>Still Learning
                      Before I left to Japan, I visited the school counselor to see if I could re-instate my Visa status. at the time, she told me that my visa was already terminated and I had to leave as soon as possible.

                      Comment


                      • #12
                        Ok Everyone,
                        I had my interview. I marked no on the question about the overstay but attached a note explaining to the best of my knowledge I did not overstay more than 180 days. All went smoothly at the interview. They asked some basic questions and then approved my Visa with no action taken against me for my overstay. I am now back home with my husband. Thank you all again for all your help and advice.

                        Nanao

                        Comment


                        • #13
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