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  • Overstayed

    I am a British citizen who has overstayed in the U.S from my I-94 for about 3yrs. I understand that I will get a ban of 10yrs from entering into the U.S IF I am caught. Plus I have also worked here illegally! I left the U.S via Mexicali back to Britian in order to have no record of me leaving the U.S which was advised by an immigration attorney. Was this a good idea I wonder!? I entered into the Diversity Visa Programme and have been selected as an applicant for a green card and will be interviewed at the Consular in London.

    Since leaving the U.S, I have married my long time boyfriend who resides in L.A under a H1-B visa, but I do not live with him there, purley because if I moved back to L.A, I was afriad I would be caught at customs and place my husband in a position to lose his visa! Plus I could not work as being a wife of a H1-B visa holder I would be just allowed to reside here and do nothing and would probably work illegally all over again! He has also been standing beside me during my out of status stay in the U.S.

    We have been so worried and I understand that this is all my fault. Would I be caught at my interview? How would they know if I overstayed beyond X amount of years. Should I just confess to the Consular Officer that I overstayed, I do not want to hurt my husband.

    While I overstayed here, I applied for a H1-B visa and was only denied because I was not fully qualified under the Labour Certificate Act, as I do not have a degree. I did not want to leave my boyfriend who now is my husband and out of our stupidity we have come to this terrible dilema which is of our own doing.

    Any advice or opinions, good or bad would be much appreicated.

    Thank you

  • #2
    What a wonderful, ethical immigration attorney you had! Did he/she take a special class on "How to be Ethically Challenged"? And you believed this clown?
    If you are outside the US, then when you attempt to go back, your name will pop up as having never left...except that, gosh, here you are at the airport! Your entry under the visa waiver will be on record and you will be in a position to have to establish the fact that you left on time....good luck (not)...maybe Mr or Ms Ethics will offer some more advice.
    Of course, you will also face the prospect at your diversity visa interview of considering to conceal material facts from a consular officer...let's see, I think that is what is called "fraud and mispresentation" and will bar you PERMANENTLY from eligibility to receive a visa of ANY kind for the rest of your life. Maybe another phone to Mr or Ms Ethics is in order.
    On your application you will be asked if you ever visited the US and for how long...what answer will you give? Although the consular officer may not know immediately, you will likely be discovered at the airport in the US and then...adios. You will also have to complete a form that asks if you were in the US for more than 180 consecutive days (for tax purposes) ...mind you, this is a federal form and if you lie, well, guess the results. You will have to decide whether to lie or not. Conceal or not. Lie, conceal or cover up...or not.
    It is true that your 3 year "visit" will make you inadmissable for 10 years and there is no waiver for yourself if you are the DV winner. If you lie and get caught, it is forever (well, until you are 90). Marrying your H1b boyfriend will not help because he has no status that any special privileges might accrue to. He is not a legal permanent resident nor a US citizen. Now, maybe this same moronic attorney that gave you travel advice might suggest that to solve all your troubles, just enter into a "good faith marriage" (I think that is the term all 'ethically challenged' immigration attorneys use nowadays)to a US citizen, perhaps get a waiver for your inadmissability or ineligibility, hold your nose for 2 years in this relationship, get the conditional residency removed and, presto, a GREEN CARD! Then, divorce your 'husband' and go find your H1b boyfriend. Now doesn't that sound just peachy?
    Now, another alternative with no assurance of success, is to come clean at the DV interview - which means you will not get the DV visa. But, if you go ahead and marry Mr H1b (he has to come to your town), you could apply for a non-immigrant waiver and maybe, just maybe, get that. But there are no guarantees. But this is a shot. Now, you could lie about everything at the DV interview, but get caught at the border and lose out, then try the marriage to Mr H1b. But now, when you apply for a waiver, well, it might interest you to know that the embassy can recommend or not recommend the approval of a waiver. And if they learn that you tried to snow them earlier, well, then, the only place you will find sympathy will be in the dictionary. It's decision time.


    • #3
      I agree with Anon's acute observation on your case.All sorts of advice devised by that lawyer are untenable hence required a second thought.
      Keep up the good advice Anon and welcome.


      • #4
        Anon's analysis is the worst scenario. Now that you've already done what you said. A more positive approach is to look at what you can do now.

        Many aliens leave US without any record, that is, airlines don't always collect I-94 cards, so many aliens in INS systems have never "left". I was one and came back without problem though I didn't overstay in the first place. The key issue is that whether INS has solid evidence that you have in fact overstayed. Your declined H-1B application could be the problem. Figure out whether it's declined at the Labor Department or INS.


        • #5
          All these folks who suggest that you continue the charade are not helping you. You violated the rules; now, to try and hide these facts and hope no one notices or to consider concealing facts from the embassy, etc, will more than likely cause problems...and big ones.
          Yes, you are married now, so the "enter into a good faith marriage" scam, er, scheme, won't work (unless you decide to divorce Mr H1b first, but really, let's not go overboard here).
          You should also think about the fact that many embassies read this website and, unless you used a different name here, the embassy in London can easily cross index your name (even though it is a first name) with your situation (married to an H1b holder,but you are not an H4 holder) and wonder what's going on? And then, they will put 2 and 2 together and you will have some explaining to do.
          Your lack of an H4 visa will likely cause the embassy to ask themselves."Gee, why don't you have the H4 visa?" And you are going to say?????
          So please exercise some caution if you decide to listen to those who would suggest concealing facts and/or lying to the embassy, to INS, to whomever and hope everything works out OK. There are too many gaps in your situation.
          Personally,I still think your best bet is to acknowledge the overstay, bite the bullet (because you will not get the DV visa) and then apply for the H4 via your marriage and ask for the waiver. In this way, the embassy will be more understanding and won't feel like you tried to put one over on them. But, this is only my opinion. There are no guarantees with this approach.
          But really, think about the consequences if you try be do this in an underhanded way and get discovered. Big time toast!


          • #6
            To ANON: Thank you for your opinion. I know for a fact that I will get a ban for 10yrs+ probably. You were extremely informative & I just want to clear up that my boyfriend in the U.S who now is my husband is not a green card holder nor a USC. We have been married for the past 6 months! I have heard of bogus marriages for green cards, but I am not one of them. Sure I should of married him earlier in order to be in status, but I didn't want to nor were we ready for marriage. I thank you for your advice, much appreciated.

            To Guest: I was denied for a H1-B and as stated on a 3 page official document:
            ".....Therefore this position does not meet any of the proceding criteria for classification as a speciality occupation.........As such the beneficiary is ineligible for classifiacation as an alien emloyed in a speciality occupation. Therefore the petition is denied.....The petitioner may, if she wishes, appeal the Director's decision....."

            To Anon: Thank you for your advice, I fully understand the consequences. I have not lied on any of the applications that I have filled out. And I understand that I will not retain my diversity visa purely because I have broken the immigration law in the U.S by overstaying and working illegally! A big no, no. Once again, much appreiacted in regards to your statement.


            • #7
              Nobody knows you overstayed your visa other than you. They don't report anything back to the consulate about who was late or not. Get a new passport...that's good cause there is no more trace about the stamp on the passport, plus you get a new passport number. Keep you mouth shut. Nobody knows except you.

              If she wants to go consular route (CP) she needs to return forms that come with the winning letter now. The forms are sent to KCC (office of the Department of State (DOS) that holds the lottery) not to INS. INS has nothing to do with consular processing, DOS does.

              INS comes into play if she wants to do adjustemnt of status (AOS) instead - i.e. enter US in one status (F1) and then file status adjustment application with INS based on DV winning.

              Good luck, and of course you may get caught. But it's chance you have to take, and as Anon says.. adios!


              • #8
                Some really great ethical advice from 'Luck'...and if you follow it, you will need lots of luck. Consular officers are not naive; your biggest red flag is the lack of an H4 visa. It would be so easy for you to have asked for one long ago and now the question will be "why didn't you?" The location of your marriage (presumably in the UK) will also be a telling tale, combined with the lengthy period of time (I guess about six months, according to what you wrote) after marriage that you have done nothing to obtain an H4. Changing passports will not fool anyone at the embassy. Changing passports will not erase your admission record in the INs computer. Changing passports and then trying to explain all the holes in your story will bring your interview to a swift conclusion with an unhappy ending.
                One phone call to INS and the embassy can find out when you entered the US and the lack of evidence of a timely departure and then the burden of proof will be on you to demonstrate that you left within 90 days. The consular officer, likely sensing a tall tale coming, only has to ask for your pay stubs or tax returns from the last three years from the UK or phone records or utility bills, car registration, credit card records, etc. Where are you going to get three years worth of phony papers? And what are you going to do or say when a few phone calls reveal your attempt at fraud? (if you tried the fake paper bit) You see where this is going? Trying to cover this up stands little chance of success; each time you say one thing, another question about proof will pop up and then what???
                So please, stop listening to these know-it-alls who think that lying and concealing are positive virtues. Let them stew in their new passports or bogus marriages.


                • #9
                  Thank you Anon for your opinion. I understand my situation, as I am absolutley screwed! I respect your opinions and others to. I will go a head with the interview and the outcome would be, not gaining the diversity visa plus the elusive ban. I can live with that, as I said this is all my doing. I'd rather state the truth and get the ban. All this worrying has made my head dizzy, so I'll just come clean. To reiterate, I did not apply for a H-4 as after all I have red flags popping up around me already, I did not want to place my husband in a position where he could lose his H1-B.

                  Much appreciated for all your opinions and advice.


                  • #10
                    If you decide to pursue an H4, that will not jeopardize your husband's H1b status. If you admit to the overstay, ask for the H4 and then ask for the waiver, you will have a much much better chance of going back to the US that way. Your husband's status is not likely to be affected by your previous actions (I assume he did nothing to try and fool any authorities in any way when he obtained his H1B, correct?) No one is denied the opportunity to marry someone if they happen to be in illegal status; correcting that status can be difficult. I don't think I would say you are screwed; rather you have a rough road ahead, but certainly not hopeless. You may not get the waiver the first time, but that does not prevent you from asking again some time later. You might even consider asking for the H4 now, and see what happens.


                    • #11
                      Thanks Anon. My husband got his H1-B visa the "right" way. Had no idea that you could obtain this in any other way! The only thing he did wrong was that he was aware that I was out of staus and working here. His immigration attorney who handles his H1-B gave us advice regarding our situation, which I wouldn't 100% agree on. I appreciate your opinions greatly, as at the end of the day I need to correct what I did wrong.

                      Once again, thank you.


                      • #12
                        In my opinion the best option now would be to calm down,get your facts together and in order,clear your head of all the advice and discouragement that you have been receiving and ask your husband to go and talk to a good immigration lawyer in the US.You do not have to worry about the lawyer reporting you to anyone (as some might tell you).

                        Everyone has been going balistic on what can go wrong,how you could be caught,how you could be in soup,how 2 wrongs dont make a right.

                        Well has anyone offered some concrete legal advise ? No....just a lot of trash that has only scared you and put you in dilemma.I can understand how you feel,I have seen people in very similar situations.The best thing now is to calm down,ask you husband to consult a lawyer ASAP for you.Yes its going to cost a little,but for that ,you'll get legal advise that might give you more,better and safer options.You could use the laywer search facility in this website for a start,its good.

                        Please remember nothing comes free in this world other than unmeritted advice.

                        Best of luck,hope you join your husband in the US soon. I Welcome you Here In Advance ! Calm down, keep your cool and build your confidence ,you still have Hope.


                        • #13
                          I am not offering legal advice because I am not an attorney. I am not going ballistic. I am telling Beatrice about the pitfalls of attempting to circumvent various rules that exist regarding visa applications. She is a big girl; she can decide for herself.

                          While an immigration attorney may well offer legal advice, he or she cannot exert any authority over the INS nor the embassy to force a waiver or visa out of them. The reason they cannot exert any authority is because they do not have any authority over either of these institutions. This is not to say that contacting an attorney would be an error; it is just that many people think that an immigration attorney is going to pull a rabbit out of a hat. Few are magicians.
                          An immigration attorney and can should (my opinion) inform Beatrice and spouse what the problems are, the ups and downs of various, shall we say, "Strategems", waivers, etc and let them decide what to do. The lawyer is not going to pick up the phone and tell the INS to dole out a free pass. Won't happen.


                          • #14
                            To Sam: Thank you for your opinion. I have consulted 2 immigration atorrneys and both have conflicting views, but they did stress that I should of married a USC!! I guess I really did enter into a good faith marriage. No pun intended. But they both advised on telling a little white lie. No matter what route I choose it will be a bumpy ride. Dealing with the INS and/or CP will be tricky regardless, as no one will exactly know what the out come would be. But it will come to this conclusion: a ten year ban OR I'll get away with it.

                            To Anon: Thanks for your opinion I believe whatever statements you post is just an opinion which we all should respect. That's why this is a great forum. So many views on the pros and cons.


                            • #15
                              YOU ARE GIVING US BRITISH PEOPLE A BAD NAME!


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