Articles Posted in Overstays

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Would you like to know how you can renew your U.S. visa in 2023? If so, then this video is right for you.

Overview

Your U.S. visa has expired and now it’s renewal time. In this video, attorney Jacob Sapochnick discusses the general process of applying to renew your U.S. visa in 2023 at a U.S. Consulate or Embassy overseas.

Please note that there are hundreds of different U.S. visa categories that have their own eligibility criteria and renewal requirements. The information provided here does not, and is not intended, to constitute legal advice. To obtain legal advice on your particular facts, case, or circumstances, please consult with a licensed immigration attorney.

For visa specific information and documentary requirements, applicants may contact their closest U.S. Embassy or Consulate.

Visa Renewal Steps

Here are the main steps that any applicant must take when renewing their visa at a U.S. Consulate or Embassy abroad.

Step One: Make sure that you qualify for your U.S. Visa Renewal

First and foremost, regardless of your visa type you must be prepared to provide documentary evidence to the Consular official to prove that you remain eligible for the renewal of your visa.

For example, if you are renewing a student visa you must provide your updated Form I-20 Certificate of Eligibility for Nonimmigrant Student Status to show that you remain eligible to study in the United States. If you are applying to renew your tourist visa, you must continue to demonstrate your eligibility such as proof of temporary stay, strong ties to your home country, proof of sufficient finances to cover your temporary stay, etc.

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In this video, attorney Jacob Sapochnick explains the process for a United States Citizen to petition his or her parents for a green card, through adjustment of status (for those lawfully residing in the U.S.) or Consular processing (for those residing overseas).

If you want to know more about the eligibility requirements to do so, and how long it is currently taking for USCIS to approve green card applications for parents, please keep on watching.

Overview

Every year, thousands of people apply for green cards in different categories. One of the most common filings are green cards for parents of U.S. Citizens.

First, let’s discuss the requirements to file your parent’s green card.

To file the green card petition for your parents, you must be a U.S. Citizen that is 21 years of age or older. As proof of your qualifying family relationship to your parent, you will be required to provide a photocopy of your birth certificate.

As the petitioner (the U.S. Citizen family member filing the green card application with USCIS), you will also be required to file what is known as the I-864 Affidavit of Support. Form I-864 is your contract with the U.S. government promising to provide adequate financial support for your parent until they become a U.S. Citizen. As part of this process, you must prove to the U.S. government that you meet 125% of the Federal Poverty Guidelines according to your household size by providing verification of employment, and income verification documents.

Finally, your parent must intend to reside in the United States upon approval and issuance of their green card.

Procedure to Apply for the Green Card

There are generally two ways to immigrate your parent to the United States depending on where they are living: (1) adjustment of status or (2) consular processing.

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Do you want to know how you can change your status from a B1/B2 tourist visa to F-1 international student from inside the United States? If so, then this is the right video for you. In this video, we answer this important topic and discuss some important considerations you may want to know if you are interested in changing your status while inside the United States.

When you enter the United States in B1/B2 nonimmigrant status, you do so for a specific purpose – to remain temporarily for business, tourism, or a combination of both. But what happens when after you have entered the United States, you decide that you want to enroll in a course of study in the United States? Is this possible?

Overview

The short answer is yes, however there are some important considerations.

To begin, it is important for you to understand that you cannot file a change of status application while inside the United States during the first 3 months (90 days) of gaining admission to the United States. Doing so may trigger a presumption that you misrepresented your true intention for entering the United States and could land you in hot water with U.S. Citizenship and Immigration Services (USCIS).

However, if, during the course of your remaining duration of stay in the United States (after those 90 days) you become interested in studying in the United States, it is possible for you to apply for a change of status while remaining in the United States. Please note that you must have a good reason for changing your status to F-1 from inside the United States, instead of opting to apply for your F-1 visa at a U.S. Embassy or Consulate overseas. For instance, if you could not return to your home country for political or legitimate medical reasons.

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Have you ever wondered whether you can obtain a green card once you have overstayed your visa? In this video, attorney Jacob Sapochnick, answers precisely this question, along with related topics that might interest you. For instance, what should a person do once they have overstayed? What are the options to cure an overstay to obtain lawful status in the United States?

To understand more about this complicated topic, please keep on watching.

Overview

In most cases, a foreign national will come to the United States lawfully, meaning that they arrived on a valid visa type such as a student, visitor, or work visa and were inspected and admitted to the United States. Unfortunately, in some situations individuals fall out of status and overstay their period of authorized stay. Whether it is because they lost their job, failed to attend school, or could not leave the United States in time before the expiration of their I-94 arrival/departure record, there are many situations that can cause an overstay to happen.

By contrast, some individuals enter the United States unlawfully, meaning that they entered the United States without being inspected and without a valid visa. The issue of whether the foreign national entered lawfully or unlawfully is crucial when it comes to the options that may be available once an overstay has occurred.

How do I know if I overstayed my U.S. visa?

First, let’s discuss the threshold question of how one can know whether they have overstayed their visa.

This may seem like a complicated question, but in fact is very easy to resolve. A person overstays their visa if they have remained in the United States past the authorized period of stay stamped in their passport. When a person is admitted to the United States, they receive a stamp issued by a Customs and Border Protection official which provides the exact date when the individual’s period of stay expires, and consequently when they must leave the United States.

In addition to the passport stamp, foreign nationals can retrieve their I-94 arrival/departure record on the Customs and Border Protection (CBP) website which includes their most recent date of entry, and the date their period of authorized stay expires. The date of expiration is the date at which the foreign national must depart the United States. Failure to depart by the date indicated means that the applicant has overstayed their period of authorized stay.

In some cases, the I-94 stamp, or I-94 record will include the notation “D/S” most commonly for individuals on student visas. This notation means that the applicant is expected to leave the United States, when their program of study has ended. The end date of the program of study can be found on the Form I-20 Certificate of Eligibility for Nonimmigrant Student Status. Students should contact their Designated School Official for this information.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers a hot topic that has been frequently asked by our followers: what are the top reasons for CR/IR-1 immigrant visa denials and what can you do about it.

Want to know more? Keep on watching for more information.

Overview

What is a CR-1/IR-1 visa?

A CR-1 or IR-1 visa is an immigrant visa for a spouse of a United States Citizen who is residing abroad. The term “CR” in CR-1 stands for “conditional resident” and is issued to foreign spouses who have been married for less than 2 years. By contrast the term “IR” in IR-1 stands for “immediate relative” and is issued to foreign spouses who have been married for more than 2 years. Those who receive a CR-1 visa will eventually receive a 2-year conditional green card after entering the United States, while those who receive an IR-1 visa will receive a 10-year green card (without condition).

The first step to apply for a CR-1/IR-1 visa is for the U.S. Citizen spouse to file a Petition for Alien Relative, Form I-130, with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign spouse. This petition initiates the immigration process to the United States. Once Form I-130 is approved by USCIS, the petition is transferred to the National Visa Center for pre-processing. At the National Visa Center stage, the applicant must complete the immigrant visa application and provide civil documentation. After sending all required documents to the National Visa Center, the NVC will forward the case to the U.S. Embassy near the foreign spouse and the applicant will wait to be scheduled for an Embassy interview. The Embassy interview is often a make it or break moment for couples who must prove that they have a “bona fide” marriage to be approved for their visa.

What are the top reasons for CR/IR-1 denials?

#1 Not meeting the income requirement for the affidavit of support

The number one reason for spousal visa denials is failing to meet the income requirement for the affidavit of support. As part of the spousal visa application process, the U.S. Citizen spouse must sign the I-864 Affidavit of Support, which is a legally enforceable contract between the U.S. Citizen and the government wherein the U.S. Citizen must sign under penalty of perjury that they have the adequate means to financial support the alien and the alien will not rely on the U.S. government for financial support.

What is the income requirement?

The minimum amount that the U.S. Citizen must make depends on his or her household size. In general, petitioners must make at least 125% of the federal poverty guidelines. However, exceptions exist for petitioners who are on active duty in the U.S. armed forces. Petitioners who do not satisfy the income requirement must apply with a joint sponsor, who must also sign a separate I-864 Affidavit of Support and provide evidence of financial ability. If the petitioner and joint sponsor do not qualify, the spousal visa application will be denied.

To prevent this situation from happening petitioners must make sure well in advance of filing the I-130 application, that they either meet the income requirement, or that they can obtain a joint sponsor who is willing and able to sign the affidavit of support and provide the necessary documentation.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss whether you can file an application to extend your stay on a tourist visa if you have overstayed.

Disclaimer: We do not recommend overstaying your duration of stay on any visa classification, because serious immigration consequences could result. However, this post discusses the options you may have, if you find yourself in the precarious situation where you have already overstayed, and you have a good faith reason for having overstayed.

Overview:

Typically a person is given up to a 6-month period to remain in the United States on a tourist visa. At the end of those 6 months, the foreign national must depart the United States. The question is: are there any special circumstances in which a person may be allowed to extend their stay, where they have overstayed their visa?

In this case, the person stayed past the 6-month period of time allowed in the United States, and did not depart the United States. However, the person had a good faith reason for remaining in the United States. Toward the end of their stay, the individual had just given birth in the United States, and unfortunately some medical complications occurred that kept the individual in the United States past the 6-months authorized by their tourist visa. Because of these complications, the individual could not fly outside of the United States.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss whether a parent of a US Citizen child 21 years of age or older, can adjust status within the US if they overstayed their visa.

Overview: 

In this scenario, a US citizen child is interested in petitioning his or her parent for a green card. In this case, the parent arrived to the United States on a valid visa 12 years ago and overstayed that visa.

Can that parent adjust their status in the US? Can the parent do this process from within the US or overseas?

As long as the parent entered the United States legally by way of a valid visa and the petitioning child is a US Citizen over 21 years of age, the parent is still eligible to apply for adjustment of status within the United States, even if the parent has overstayed their visa. The “overstay” is essentially waived in cases where the petitioner is a U.S. citizen and immediate relative of the beneficiary.

On the adjustment of status application, the overstay must be disclosed.

DUI Offenses

What if my parent obtained a DUI offense while in the US? Are they still eligible to Adjust Status?

A DUI on its own does not bar an applicant from obtaining permanent residence, however the applicant must provide all documentation necessary regarding the offense, such as the final disposition of the offense, and documentation showing what if any fines were paid.

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Welcome back to Immigration Lawyer Blog, where we discuss all things immigration. In this video, we cover a very important topic: can people who overstayed their visa or entered illegally, get a work visa or employee sponsorship?

Recently our office met with a client who was in this very predicament. He had the perfect job opportunity from his dream employer and was now interested in knowing how he could obtain a work visa with his employer’s sponsorship. The problem: he entered the country illegally and since entering had no lawful status in the United States.

Here is where we had to deliver the bad news.

The bottom line

A person who has entered illegally or overstayed the duration of their visa, is not eligible to adjust their status to permanent residence. During the employment sponsorship process, the visa applicant must provide information regarding their entry to the United States. Under current immigration law, a person who has entered without inspection cannot adjust their status in the United States, based on employment sponsorship except under one limited exception called 245(i).

What is 245(i)

245(i) is a provision in the law passed under the Legal Immigration Family Equity (LIFE) Act in the year 2000, enabling certain individuals who are unlawfully present in the United States to apply for adjustment of status, despite their unlawful entry.

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What’s the difference between someone who is undocumented in the United States and someone who is here illegally?

What does it mean to be “undocumented”?

When someone is in the United States “undocumented,” that means that the person entered the United States without inspection (without the proper documentation), and as a result are currently living in the United States without the proper documentation, hence the term “undocumented.”

What does it mean to be in the U.S. “illegally”?

On the other hand, someone who came to the United States on a valid visa (such as a student visa, tourist visa, etc.) and then lost their status, either because they did not renew their visa, or their visa expired, or for some other reason, are in the United States “illegally.” These individuals were legally in the United States at some point but are now in the United States “illegally” because they are now out of status. This is also referred to as a visa overstay.  That is because the individual has now stayed in the United States past the time authorized by their initial visa.

In both cases, the individual is in the United States without authorization because they do not have the proper visa.

Path to Residency

A person who is “undocumented” meaning that they entered the United States without proper inspection, cannot adjust their status to permanent residency so easily even where married to a U.S. Citizen. Undocumented parties married to U.S. Citizens must file a waiver of inadmissibility and in some cases will have to leave the United States before applying for residency.

By contrast, a person who entered the United States with proper inspection, but who is now in the United States illegally because of an overstay, can apply for permanent residency more easily, where married to a U.S. Citizen. These individuals do not have to leave the United States before applying for residency.

The key difference between the two is in whether the person entered the country with inspection. If you entered without inspection, you would be undocumented. If you entered with inspection, but have overstayed your visa, you are in the country illegally.

If you have questions about relating to your status and legalization, please contact us.

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In this video we cover a new USCIS policy that can have devastating consequences on students who overstay their duration of stay in the United States, or otherwise violate their status. This new policy will change the way F-1, J-1, and M students, accrue unlawful presence in the United States, for visa holders have violated the terms of their visa by not attending school or engaging in unauthorized employment.

Background

In the year 1996 Congress passed legislation that previously governed how an individual on a non-immigrant visa type such as an F-1 visa, could accrue unlawful presence. Pursuant to this legislation, visa holders who overstayed for more than 180 days, could be subject to a 3-year bar, while visa holders who overstayed for more than one year, could be subject to a 10-year bar.

Typically, individuals who travel to the United States on a non-immigrant visa type receive an I-94 arrival/departure record and a stamp in their passport indicating the length of their authorized stay in the United States. Failure to abide by the duration of stay results in an immigration violation of the terms and conditions of a non-immigrant visa type.

F, J, and M students are unique in that these individuals do not receive a definitive length of stay within the United States, and instead are issued an I-20 (for F students) or DS-2019 (for J students) that denotes their authorized stay as “D/S” or “Duration of Stay,” meaning that the individual’s stay within the United States is not confined by any particular date, but instead depends upon the conclusion of that individual’s program of study or authorized employment.

While students on an F-1 visa type could violate their status by failing to go to school, they could not accrue unlawful presence within the United States because of the D/S designation. This class of individuals could only accrue unlawful status at the time of being apprehension by an immigration official or by court judgment.

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