What are my options?

[ecdm]

Hi,

New to this forum, wish I would have come across it before.

I am depressed, embarrassed and confused now and I don't know what to do.

I have situation similar to the poster sidd.

I was in the US on F-1 D/S and went out of status in Jan 2001 because I was not able to register (suspended due to academic probation)

At the time I was married and my husband was H-1B. We consulted a lawyer in Feb 2001 and he suggested not to change status to H4 because of chances of getting deported and wait for my husbands GC through 245i.

Anyway, turned out my husband had to switch employers and the new employer did not get his LC in on time and the H-1 ran out end of 2004. I had two kids during this time also.

I left the US with my husband also. I was not part of any removal proceding or any applications to adjust status to INS.

Had no problems leaving he US.

Last year we thought we would apply for visit visa to go visit family in the US and felt, if there was a problem with my history it would show itself in the visa interview or we would bring it up. But it did not as the VO was more interested in my husband's previous histor in the US. My husband got administrative processing and I was told my visa depends on my husband's approval. The VO did not ask any questions of me except if I was going to take my kids with me to the US.

356 days later both the visas were approved. We recently collected them. We were overjoyed that the overstay was not a problem.

While filing away copies of our DS-156 forms my husband we noted that we had replied "NO" to Q38 "Have you ever violated terms of US visa, been unlawfully present, or deported from, the United States?"

Now I am afraid that I may have misrepresented the facts. I don't know what to do.

I was thinking of calling the embassy to speak to the VO and explain that a mistake has been made and they can cancel my visa if that is the end result.

We think that we may have made my situation worse. To make it even more worse, finally my hisbands I-140 is close for approval ~3 months and hopefully he can apply for GC soon, but I would probably get denied.

Any advice would be greatly appreciated.

[monki12]

tough situation....im pretty sure someone with more knowledge will chime in. :wave:

[Laura]

Wow, tough situation. Have you gotten any legal advice from any attorney since leaving?

First thing is, you are going to require a waiver regardless of when you apply for a visa because you overstayed from 2001 to whenever you left in 2004.

It sounds like your husband did not overstay his visa so he should be able to get his green card, but you will require a waiver, I think, for the unlawful presence.

I don't think you should attempt to visit the U.S. because it seems likely your overstay will be exposed, and then they might see that you did misrepresent yourself on the Q38 (which you definitely did). Probably better to law low, wait for your husband's GC and then file a waiver for yourself.

What country are you from?

I hope someone else will comment if some of my interpretation is incorrect. You should really talk to an attorney as well.

[Pinkpig]

If I were you I would not do one other thing until I had consulted with either Laurel Scott at visacentral.net (she does an email or phone consultation for $150.00 or Heather Poole (her link is in my signature). Heather does not charge for the consultation. I know that both of these lawyers will give you the straight scoop. I can not say that about any other lawyer (although I am sure there are other competent ones). I know that these two will give you a direction to move forward.


Immigration is complicated and the least little thing can get you in a mess. Your case is very complicated and we could interpret what we know for you but the risk of something we do not know about messing you up is way too great.

1) Giving false information in order to get immigration benefits is fraud/misrepresentation and will require a waiver to overcome.

2) Overstaying a visa will need a waiver to overcome.

3) Then you have a work visa involved here. We really do not have any experience with work visas.

You need legal representation because in immigration you have no appeal. What they say goes, so you want all of your ducks lined up before you deal with them. Good Luck!

[ecdm]

Wow, tough situation. Have you gotten any legal advice from any attorney since leaving?

Yes, but only after the visa application, lawyer suggests I-212 (6) (c). I can see from other posts in forum that I-212 (6) (c) is almost always denied.

First thing is, you are going to require a waiver regardless of when you apply for a visa because you overstayed from 2001 to whenever you left in 2004.

Overstay I can understand, but are'nt the waivers for unlawful presence. for D/S since there is no INS or IJ finding, unlawful presence does not start?

What country are you from?
Pakistan

[Laura]

Okay, I am not knowledgeable on the IJ finding and when illegal presence starts. Definitely a question for a good attorney like those Pinkpig mentioned.

The I-601 can overcome overstay as well as misrepresentation, it just requires a little stronger case.

Waivers filed in Islamabad I believe end up in Rome now. Confusing how that works, but there are other Rome filers in the Europe area.

[Zia80]

Ecdm, I would advice you to consult Laurel for her phone consultation.I wanted to also, but I am only 2 weeks from my interview and at this point my case cannot be helped.

I dont think the "free consultation" will tell you anything you don't already know....

At this point you already know that you will need a waiver. Thats what the Lawyer will want you to pursue through them, so no sense just having them tell you that you need it. Pay the $150 and get proper, valid advice.
Just my opinion.
Zia80

[douginguam]

I most strongly recommend a consultation with a good immigration lawyer - student visas with D/S I-94's are especially tricky, and review of what was done under the visa can lead to very good (unexpected) results.
It is quite possible that a good lawyer will study your case and be able to convince you you have done nothing wrong (and no misrep in your recent application) and that you can/should continue to take your imminent trip on the visitors visa.
But, don't jump to conclusions - work only on facts.
It is quite possible that taking the trip on the visitors visa changes nothing - if you have a misrep already, then this may not make it worse. However, an attempt at entry - dealing with ICE and not USCIS or the Embassy - may lead to the discovery of your past (student) visa issues and hence your misrep.....and being denied entry and turned around at the border and an additional problem to overcome.....
There are too many possibilities - talk to a good immigration lawyer!