How does overstaying affect filing?
Dear Mrs Walker-Huntington,
I hope you’re well. Some years ago, my mother overstayed in the United States on a tourist visa. She was promptly sent back to Jamaica the following day. This was over 12 years ago.
Will that affect her being filed for?
Regards
JR
Dear JR,
Your email is not specific, but I am assuming your mother overstayed her visa in America and tried to return and was stopped on the return trip at the airport. I am not clear if there was any issue of a ‘back stamp’ in her passport, so I will address both issues.
Any person who remains in America beyond their allotted time as a nonimmigrant and then leaves the country faces a mandatory bar to returning – depending on the length of the overstay. If you overstay six months to a year and leave the United States – the mandatory bar is three years. If the overstay period is a year or more – the mandatory bar is 10 years. After the mandatory period has expired and if there is an immigrant visa petition – the bar will not be held against the applicant. However, if the bar is still in effect and an immigrant visa is filed, the intending immigrant will require a waiver of the mandatory bar.
If the person is applying for a nonimmigrant visa, it is up to the consular officer to decide if they want to give that person a visa again – considering that they previously abused their visa. Even if the overstay period was less than six months, the consular officer can still use any period of overstay against an applicant for a nonimmigrant visa.
In some instances when persons overstay their visas, they try to conceal it from US immigration officers by having the date they arrived in Jamaica changed to reflect a shorter period of stay in America. The US Customs and Border Protection officers are trained to spot any tampering with US visas or fraudulent date stamps. If any attempt to conceal the actual time spent in America is detected, the US visa will be cancelled, and the person removed from the United States.
Tampering with a US visa or changing your return date in your passport is immigration fraud and makes a person permanently inadmissible to the United States. Time does not cure this inadmissibility. The only way to gain admission to the United States after committing immigration fraud, is with the grant of a non-immigrant or immigrant waiver (with a qualifying relative).
If your mother committed fraud with immigration and is now being filed for, she would need a spouse or a parent as her petitioner to be eligible for a waiver. A fraud waiver does not flow from a son/daughter to a parent, although it flows from a parent to a son/daughter.
Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a diversity and inclusion consultant, mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com