Legal Question in Immigration Law in Virginia

Visa overstay and getting married

A friend came to the US on a tourist VISA and overstayed. She had an Amnesty case in Immigration court but had to withdrawl the case because a family member in her home country became ill. She departed the US and voluntarily withdrew her case and the judge did not impose any penalties. What hurdles will she had to overcome if she wants to marry a US citizen and return to the US?

Asked on 7/31/08, 11:45 am

2 Answers from Attorneys

Melina Merino Attorney Melina Merino
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Re: Visa overstay and getting married

It would depend on how long did she overstay her visa. If she overstayed for more than 180 days, she would be barred from returning in 3 years; if she overstayed for more than a year, she would be barred from returning in 10 years. Her US Citizen husband would have to submit a petition on her behalf and also submit a waiver of inadmissibility based on the extreme hardship he would suffer if she were not allowed to return back to the USA in less time than the time she is required to. These waivers have to be very well documented and are very difficult to prove. It seems like your friend and her husband would definitely benefit from the assistance of an attorney. Feel free to contact me if you would like to discuss this matter privately or if you need further assistance. Good luck!

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7/31/08, 2:13 pm
Marc Seguinot Seguinot & Associates, P.C.
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Re: Visa overstay and getting married

What country is she from? Does her citizen fiance intend to file a fiance visa for her, or is he going to marry her in her country? The major hurdle she will have to overcome is her period of unlawful presence. If it is over 6 months, she will have to overcome a 3-year bar to reenter the U.S.; if it is over 1 year, she will have to overcome a 10-year bar. If a fiance petition application is filed on her behalf, she will require a waiver of the bar which means she would have to file, or her fiance will have to file an I-601 waiver to waive the barred period. If she marries the U.S. citizen before she reenters, then we are talking about filing an alien relative petition with the waiver. Unless she has good reasons for the overstay (and I have to admit, if she had considered asylum and then withdrew to return to her country, she could not have had much reasonable fear to return, eh?) Her fiance should consult with a good immigration lawyer to determine whether a fiance petition or marriage in her country would help expedite matters. Best of luck.

Marc Seguinot

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8/02/08, 9:20 am

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