scrubbedexpat099

Sounds very much he has a 10 year ban.

So until be has been out of the US for 10 years, kicks in on the day he left, he has a ban which can be overcome with a waiver.

Sounds like you have two issues, meeting the financial requirement which can best be done by getting someone else to help, a co or joint sponsor, I know Ian gets upset if you use the wrong term.

What happens is that you file all the paperwork, he goes for his interview probably beginning of next year and he is found inadmissible. You then file a waiver which takes about 5 months or so. A simple overstay is no biggie but still needs to be done properly, some people can do it themselves, others use a lawyer. I can look up a list of recommended ones if it helps.

If you want to do some reading try this:

Home | Scott and Associates

vroni

reading through now Thank you

Noorah101

It's becoming more clear that the overstay was VERY recent. However, a couple more questions that need exact answers:

1. Regardless of when his work visa expired (Sept 2009), when did his I-94 expire? His work visa could have expired in 2009, but if his I-94 was good until 2012 (and he was still working for the sponsoring company), then he did not overstay.

2. When exactly did he stop working for the sponsoring company? Month and year?

3. When exactly did he leave the USA? 2012, but what month?

It SOUNDS like he overstayed more than a year, just filling in the gaps in your information. If that is indeed the case, and he left in 2012, he has a 10-year ban right now which will be lifted in 2025.

You will need to consult with an immigration attorney to see if there is a waiver for this ban, and if he qualifies to get it.

Rene

scrubbedexpat099

2022

There is a waiver, see above.

ian-mstm

With respect, "this thing" will loom over you for quite some time if you want to live in the US as a family. The issue pretty much goes away if you decide to move to the UK. Quite frankly, you can't have it both ways!

Ian

vroni

I don't know when his I94 expired however he stopped working for the sponsoring company the same day his visa expired sept 2009, the branch in the US went under there and then, or at least that was when they made him redundant the actual day they went under I am not sure of, but they did. I suppose that answers #2 as well
August 4, 2012

wouldn't it start when he left.. so it would be lifted in 2022, right?

vroni

"The three and ten year bars are not “triggered” until the person actually departs the country, so someone who entered on a valid visa, overstayed for a lengthy period of time and is eligible to adjust status through, for example, a US citizen spouse, that person will be able to avoid triggering the unlawful presence ground of inadmissibility because he/she can adjust status without departing."
does this mean he would not have been considered inadmissible if he had remained but since he did it triggered the ban? Doesn't seem right..
It seems he is qualified for the waiver however from what I read.

scrubbedexpat099

Overstays are forgiven when adjusting through marriage to a USC. So yes if he had not left he could have adjusted.

Water under the bridge.

Noorah101

Yes, sorry, 2022. If he had overstayed and then did an adjustment of status while still inside the USA, that would have been approved. Now that he left the USA, he had a ban from returning, which will require going through the Immigrant visa process and then applying for a waiver. Looking at about 16 - 18 months or so, from start to finish.

Rene

Owen778

You can look up I-94 info on the CBP website, here:
https://i94.cbp.dhs.gov/I94/request.html

This will tell you the actual I-94 expiry, instead of the visa expiry.

vroni

Just a thought but.. maybe we are approaching this wrong. Would it be a good idea to go the work visa route instead? He is a software engineer with high demand skills, would he still be eligible for the waiver if we went that route? Just brainstorming..

scrubbedexpat099

Who would employ him knowing he had to go though the waiver process and would need an internal transfer.

ian-mstm

He's eligible if the interviewing officer thinks a waiver is appropriate. It has almost nothing to do with the type of visa! A waiver will take the same length of time. One drawback... the risk of embarrassment - because it likely means revealing to the employer why a waiver is required and that it'll take 6 months to get an answer.


An employment-based visa does have two advantages, though... 1) it eliminates the need for an I-864 from both of you; and 2) he will likely get some sort of health care insurance package when hired - which may be of benefit for your son.

Bottom line - there's almost nothing to lose by trying... and you are allowed to have two visa applications in process at the same time.

Ian