aezlin

Hello,
My sister has a B2 tourist visa. Last time she was here she overystayed for 12 days (I94 stated until Dec 6, but she left on Dec 18)...
Her visa is still valid, they did take her I-94 when leaving the US. Now she wants to come back here...to visit my family...will it be a problem at the airport?

Do the Immigration has a system/record of when she left the US?

Just a brief information:
Arrived US on Dec 16, 2003
Left US to Jamaica on May 29, 2004 - vacation
Came back to the US on June 6, 2004 (got another 6 months on I-94 - stamped until Dec 6)
Left US on Dec 18, 2004...airline took her I94..

Today, February 24, 2005 - plan to come back for a visit...
Do you think it will all depends on the officer at the window???
(The reason she was here for a while was because she was helping me with new baby....)

Help!
Thanks.

Ingo Pakleppa

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aezlin wrote:
    | Hello,
    | My sister has a B2 tourist visa. Last time she was here she overystayed
    | for 12 days (I94 stated until Dec 6, but she left on Dec 18)...
    | Her visa is still valid, they did take her I-94 when leaving the US. Now
    | she wants to come back here...to visit my family...will it be a problem
    | at the airport?

Actually, her visa is probably *not* valid. Overstaying automatically
cancels the visa that she used to enter the USA. She needs to apply for
a new B-2 visa at a consulate (and, see below, this will almost
certainly be denied).

    | Do the Immigration has a system/record of when she left the US?
    |
    | Just a brief information:
    | Arrived US on Dec 16, 2003
    | Left US to Jamaica on May 29, 2004 - vacation
    | Came back to the US on June 6, 2004 (got another 6 months on I-94 -
    | stamped until Dec 6)
    | Left US on Dec 18, 2004...airline took her I94..

U-oh. Odds are that the new B-2 will be denied with this record. She
will need to remain outside the USA for quite a while before returning
to the USA - I would suggest at least a year.

With a B-2, you are supposed to spend vacations in the USA, and the
majority outside. She spent nearly the whole year 2004 in the USA,
except for one week. Even without the overstay, she would likely be
denied admission.

    | Today, February 24, 2005 - plan to come back for a visit...
    | Do you think it will all depends on the officer at the window???
    | (The reason she was here for a while was because she was helping me with
    | new baby....)

That's even worse. US immigration law considers this working, so she was
actually violating the terms of her status and could have been deported.
The rationale is that instead of bringing an unpaid friend or relative
from abroad, you need to hire an American nanny and pay the prevailing
wage - unrealistic as that is. There have been cases of relatives being
denied admission because they wanted to care for and say goodbye to a
dying parent!

In the end, it does depend on the officer at the window, but if he
follows his guidelines and knows all the facts, he would have to deny
her admission.

- --
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aezlin

OK. I totally agree with you that her visa is totally void once she overstayed passed her I-94. I read INA Section 222(g):

"ALTHOUGH ANY ALIEN WHO OVERSTAYS ON AN NIV(Non Immigrant Visa) IS SUBJECT TO HAVING THE NIV AUTOMATICALLY VOIDED, 222(G) HAS NO EFFECT ON ANY FUTURE NIV APPLICATIONS BY THAT ALIEN UNLESS/UNLESS THE ALIEN IS APPLYING FOR A NEW VISA OUTSIDE HIS OR HER COUNTRY OF NATIONALITY. IF AN ALIEN OVERSTAYS AND THEN RETURNS TO HIS/HER COUNTRY OF NATIONALITY TO APPLY FOR A NEW NIV, THE ALIEN HAS IN FACT COMPLIED WITH 222(G) AND COULD NOT BE DENIED VISA PROCESSING ON 222(G) GROUNDS."

From the above paragraph, last sentence - what do you think "could not be denied processing on 222(g) grounds" means? Is it mean that:
a) They have to process her visa application - but that doesn't mean her application will be approved (could be denied)
b) They have to process the application and have to approve it?

Of course, she will not tell the INS that the reason she was here to help me with the baby...but just for a visit and spend time with me, since I've been here for so long....

Thanks.

crg

They couldn't the new visa deny based on 222(g) grounds, but they have other grounds to deny her application. They could deny it because she failed to overcome the presumption she is in immigrant, or that her intent is to continue to perform unauthorized work. They really don't have to approve anything.

"Of course, she will not tell the INS that the reason she was here to help me with the baby...but just for a visit and spend time with me, since I've been here for so long...."

That would be a willful misrepresentation of a material fact to gain an immigration benefit, and could be considered fraud. It's not a good idea.

jjf

aezlin wrote:
    > OK. I totally agree with you that her visa is totally void once she
    > overstayed passed her I-94. I read INA Section 222(g):
    > "ALTHOUGH ANY ALIEN WHO OVERSTAYS ON AN NIV(Non Immigrant Visa) IS
    > SUBJECT TO HAVING THE NIV AUTOMATICALLY VOIDED, 222(G) HAS NO EFFECT
ON
    > ANY FUTURE NIV APPLICATIONS BY THAT ALIEN UNLESS/UNLESS THE ALIEN IS
    > APPLYING FOR A NEW VISA OUTSIDE HIS OR HER COUNTRY OF NATIONALITY. IF
AN
    > ALIEN OVERSTAYS AND THEN RETURNS TO HIS/HER COUNTRY OF NATIONALITY TO
    > APPLY FOR A NEW NIV, THE ALIEN HAS IN FACT COMPLIED WITH 222(G) AND
    > COULD NOT BE DENIED VISA PROCESSING ON 222(G) GROUNDS."
    > From the above paragraph, last sentence - what do you think "could
not
    > be denied processing on 222(g) grounds" means? Is it mean that:
    > a) They have to process her visa application - but that doesn't
mean
    > her application will be approved (could be denied)
    > b) They have to process the application and have to approve it?

If she applies for a visa somewhere other than her country of
nationality,
they can deny processing because of 222(g). If she applies in her
country
of nationality, they can't deny it because of 222(g). It's as simple as
that - they can obviously still deny it for any other reason.

    > Of course, she will not tell the INS that the reason she was here to
    > help me with the baby...but just for a visit and spend time with me,
    > since I've been here for so long....

It's never a good idea to lie in immigration matters. Such lies have a
habit of coming back to haunt people later.

scrubbedexpat099

You need to bear in mind that a Visa or acces to VWP is no guarantee of admission anyway, it just gets you on the plane.

Without the overstay she would have a problem as it looks that she has been using a holiday visa to live in the US.

bionomique

B2's need to show substantial ties to the home country.