What are the Penalties for Overstaying your Visa

There are two levels of penalties for overstaying a US visa. Which penalty you receive depends on how long you
have overstayed your visa.

• If
  you overstay a US visa by more than 180 days but less than one year after
  the date that your visa and any applicable extensions have expired, but
  you leave before any official, formal removal procedures (i.e.
  deportation) are instituted against you, you will be banned from
  re-entering the United States for a period of three years as punishment
  for overstaying your visa.  In addition, overstaying will void any existing
  visa that you may have that has not already expired.
• If
  you overstay your visit in the United States by more than one year, then
  leave prior to any removal or deportation proceedings are initiated against you, you will be subsequently banned
  from re-entering the United States for a period of ten years as a result.
  In addition, you may not be able to convert any visa that you had,
  or were applying for, into permanent resident status, and you will be
  unable to receive a new visa from a convenient location to enter the
  United States.  This means that you will have to apply again for a
  United States visa from the US consulate in your home country once you are
  again eligible to apply for a US visa.

Because of the severity of these penalties, it is important that you follow and abide by the expiration date of
your visa and any applicable extensions you may have applied for.  In order to keep your visa in good standing, you will want
to be sure that you obey these dates and leave the United States on time so that you remain eligible to return to the US at a later date. If you have
overstayed your visa and have married a US citizen, you can normally apply for an Adjustment of Status and obtain your Green Card to stay.

If you have questions about your
status and would like to discuss your situation, you are welcome to call me
toll free at 1-888-515-3529. I do not charge for legal consultations and
welcome your call.

Jeff Pettys

www.marriagevisaservices.com

1-888-515-3529

Family Based Visa and Fiance Visa Petitons Under the Adam Walsh Act

Application of the Adam Walsh Act presents certain difficulties for an immigration attorney.  The Act contains two provisions that amend the Immigration and Nationality Act (INA) Sections 204(a)(1)(A)(i), 204(a)(1)(B)(i), 101(a)(15)(K), and 237(a)(2)(A) of the INA to prohibit U.S. citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petitions on behalf of any beneficiary, unless the Secretary of Homeland Security (Secretary) determines, in his sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.

Section 402(b) of the Adam Walsh Act amends section 101(a)(15)(K) of the INA to bar U.S. citizens convicted of these offenses from filing Nonimmigrant Visa petitions to classify their fiancé(e)s, spouses, or minor children as eligible for “K” nonimmigrant status, unless the Secretary determines, in his sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.

Visa Petitions and the Walsh Act

1. Prohibitions Under the Walsh Act
2. Approved Family Based Petitions May Be Revoked Under Adam Walsh Act
3. What is a “Specified Offense Against a Minor”?
4. Procedures for Determining whether Petitioner “Poses No Risk” to Beneficiary
5. Visa Denials under Adam Walsh Act

Prohibitions Under the Walsh Act

A petitioner who has been convicted of a specified offense against a minor is not simply prohibited from filing on behalf of a minor child.  The petitioner is prohibited from filing on behalf of “any” family-based beneficiary under sections 204(a)(1)(A)(i) and 204(a)(1)(B)(i) of the Act or in accordance with section 101(a)(15)(K) of the Act.  “Any beneficiary” includes a spouse, a fiancé(e), a parent, an unmarried child, an unmarried son or daughter over 21 years of age, an orphan, a married son or daughter, a brother or sister, and any derivative beneficiary permitted to apply for an immigrant visa on the basis of his or her relationship to the principal beneficiary of a family-based petition

The term “specified offense against a minor” means an offense against a minor (defined as an individual who has not attained the age of 18 years) that involves any of the following:

1. An offense (unless committed by a parent or guardian) involving kidnapping;
2. An offense (unless committed by a parent or guardian) involving false imprisonment;
3. Solicitation to engage in sexual conduct;
4. Use in a sexual performance;
5. Solicitation to practice prostitution;
6. Video voyeurism as described in section 1801 of Title 18, United States Code;
7. Possession, production, or distribution of child pornography;
8. Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or
9. Any conduct that by its nature is a sex offense against a minor.

Section 401 of the Adam Walsh Act amends section 237(a)(2)(A) of the INA by adding a new subparagraph (v).  Under new section 237(a)(2)(A)(v), an alien who is convicted under new 18 USC 2250, for failing to register as a sex offender, is subject to removal as a deportable alien.

Approved Family Based Petitions May Be Revoked Under Adam Walsh Act

If, at any time prior to adjustment of status or consular processing, USCIS becomes aware that the petitioner has a conviction for a specified offense against a minor, it will revoke the approved family-based immigrant visa petition or reopen and reconsider the I-129F.

Further, the approved immigrant visa petitions may be reopened for “good and sufficient cause” under Section 205 of the Act.  Revocation of the approval is allowed under 8 CFR 205.2 if the petitioner has been convicted of a specified offense against a minor and USCIS finds that the petitioner poses risk to the beneficiary.  Therefore, USCIS conducts additional IBIS checks on the petitioner of the family-based immigrant petition at the time the beneficiary adjusts status.  Pursuant to 8 CFR 103.5(a)(5)(ii) USCIS may reopen and reconsider the decision on I-129F if the petitioner has been convicted of a specified offense against a minor and USCIS determines that the petitioner poses any risk to the beneficiary.

What is a “Specified Offense Against a Minor”?

The phrase “specified offense against a minor” in the Adam Walsh Act is defined broadly to take into account that these offenses may be named differently in a wide variety of Federal, State and foreign criminal statutes.  The statutory list is not composed of specific statutory violations.

As defined in the relevant criminal statute, for a conviction to be deemed a specified offense against a minor, the essential elements of the crime for which the petitioner was convicted must be substantially similar to an offense defined as such in the Adam Walsh Act.  USCIS will issue a Request for Evidence (RFE) for all police arrest records and court disposition documents and schedule the petitioner for fingerprints if the petitioner’s IBIS check reveals a hit for any offense that is or may be a “specified offense against a minor” as defined above.

If there is an IBIS hit or other indication that a lawful permanent resident petitioner may have a conviction for a specified offense against a minor as defined in the Adam Walsh Act, the USCIS will suspend the case adjudication.  If the offense meets the definition of an egregious public safety threat, USCIS will refer the case to U.S. Immigration and Customs Enforcement (ICE) for initiation of removal proceedings against petitioner.

If the petition has been approved or is being processed and there is an IBIS hit, USCIS will issue a RFE or Notice of Intent to Revoke (NOIR) and request all police arrest records and court disposition documents.  If the petitioner was previously identified as posing risk, USCIS will obtain petitioner’s current rap sheet.

If the petitioner fails to respond to the RFE or NOIR, the petition is denied or revoked accordingly.  If the fingerprint results and the evidence submitted in response to an RFE or NOIR indicate that the petitioner was not convicted of a specified offense against a minor as defined by the Adam Walsh Act, USCIS will process the petition in accordance with 8 CFR 204.

If, after review of the fingerprint results and the evidence submitted in response to the RFE or NOIR USCIS is not sure whether the petitioner’s conviction is a specified offense against a minor, or the criminal case against the petitioner is still pending and its disposition is unknown, USCIS will send petitioner’s file for supervisory review and opinion.  In some cases, ICE may decide to initiate removal proceedings against any lawful permanent resident who is deportable under section 237(a)(2)(A)(v) of the INA (conviction for having failed to register as a sex offender).

If, after review of the fingerprint results the evidence submitted in response to the RFE or NOIR, USCIS finds that the petitioner has been convicted of a specified offense against a minor as defined by the Adam Walsh Act, USCIS will determine whether the petitioner poses a risk to the beneficiary.

Procedures for Determining whether Petitioner “Poses No Risk” to Beneficiary

The main purpose of section 402 of the Adam Walsh Act is to ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States.  USCIS, therefore, may not approve a family-based petition (I-130 or I-129F) if the petitioner has a conviction for a specified offense against a minor unless USCIS first determines that the petitioner poses no risk to the beneficiary on whose behalf a petition was filed.  Under section 402 of the Adam Walsh Act, only the Secretary has this discretion and the “sole and unreviewable” authority to decide whether a petitioner poses any risk to the intended beneficiary.  The phrase “poses no risk to the beneficiary” means that the petitioner must pose no risk to the safety or well-being of the principal or derivative beneficiaries.

Evidence of Rehabilitation

We recommend submission of sufficient evidence of rehabilitation if the petitioner is implicated by the Adam Walsh Act.  Petitioner must demonstrate by clear evidence and beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary.  The initially filed petition or response to an RFE or NOIR must include whatever evidence and legal argument the petitioner wants USCIS to consider in making its risk determination.  Examples of such evidence include, but are not limited to:

• Certified records indicating successful completion of counseling or rehabilitation programs;
• Certified evaluations conducted by licensed professionals, such as psychiatrists, clinical psychologists, or clinical social workers, which attest to the degree of a petitioner’s rehabilitation or behavior modification;
• Evidence demonstrating intervening good and exemplary service to the community or in the uniformed services;
• Certified copies of police reports and court records relating to the offense (the court records must include the original indictment or other charging document, any superseding charging document, any pre-sentencing report, and the conviction judgment); and
• News accounts and trial transcripts describing the nature and circumstances surrounding the petitioner’s specified offense(s) against a minor and any other criminal, violent, or abusive behavior incidents, arrests, and convictions.

The determination of whether a petitioner’s evidence is credible, and the weight and probative value to be given that evidence, shall be within the sole and unreviewable discretion of USCIS.

Factors USCIS Considers in Adjudication Process

USCIS considers all known factors that are relevant to determining whether the petitioner poses any risk to the safety and well-being of the beneficiary.  Here is the non-exclusive list of the factors:

1. The nature and severity of the petitioner’s specified offense against a minor, including all facts and circumstances underlying the offense;
2. The petitioner’s criminal history;
3. The nature, severity, and mitigating circumstances of any arrests, convictions, or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary;
4. The relationship of the petitioner to the principal beneficiary and any derivative beneficiary;
5. The age and, if relevant, the gender of the beneficiary;
6. Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and
7. The degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary, evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between incidence of violent, criminal, or abusive behavior and the submission of the petition.

The USCIS automatically presumes that risk exists in any case where the intended beneficiary is a child, irrespective of the nature and severity of the petitioner’s specified offense and other past criminal acts and irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another.

During the application process our client has clear understanding that the burden is upon him/her to rebut and overcome the presumption of risk by providing credible and persuasive evidence of rehabilitation and any other relevant evidence that proves, beyond any reasonable doubt, that he or she poses no risk to the intended child beneficiary.  Our attorneys carefully gather, review and explain the available evidence in the light most favorable to the petitioner.

In cases where none of the intended beneficiaries are children, USCIS closely examines the petitioner’s specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary.  It considers past acts of spousal abuse or other acts of violence.  The fact that a petitioner’s past criminal acts may have been perpetrated only against children or that the petitioner and beneficiary will not be residing either in the same household or within close proximity to one another may not, in and of themselves, are sufficient to convince USCIS that the petitioner poses no risk to the adult beneficiary.

In case of an adult beneficiary, our client is advised that the burden is upon the petitioner to prove, beyond any reasonable doubt, that he or she poses no risk to the intended adult beneficiary.  Therefore, it is important to prepare and present documents in the light most favorable to the petitioner that the petitioner poses no risk to the beneficiary.  If no such evidence is presented, USCIS will deny the application.

If the USCIS adjudicating officer is uncertain as to whether the petitioner poses no risk to the beneficiary, or if the adjudicator is finding it difficult to articulate the factual basis for the denial, the office will consult with his/her supervisor and/or USCIS counsel.

USCIS cannot approve the petition subject to Adam Walsh Act without guidance from the USCIS’ headquarters.

Denials under Adam Walsh Act

The denial or revocation of orphan and fiancé cases may be appealed to the Administrative Appeals Office (“AAO”).  Section 402 of the Adam Walsh Act does not affect the AAO’s jurisdiction in orphan and fiancé/fiancée cases. 

This information is general in nature and is not specific legal advice.  It does not create an attorney-client relationship.  For more detailed information regarding Adam Walsh Act and how it may apply to you, please contact our office.

If you you have a question about the K1 visa or the process of obtaining a K1 visa , please feel free to call me for a free legal
consultation. I can be reached toll free at 1-888-515-3529. You can also email me at info@marriagevisaservices.com.

Source of article

Can I become a Legal Permanent Resident after getting married to a US citizen if I am currently in the US and illegal?

The simple answer is normally yes, so long as you entered the US legally.  If you entered the US illegally (by
crossing the border without inspection) than the process of becoming legal,
even after marriage to a US citizen is much more difficult.

Many of my clients have married someone who entered the US on a student, tourist or business visa and
overstayed. Their spouses visa has long expired and they are now considered
illegal. So long as the illegal spouse has not been subjected to any time of
removal process and their marriage is legitimate and genuine, then they can
apply for an adjustment of status and obtain their green card. In this senior,
USCIS will likely approve the application.

If you have questions about your immigration status and would like more information about obtaining a green card
through marriage to a US citizen, you are welcome to
call me tool free at  1-888-515-3529. I do not charge for legal consultations.

Jeff Pettys

www.marriagevisaservices.com

1-888-515-3529

My petition for a Fiance Visa has expired, what can I do?

An approved I-129F petition is valid for four months from the
date of approval by USCIS. If it expires, you should contact the us Embassy or
US Consulate where the file will be reviewed and request an extention. For good
cause, most Embassy or consulate offices will extend the validity of the
petition if it expires before visa processing is completed.

If you you have a question about the K1 visa or the process of
obtaining a K1 visa , please feel free to call me for a free legal
consultation. I can be reached toll free at 1-888-515-3529. You can also email
me at info@marriagevisaservices.com.

For Immigration puposes, who is a Fiance?

What is a Fiance visa?

Working with The US Embassy in Korea to obtain your K1 Fiance Visa after receiving approval from USCIS

Obtaining a K1 fiance visa is typically a two step process. First you must file the reguired forms and documenst with USCIS and then wait for the approval. Once approved, USCIS will notify the US Embassy or US consulate posts nearest to your finace that the application has been approved. Then you are required to submit additional forms and documenst to the US Embassy prior to your K1 fiance interview.

Each Embassy or Consulate location has its own set or rules and procedures. In this and subsequesnt articles on the subject, we will try to provide country specifc information to help with the process. Keep in mind, the polices and procedures change often, so its always best to review the Embassies rules and procedures online. For a listing of the US Embassies worldwide, you can visit the US State Department web site at www.state.gov.

Seoul, Korea

When the U.S. Embassy in Seoul, Korea receives notice of an approved I-129F, it sends instructions and forms to the applicant. The instructions tell the applicant to gather and hold the following documents prior to the K-1 interview:

• Police certificates from countries where the beneficiary has resided after the age of 16
• Medical examination of the applicant
• Sworn affidavit of financial support (Form I-134) from the petitioner, with evidence of income and assets attached
• Signed and dated letter from the petitioner addressed to the U.S. Consul, reaffirming the petitioner’s intent to sponsor the beneficiary as a fiancé and to marry in the U.S. This reaffirmation letter will revalidate the I-129F if its INS approval is more than 4 months old

For Korean applicants who have only lived in Korea, it takes a minimum of 4 weeks to complete the required pre-interview steps. It will take longer for other applicants. After gathering all the necessary documents, the applicant must request a K-1 visa interview. The applicant must bring all of the required documents to the interview.

A K-1 visa will be delivered back to the applicant via Embassy-approved courier within several working days if the applicant is found to be qualified. Processing time for each case differs depending on the circumstances of the case, but generaly the process takes between 30-90 days.

Working with The US Embassy in Thailand to obtain your K1 Fiance Visa after reciving approval from USCIS

Obtaining a K1 fiance visa is typically a two step process. First you must file the reguired forms and documenst with USCIS and then wait for the approval. Once approved, USCIS will notify the US Embassy or US consulate posts nearest to your finace that the application has been approved. Then you are required to submit additional forms and documenst to the US Embassy prior to your K1 fiance interview.

Each Embassy or Consulate location has its own set or rules and procedures. In this and subsequesnt articles on the subject, we will try to provide country specifc information to help with the process. Keep in mind, the polices and procedures change often, so its always best to review the Embassies rules and procedures online. For a listing of the US Embassies worldwide, you can visit the US State Department web site at www.state.gov.

Thailand: Bangkok

When the US Embassy’s Immigrant Visa Unit in Bangkok receives the approved K-1 petition from the NVC it processes the newly arrived case and sends out the instructions packet (packet 3), including medical examination forms, directly to the visa applicant’s address in Thailand. For Cambodian applicants, the Packet 3 is mailed to the petitioner’s address in the United States.

Finally, once the visa applicant returns Packet 3 to the Embassy, the IV Unit in Bangkok sends out the appointment letter (Packet 4.) The letter notifies the applicant of the date for the K1 visa interview. For Cambodian K1 applicants, the Packet 4 is mailed to the petitioner’s address in the United States.

Fron our experience, the visa interview is normally scheduled 10-12 weeks after the Packet 3 materials are returned.

Working with The US Embassy in Philippines to obtain your K1 Fiance Visa after reciving approval from USCIS

Obtaining a K1 fiance visa is typically a two step process. First you must file the reguired forms and documenst with USCIS and then wait for the approval. Once approved, USCIS will notify the US Embassy or US consulate posts nearest to your finace that the application has been approved. Then you are required to submit additional forms and documenst to the US Embassy prior to your K1 fiance interview.

Each Embassy or Consulate location has its own set or rules and procedures. In this and subsequesnt articles on the subject, we will try to provide country specifc information to help with the process. Keep in mind, the polices and procedures change often, so its always best to review the Embassies rules and procedures online. For a listing of the US Embassies worldwide, you can visit the US State Department web site at www.state.gov.

Manila, Philippines

When the US Embassy, Manila receives notice of the the approved K-1 petition, it will send information to the finace with instruction for completion. The letter will provide a link to their current instructiosn.

Currently, the Embassy requires completion of the DS 156, DS 156K and DS 157, and I-134. 

Note: It is important that the petition has the applicant’s correct address and contact number, otherwise the Embassy will not be able to send the K packet, the medical and visa interview appointments to the beneficiary. The NVC and the Embassy must be informed of any change in the applicant’s address.

After the applicant pays the non-refundable application/processing fee and completes the required medical examination at St. Luke’s Medical Center Extension Clinic, he/she appears at the Embassy for the scheduled visa interview with all the required documents. Interviews of K applicants are scheduled only on Fridays.

The consular officer adjudicates the application based on the visa interview, documents submitted by the applicant and any relevant information available to the Embassy, and determines the applicant’s eligibility to be issued the K visa. If the application is approved, the visa will be delivered to the applicant’s residence by a guaranteed courier service in 7 to 10 days. If the consular officer determines that the applicant is not eligible for visa issuance, this will be explained to the applicant who will be provided a written refusal sheet that informs her/him:

• How the visa refusal may be overcome with additional documentation or information
• To await notification from the Embassy if the case will require further review; or
• The basis for the determination of visa ineligibility under U.S. immigration law and if a waiver of ineligibility is available

Working with The US Embassy in Vietnam to obtain your K1 Fiance Visa after reciving approval from USCIS

Obtaining a K1 fiance visa is typically a two step process. First you must file the reguired forms and documenst with USCIS and then wait for the approval. Once approved, USCIS will notify the US Embassy or US consulate posts nearest to your finace that the application has been approved. Then you are required to submit additional forms and documenst to the US Embassy prior to your K1 fiance interview.

Each Embassy or Consulate location has its own set or rules and procedures. In this and subsequesnt articles on the subject, we will try to provide country specifc information to help with the process. Keep in mind, the polices and procedures change often, so its always best to review the Embassies rules and procedures online. For a listing of the US Embassies worldwide, you can visit the US State Department web site at www.state.gov.

Vietnam: Ho Chi Minh

After the US Embassy, Ho Chi Minh City receives the approved K-1 petition, it completes administrative processing and sends the applicant an Instruction Package approximately two months after receiving the petition. Once the applicant informs the Embassy that he or she is ready for a visa interview, it schedules a visa interview date for approximately three months later and sends the applicant an Appointment Package.

During the visa interview, it is the applicant’s responsibility to provide evidence of a bona fide relationship with the petitioner. The consular officer will use the interview as well as the information submitted to make a decision.

Section 221(g) of the U.S. Immigration and Nationality Act states that visa applications lacking required documents must be denied until such time as those documents are submitted and found to be sufficient. If, for any reason, the applicant is not eligible for a visa at the time of the interview, the applicant will receive an explanation in writing and a request for the specific documents still required, if any.

Applicants refused under Section 221(g) who are specifically requested to submit more documents may submit the additional information either via registered mail or in person at the Consulate between 1:00 p.m. and 3:00 p.m. Monday through Friday, except holidays. The applicant should include the blue or green refusal sheet asking for additional information.

Currently, if the visa is approved, the applicant can usually pick up the visa on the next business day.