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  • Applying after overstay + 'extreme hardship'

    Hello,

    Short bio, I'm a Dutch citizen living in the UK with my wife and 2 children (all three have US citizenship, we got married 5 years ago).

    A few years ago we were living in the UK when my wife got pregnant with our second child, since we thought it would be hard with two young children and no family, we went back to the US for the birth of our second child. The original plan was that I was returning to the UK after the birth and then wrap up things in the UK and we could apply for a green card for me to come over or my wife and children would come to the UK after a while depending on what was easier.

    We were staying with my wife's parents and everything was fine until the birth, which was harder than expected and my wife needed a bit more help. Unfortunately my mother-in-law couldn't help due to other family members needing/demanding help as well, this left my wife rather alone and forced me to overstay my ESTA. Because of that we were basically forced to move to the UK, when family got the message they said they'd help us out by paying the $1500 for the change of status and be a sponsor for the green card, since my wife wasn't making any money.

    This dragged on for a bit until the family member decided to back-out of the sponsorship, so I had to get back to the UK after all when my wife was capable to taking care of the children herself. When my wife and children finally made it back to the UK, Brexit happened and we're quite unsure if my wife can stay here. Because of this my wife wants to move back to the US.

    Now I spoke to a lawyer in my wife's hometown and he said that because of my overstay I was banned from the US for 10 years but he could help out and apply for a 'extreme hardship' case when my green card application gets rejected because I'm the only sole provider for our family, our children won't be able to be with me and the education opportunities for our children in the US. Though he gave helpful advice and quoted about $8k for their services, I don't feel entirely confident in their ability and would like to know if anyone knows or has experience with immigration lawyers and the 'extreme hardship' waivers and could give any recommendations (lawyers) or advice?

    If it helps anything, my wife and her family reside in Illinois.

    Thanks in advance.

  • #2
    Originally posted by kabonk View Post
    Hello,

    Short bio, I'm a Dutch citizen living in the UK with my wife and 2 children (all three have US citizenship, we got married 5 years ago).

    A few years ago we were living in the UK when my wife got pregnant with our second child, since we thought it would be hard with two young children and no family, we went back to the US for the birth of our second child. The original plan was that I was returning to the UK after the birth and then wrap up things in the UK and we could apply for a green card for me to come over or my wife and children would come to the UK after a while depending on what was easier.

    We were staying with my wife's parents and everything was fine until the birth, which was harder than expected and my wife needed a bit more help. Unfortunately my mother-in-law couldn't help due to other family members needing/demanding help as well, this left my wife rather alone and forced me to overstay my ESTA. Because of that we were basically forced to move to the UK, when family got the message they said they'd help us out by paying the $1500 for the change of status and be a sponsor for the green card, since my wife wasn't making any money.

    This dragged on for a bit until the family member decided to back-out of the sponsorship, so I had to get back to the UK after all when my wife was capable to taking care of the children herself. When my wife and children finally made it back to the UK, Brexit happened and we're quite unsure if my wife can stay here. Because of this my wife wants to move back to the US.

    Now I spoke to a lawyer in my wife's hometown and he said that because of my overstay I was banned from the US for 10 years but he could help out and apply for a 'extreme hardship' case when my green card application gets rejected because I'm the only sole provider for our family, our children won't be able to be with me and the education opportunities for our children in the US. Though he gave helpful advice and quoted about $8k for their services, I don't feel entirely confident in their ability and would like to know if anyone knows or has experience with immigration lawyers and the 'extreme hardship' waivers and could give any recommendations (lawyers) or advice?

    If it helps anything, my wife and her family reside in Illinois.

    Thanks in advance.
    How long did you overstay after your I-94 expired (i.e. the amount of time from when your I-94 expired (which should be 90 days after entry since you were on VWP) until you left the US)? How long has it been from when you left the US to now?

    (If you hadn't left the US, this would be an easy process with no bans or waivers, but that is moot now.)
    Last edited by newacct; 01-15-2018, 12:03 AM.

    This is my personal opinion and is not to be construed as legal advice.

    Comment


    • #3
      Originally posted by newacct View Post
      How long did you overstay after your I-94 expired (i.e. the amount of time from when your I-94 expired (which should be 90 days after entry since you were on VWP) until you left the US)? How long has it been from when you left the US to now?

      (If you hadn't left the US, this would be an easy process with no bans or waivers, but that is moot now.)
      My I-94 expired mid-October and I left in August, so 9-10 months later. It's been 2 years since I came back.
      I know it would have been easier if I'd stay, but since I couldn't work and family wasn't willing to sponsor any longer there was no option to go back and find a job elsewhere to support my family.

      Comment


      • #4
        Originally posted by kabonk View Post
        My I-94 expired mid-October and I left in August, so 9-10 months later. It's been 2 years since I came back.
        I know it would have been easier if I'd stay, but since I couldn't work and family wasn't willing to sponsor any longer there was no option to go back and find a job elsewhere to support my family.
        Since you accrued more than 180 days and less than 1 year of "unlawful presence" and then left the US, you triggered a 3-year ban. (If you had accrued more than 1 year of "unlawful presence" and left the US, it would have been a 10-year ban.) That is 3 years from the date you left the US, so it will be over in about a year. Your wife can file the I-130 around now since it takes several months for the I-130 to be approved anyway. Your ban just has to be over by the time you go to the consulate to apply for the immigrant visa.

        If you really want to immigrate before the ban is over, yes, you would need to apply for an immigrant waiver with I-601, and for this ban, basically you would need to show that your wife would suffer "extreme hardship" if you can't be in the US. Note that "extreme hardship" is pretty hard to show; you should have a package with a hardship letter, doctor's notes, maybe phychiatrist's notes, etc., and you need to explain why she can't be in the UK with you if you can't be in the US. I-601 would only be filed after you've been interviewed at the consulate for an immigrant visa and denied due to the ban, and by that time in the process your ban would be almost over anyway, I'm not sure there is a point to apply for a waiver.

        This is my personal opinion and is not to be construed as legal advice.

        Comment


        • #5
          Originally posted by newacct View Post
          Since you accrued more than 180 days and less than 1 year of "unlawful presence" and then left the US, you triggered a 3-year ban. (If you had accrued more than 1 year of "unlawful presence" and left the US, it would have been a 10-year ban.) That is 3 years from the date you left the US, so it will be over in about a year. Your wife can file the I-130 around now since it takes several months for the I-130 to be approved anyway. Your ban just has to be over by the time you go to the consulate to apply for the immigrant visa.

          If you really want to immigrate before the ban is over, yes, you would need to apply for an immigrant waiver with I-601, and for this ban, basically you would need to show that your wife would suffer "extreme hardship" if you can't be in the US. Note that "extreme hardship" is pretty hard to show; you should have a package with a hardship letter, doctor's notes, maybe phychiatrist's notes, etc., and you need to explain why she can't be in the UK with you if you can't be in the US. I-601 would only be filed after you've been interviewed at the consulate for an immigrant visa and denied due to the ban, and by that time in the process your ban would be almost over anyway, I'm not sure there is a point to apply for a waiver.
          Thank you for the reply, I did my own research and I thought it was 'only' a 3-year ban, but the lawyer said it was 10 years, hence I was asking if anyone has any recommendations for lawyers in Illinois. This will make it a lot easier hopefully. The lawyer said we could petition for hardship because of Brexit and the US schools our children would be missing. Though recently my wife's parents have quite a few health issues so that might help us as well since they need care.

          Comment


          • #6
            Originally posted by kabonk View Post
            Thank you for the reply, I did my own research and I thought it was 'only' a 3-year ban, but the lawyer said it was 10 years, hence I was asking if anyone has any recommendations for lawyers in Illinois. This will make it a lot easier hopefully. The lawyer said we could petition for hardship because of Brexit and the US schools our children would be missing. Though recently my wife's parents have quite a few health issues so that might help us as well since they need care.
            If what you said was correct, it is 3 years. You don't need a lawyer to tell you this; it is a very straightforward reading of the law. There isn't anything tricky or ambiguous here (whether one accrues "unlawful presence" or not is sometimes complicated for people in some statuses, but not in your case). This "lawyer" might have misunderstood the amount of "unlawful presence" you had, or they just didn't know what they were talking about.

            This is my personal opinion and is not to be construed as legal advice.

            Comment

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