DS 160 Unlawfully Present or over stayed

[sairam5027]

Hi all,

My i94 expired and my extension got denied . Currently filing a new h1 petition since I am cap exempt . I have. Question in DS 160

Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?

I stayed for about 35 days and what should I answer for this ?

The reason I stayed past my i94 expiration is I have a new born baby who is only. Month old . I want to get her the two month immunization before leaving the country .

P lease advise guys,

[jairichi]

Unlawfully present. If there is a provision to explain in DS160 then write briefly about the situation. And, 2 months immunization for baby may not be considered as a valid reason even though if it is true.

[USADreams]

If you overstayed even for a day you should mention it . Also explain appropriate reason for it . It is better to be truthful than being sorry for rest of life . 

[kumark2015]

Techically it is not a unlawfully overstayed, my reason is all the time your Extension is in pending status will be considered as legal status. question becomes how many days did you stayed after the denial decision. Practically they should allow at least few days once denial decision is made to leave the country which in my opinion 1 to 2 weeks not an unlawful presence.

I would recommend to reach out attorney or expert as it becomes tricky situation.

[JoeF]

You overstayed, I.e., stayed past the I-94 expiration date.

[hmaster]

Right, even a single day past I-94 is overstay! Don't answer based on your assumption/interpretation of the law, could trigger a life-long ban. Answer everything precisely. 

[sairam5027]

Thank you All for the responses. I am talking to lot of attorneys and i am getting multiple responses.

 

Opinion 1) Since my extension got denied, and i filed for an MTR, i will have 180 days before i leave the country. This period i wont have any status (cannot work etc). If the MTR gets approved all the stay i stayed will be legal and everything goes back to normal, if my MTR gets rejected, then the stay i stayed will become illegal, but as long as it is under 180 days i am fine. If its past 180 then i will be banned for an year or two and so on..

 

Opinion2) Have had candiadates who over stayed like me answer the question No, and if asked in the interview support it as needed. Since i have not stayed past 180 days it wont show in the system automatically, but when they enter the details they will know i over stayed.

 

the reason for my overstay is not just the 2 months of over stay, in order for me to leave i need passport for my daughter, and indian visa as well for her. I already got the passport in hand and sent it over for Indian visa. Since it is very close  my reason would be a mix of all these things.

 

I found a thread here, where a person overstayed and he answered the question with 'NO' or atleast he was suggested .

 

http://forum.murthy.com/index.php?/topic/67143-ds-160-question-unlawful-presence/?hl=%2Bstay+%2Bafter+%2Bexpiry

 

thank you all,

[jairichi]

Thank you All for the responses. I am talking to lot of attorneys and i am getting multiple responses.

 

Opinion 1) Since my extension got denied, and i filed for an MTR, i will have 180 days before i leave the country. This period i wont have any status (cannot work etc). If the MTR gets approved all the stay i stayed will be legal and everything goes back to normal, if my MTR gets rejected, then the stay i stayed will become illegal, but as long as it is under 180 days i am fine. If its past 180 then i will be banned for an year or two and so on..

 

Opinion2) Have had candiadates who over stayed like me answer the question No, and if asked in the interview support it as needed. Since i have not stayed past 180 days it wont show in the system automatically, but when they enter the details they will know i over stayed.

 

the reason for my overstay is not just the 2 months of over stay, in order for me to leave i need passport for my daughter, and indian visa as well for her. I already got the passport in hand and sent it over for Indian visa. Since it is very close  my reason would be a mix of all these things.

 

I found a thread here, where a person overstayed and he answered the question with 'NO' or atleast he was suggested .

 

http://forum.murthy.com/index.php?/topic/67143-ds-160-question-unlawful-presence/?hl=%2Bstay+%2Bafter+%2Bexpiry

 

thank you all,

Opinion 1 is completely wrong. A MTR does not allow the individual to stay in US, not even for a single day.

Opinion 2 is incorrect too. Never hide anything. If in doubt answer yes. VOs would have seen many cases like you and trust me you will not be the first one.

 

You can give all your reasons. There is nothing to worry as long as you are truthful with your answer.

To clarify your reasons:

1. Your will get a US passport from a National Passport Center within 2 weeks if applied directly at their office.

2. For US citizens it is electronic visa to enter India.

[sairam5027]

Opinion 1 is completely wrong. A MTR does not allow the individual to stay in US, not even for a single day.

Opinion 2 is incorrect too. Never hide anything. If in doubt answer yes. VOs would have seen many cases like you and trust me you will not be the first one.

 

You can give all your reasons. There is nothing to worry as long as you are truthful with your answer.

To clarify your reasons:

1. Your will get a US passport from a National Passport Center within 2 weeks if applied directly at their office.

2. For US citizens it is electronic visa to enter India.

 

Thank you Jairichi,

after talking to the Indian embassy in Chicago, they advised me to apply for  visa through the agency  Cox and Kings , Which i already did and i am expecting to get the visa in a day or two.

 

Thank you,

[jairichi]

Thank you Jairichi,

after talking to the Indian embassy in Chicago, they advised me to apply for  visa through the agency  Cox and Kings , Which i already did and i am expecting to get the visa in a day or two.

 

Thank you,

Good to now that. 

[sairam5027]

Hello All,

If someone answered yes to this question , can you please let me know what kind of questions you were asked in the Visa Interview?

 

Thank you all,

[Karna11]

@plato2327, can you please update the u r case status

[lonestartexxan]

Hi All,

I am in similar situation. Please help me.

1) I am on H-1 B status with companyA & our (me-H1B, my wife & 2 yrs old daughter-H4) stamping was valid till 4-Sept-16 - as per out I-94 records.

 

2) My current employer(companyA) filed for my H-1B extension & I got it approved till 15-July-18.

 

3) I am about to join companyB & while they were going through my documents they told me that my family's visa extensions should have been filed separately. I was under the incorrect impression that my H-1 extension would be sufficient for them to stay here in US. When asked about same to my current employer(companyA), they said that they only file H-1 extensions & not H-4. I came to know about it on 14-Sept-16.

 

4) My family left US on 17-Sept-16 (after 13 days of their I-94 'Admit until' date i.e. 4-Sept-16) as soon as we realized about it.

 

Now I am planning to apply for their visa stamping using drop-box (as per my current companyA I-797 which is valid until 15-July-18). My questions are:

 

Questions:

1) Not sure if I shall call it 'overstay'. All the while I was in proper H1B status & my wife & daughter(2 yrs old) are my dependent. Can we rectify it by any legal process(Nunc pro tunc process or anything like that) or by sending any letter or some affidavit etc. to USCIS that due to oversight it happened & they left US as soon as we came to know about it.

 

2) When should we apply for their H-4 visas in India? Should we apply for their H-4 visas after I join companyB or before I join them. My H-1 transfer into companyB has not yet been initiated.

 

3) There is a question on DS-160:  "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa? ". Shall I mention about overstay in DS-160 (separately for my wife & daughter)? or it is too small (13 days)? Will I not be inviting unnecessary attentions to it, if it is not required? What shall I write for my daughter's DS-160? Are children exempt for overstay?

 

4) If I choose to mention it in DS-160, what all things shall I mention? Like I-94 numbers, travel dates, apology, any promise for taking care of this thing in future etc.? What all documents are required if they call my family to come to the consulate for interview?

 

5) Lets say if my family(wife & daughter) gets their visa stamped & after that I join company B here. It may be 

possible that my current employer(company A) revoke my H1B. In this case will my family be able to travel here from India on H-4 of companyA while I would be working for company B here in US?

 

6) Would it be better if I will also accompany them there during their Visa interview if they are called for F2F?

 

7) What would be better - arranging a appointment or drop-box?

 

Regards,

Vijay

[JoeF]

Nunc pro tunc doesn't apply when they are abroad.

They overstayed. No but or if.

It has to be mentioned on the form. There is no "too small"... Where did you even get that idea from???

They overstayed. Period.

A lie could result in a lifelong ban!!!

Rule #1: NEVER lie on immigration forms, NEVER lie to immigration officers.