[askmejames]

Hello,

So I am trying to help a friend who is a French citizen, and overstayed her I-94 because of financial hardship (unable to afford the airfare back home in time). She is now in a position to afford returning home, and hopes to renew her Visa as a student visa to return for studies.

My question is this: it seems from my research that, should she return home before 180 days past the expiration of her I-94, she won't be subject to any barring from the US at all. Between 180 days and 1 year, 3 years barring. Is this true? If so, she still has a bit of time to return.

Also, if she simply crossed the border to Mexico or Canada, and returned on a tourist Visa the next day, how long would she be allowed to stay in the US on that visa?

I'm trying my best to help her keep out of trouble as much as I can, and also don't want to implicate myself in anything criminal.

Thank you,

James

[DCcityboy]

You seem to like the research. The 3 and 10 year bars are under INA section 212(a)(9)(B)--(I) and (ii). The waiver is under section 212(d)(3) and the seminal case is Matter of Hranka. It lists the factors the ARO will use in determining her eligibilty.

That said, there is an element of good faith that the US CONOFF will look at when issuing a visa or granting a waiver. She needs to leave as soon as possible, if she waits for the max 180 days, the CONOFF will take that into consideration.

She cannot enter the US from Canada or Mexico (or the adjacent islands), as she no longer has VW privileges based on her WT overstay. She must apply for a visitor visa if she wants to come in as a visitor. She must apply for an F-1 visa if she wants to enter as a student. She can check with AMCON if she will need a 212(d)(3) waiver.

Not likely that you would be charged criminally, only with a civil violation. My best advice, consult with an experienced immigration attorney, but be sure they have consular experience as the overwhelming majority of immigration attorneys have no direct consular experience (DOS).

There are immigration experts on this board (not me), you may want to PM them directly.

[askmejames]

Thanks! You caught me, I do love research... I will absolutely advise her to leave asap...

[DCcityboy]

She really should be fine, it is a civil violation and if she can explain why she overstayed and it isn't over 180 days, she should be able to get her visa.

Please note that if she marries a US citizen, the petition will allow for the immigration violations to be forgiven, no penalties. Good luck.