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 Nandini
P Nair lists the penalties for overstaying the time stated on one’s
I-94 card
I am planning to go to the US shortly to visit
my son, who is there on L-1 status. I wanted to know what would
happen if I decided to stay in the US for a couple of years. What
are the penalties for overstaying the visitor’s visa in the
US?
—Sumita Shrodkar
There are a variety of penalties for overstaying
the time on one’s I-94 card (not the visa), depending upon
the circumstances.
If a person has a visitor’s visa and then
overstays by 180 days and then leaves voluntarily, there is a three-year
ban on returning to the US. If one overstays a whole year and then
leaves voluntarily, there is a ten-year bar.
Persons who are out of status and wish to apply
for permanent status cannot complete their cases without leaving,
unless a petition or labour certification was: (a) Filed for them
before January 14, 1998. (b) Filed by April 30, 2001, if they were
present in the US on December 21, 2000. (There are certain exceptions,
such as persons applying for green card, based on marriage to a
US citizen.)
Apart from the consequences indicated above,
there is also the possibility of being apprehended and placed in
removal proceedings or actually being removed from the United States
involuntarily.
Kindly inform me about the process of taking
one’s fiancée (who resides in India) to the US. Which
visa is required for the fiancée of a person who is a permanent
green card holder in the US? What is the better and faster process?
Should one marry in India or in the US?
—Santanam P J
Your fiancée does not qualify for the
K-3 fiancée visa nor the K-1 visa for the spouse of a US
citizen. The K visas are only available for spouses of US citizens.
Since you are not a US citizen, you will have to file for her and
wait for her priority date to come up, which currently takes about
five to seven years.
If she wants to join you, she needs to enter
the US on her own merit, through an H1-B or F-1 visa, etc.
Why does an H1-B transfer take so long; isn’t
there an easier process?
—Tapan Guha
The process for an H1-B “transfer”
is the same as filing a new H1-B petition and, therefore, it generally
could take a similar amount of time to process the visa.
The only difference is that the person who is
already on an H1-B status does not fall within the H1-B cap, so
will not need to wait until October 1, 2004 to start working if
the H1-B quota has already been used up in that fiscal year. Otherwise,
the process of applying for the H1-B petition is similar to that
of filing a new H1-B visa. Each H1-B petition is employer specific.
I was on an H1-B visa for two years and then
I changed status to a F-1 student visa.
I am now ready to work on an H1-B again. Do I
have six years again?
—Seema Saigal
Your six-year clock on the H1-B visa is not reset
unless you leave the country for at least one year. Also, the two
years you spent on the previous H1-B will be counted against your
current H1-B time.
Nandini P Nair is a US Immigration Attorney
based in New York, US. E-mail: dininair@aol.com
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