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How will a prior overstay affect an EB-5 application?

My parents in Pakistan applied for an EB-5 green card. Previously, when they visited the United States on a visitor visa, they overstayed for a year because of health reasons. Will this be a problem when they submit the DS-260 and then go for a visa interview? Will their passports be checked? Do we have to disclose their overstay if it was over five years ago? We do not want their green cards to be rejected because of this situation.

Answers

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    Abhinav Lohia

    Immigration Attorney
    Answered on

    Unlawful overstays can cause a ban from entry to the United States for a period of 5 to 10 years. This should have been dealt with prior to filing your parents' I-526 application. The consulate will have access to your parents' history. You are strongly advised to put true and correct information on all immigration forms to avoid jeopardizing their entry to the United States permanently.

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    Xiaosheng Huang

    Immigration Attorney
    Answered on

    Your parents' green card application will be rejected definitely if they have overstayed in the United States more than one year, no matter whether they overstayed purposely or non-purposely. If you have an immigration attorney, he shall suggest for you not to submit the EB-5 application. First, you need to confirm with your parents if they have applied for an extension of their visitor status. Second, your parents may have to apply for the waiver. Even if the waiver is granted, they may still have to wait for another five years to be admitted into the United States.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Always tell the truth on the application. If it asks if you overstayed, you say yes. You may have been outside of the United States long enough to attempt to move forward.

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    Barbara Suri

    Immigration Attorney
    Answered on

    Your parents will be required to answer ALL questions truthfully. As I recall, the DS-260 requires data on the last five visits to the United States. After disclosing truthful information, they should then present documentation as to the reason for the overstay – in this case, medical records.

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    John J Downey

    Immigration Attorney
    Answered on

    You should tell them about it because they probably will have a record. You should obtain the services of an attorney to perhaps file a waiver for them. Since it was health reasons, then you should obtain any and all medical records, and if necessary, Affidavits from people who knew of the reasons.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You first need to clarify whether or not they stayed beyond their admitted period of stay as indicated on their I-94 for greater than a year. If that is the case, then they are statutorily barred from receiving any immigration benefits (green cards, visas, etc.) for 10 years. So, if they have been outside the United States for over five years since their overstay, they have five more years to go before they can apply for a green card. They can start the process for the I-526 petition for immigrant investor in the mean time, but they just will not be able to apply for an immigrant visa (i.e., complete the DS-260, etc.), until 10 years have passed since departing the United States after the unlawful presence.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It will definitely be a problem and it will require a waiver unless they have been overseas for at least 10 years since then. Once they left the United States after an overstay, they triggered a 10 year penalty before they are allowed to return. The waiver requires a qualifying relative in the United States, U.S. citizen or LPR spouse or parent) and you will need to show extreme hardship to that qualifying relative.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It depends on a host of reasons, including, but not limited to, the fact that they were sick. However, there are more questions and facts on this matter that need to be taken into account. Also, one needs to inquire about what did they do during the time when they were sick. Finally, you must disclose all information relating to their immigration status while in the United States. Advisably, seek the counseling of an immigration attorney who can look at all the information prior to proceeding further.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If they overstayed by more than 180 days, they triggered a three-year bar to reentry when they left. If they overstayed more than one year, they triggered a 10-year bar to reentry. How the government knows is they swiped the passport on the way out, so we caution that it is smart to disclose. Failure to disclose could result in a lifetime bar to reentry.

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    Jeff Khurgel

    Immigration Attorney
    Answered on

    Yes, they have to disclose the overstay and yes, immigration/consular officers will know. If the overstay is classified as unlawful presence, then they may have a bar to reentry. Otherwise, if they did not accrue unlawful presence, they may be able to receive immigrant visas without the need for a waiver.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    When going through consular processing, you will be asked about any previous violations of immigration law or immigrant visas. Depending on how long the overstay was, they may be barred from reentry for a certain period of time.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    You should immediately discuss this with your investment immigration attorney. Generally an overstay of one year would subject a person to a 10-year bar.

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