CASE: Immigrant Visa / Family-Based Petition
CLIENT: Thai
LOCATION: Bangkok, Thailand
Our client was in the United States on an F-1 status. He overstayed. Our client’s mother became a U.S. citizen and filed an I-130 petition for our client. This I-130 petition was approved, but he could not file adjustment of status due to his F-1 overstay. He was over 21.
Our client retained our office on May 4, 2016 for his immigrant visa application. He went home to Thailand as this was the only way he can immigrate through his mother. We had to argue that he had no unlawful presence despite his overstay because he was an F-1 overstay. Our office prepared and filed the immigrant visa packets, together with all necessary supporting documents, on June 20, 2016. Our office also prepared and drafted a brief to explain the eligibility of his immigrant visa despite his F-1 overstay.
Under 9 FAM 40,92 N1 on “Unlawful Presence: (b)(2):
DHS has interpreted ‘period of stay authorized by the Secretary of Homeland Security’ as used in the construction of unlawful presence in INA 212(a)(9)(B)(ii) to include… (2) For aliens inspected and admitted for ‘duration of status’ (DOS), any period of presence in the United States, unless DHS or an immigration judge or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding.”
Though our client overstayed his F-1 status, he never incurred any unlawful presence due to the “Duration of Status” clause implied on his F-1 entry, and the DHS, immigration judge, or the BIA never made any formal finding of a status violation on his part. Our client is also not inadmissible on any of the grounds laid out in INA 212(a).
Therefore, since our client is not subject to the unlawful presence bar and any of the inadmissibility statutes on INA § 212(a), he is eligible for an immigrant visa, based on the I-130 Petition filed by his U.S. citizen mother.
Prior to the interview, we thoroughly prepared our client. On October 5, 2016, our client was interviewed at the U.S. Embassy in Bangkok, Thailand. After the interview, our office filed another brief to the U.S. Embassy in Bangkok, Thailand for his eligibility for the immigrant visa. Eventually, on September 22, 2017, his immigrant visa was approved and issued by the U.S. Embassy in Bangkok, Thailand.