QUESTION

What is the penalty for overstaying a tourist visa? How long do I have to wait before applying for visa to get back to the US?

Asked on Aug 01st, 2012 on Immigration - Massachusetts
More details to this question:
I first got to the US with my parents on a tourist visa when I was eight. We overstayed but eight months after my eighteenth birthday my parents and I left the US.
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1 ANSWER

Family Immigration Law Attorney serving Minneapolis, MN at Aust Schmiechen, P.A.
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Based on the description you provide, the penalty that I believe you have incurred is a three year bar from returning to the United States. By overstaying your visitor status, you accrued unlawful presence. However, as a technical matter, you only accrued unlawful presence once you turned 18. Any unlawful presence before your 18th birthday does not attach to you as a penalty for returning. If a person has more than 180 days of unlawful presence, but less than 1 year, the penalty for returning to the United States is 3 years. Your parents, however, accrued more than 1 year of unlawful presence, and are therefore prohibited from returning for 10 years. There is a waiver available under INA § 212(d)(3), but with such a long period of having overstayed your status, the Department of Homeland Security is unlikely, in my opinion, to approve such a waiver.
Answered on Aug 01st, 2012 at 12:08 PM

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