My nephew wants to marry a German woman he has known for a long time. She came into the US on a tourist visa but stayed for 5 years working as a nanny under the table. When she went back to Germany she flew Lufthansa, not an American airline. US law says if you overstay your visa for a certain period of time you are barred from entering the US for 10 years. Her question is, how would the US know she overstayed? The woman at Lufthansa told her she would probably have problems getting back in, but didn’t say they were notifying US immigration or putting her name in a computer or anything. So, how would US Immigration know? They want to marry in Germany and then come back to the US. She would technically be entering illegally. I don’t have anything to say about the risks, or moral or ethical issues. I’m just wondering if INS will know.
Well, they mightn’t know for sure, but there’s a few things that will raise their suspicion:
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Upon her initial entry to the States she would have been given an I-94, which she was supposed to turn in upon her departure. I’m guessing she didn’t.
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When she applies for her green card, she’ll have to submit copies of all her passport pages, which presumably will show that she entered the U.S. on such-and-such date. If the next stamp in the passport is 5 years later, that’s going to raise an eyebrow or two.
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She’ll also have to provide all addresses she’s lived at for the previous … I think it’s five years, and the CIA will carry out a background check in the country she claimed to be living in. There is also an FBI check, and I’d assume they investigate previous US addresses to see if foreigners were up to anything there.
My advice as a former immigration paralegal is, she needs to talk to a qualified immigration attorney ASAP.
Sorry, I really shouldn’t post before my morning coffee. Of course she turned it in, that’s how the airline knew she’d overstayed, right? Anyway, that’s how the government would find out, because the airlines forward these forms to immigration. In the past this didn’t always matter anyway because INS recordkeeping/ cross-checking was poor, but I suspect it’s improved in recent years.
Entries and departures are all in the computer and show up whenever you come back.
Is that computerised system fully functional, though? It didn’t even exist until a few years ago.
I second ruadh’s advice – hire an attorney right away. Moreover, I’d go with a good-sized firm, like eva luna’s rather than an inexpensive sole practioner. Unfortunately, many sole practioner immigration attorneys in the U.S. are the bottom of the legal barrel. If you’re dealing with something as delicate as this, you’ll need someone really good. This isn’t going to be a matter of just filling out some forms.
I have reason for my concern. A friend of mine overstayed his tourist visa by 12 hours some time ago. For years, it was a non-issue. In fact, he had completely forgotten the incident. A year and a half ago or so, he went to the States and his “visa violation” popped up on the computer screen. He’s still trying to get the ensuing mess completely sorted out.
Ruadh, I thought my son said the airline looked at her passport re: the date of entry and that’s how they knew. He didn’t say anything about a form I-94. Well, in any case if she didn’t turn it in that is a red flag. Also, since it was a German airline, does that make any difference? Do they report to the US authorities in these cases?
It looks like she is done for once they look at her passport. They would probably deport her right away.
He said if she couldn’t come back to the states for 10 years they were going to postpone the marriage. I think that is a good idea, but I’m loathe to give my opinion.
Another thing occured to me. The airline asks for your passport when you depart for a destination where a passport/visa is required. I’m wondering if Lufthansa would not allow her to board the plane for the US at that point?
I know that you can appeal the 10-year ban if it creates a severe hardship for the husband (they don’t care about the foreign wife), but it seems that might be only in cases, where, for example, there were children that were with the husband.
Well, I think there are too many barriers for them to even get involved in the inevitable mess her entering illegally would cause.
Thank you all for the information and suggestions.
An airline wouldn’t normally look at the stamps in your passport - they don’t have any reason to.
They’re all supposed to. The INS/BCIS has traditionally had a lot of trouble enforcing this law, though (and not just with foreign airlines).
They’d probably allow her on. Airlines flying to the US are required to make sure that all passengers have the required documentation, but they aren’t required to act as immigration agents and scrutinise every passenger’s history. As long as she has a valid German passport she shouldn’t have any trouble getting on the plane. It’s what happens when she gets off the plane that she has to worry about.
I’m assuming, though, that if she and your son got married in Germany she would be applying for a US immigrant visa while still in Germany. (At least, I hope she would be. The alternative - entering the US on a tourist visa and then applying to stay as the spouse of a US citizen - would be considered visa fraud.) If she’s going to be barred from the US for a period of time, that’s the point at which it would probably happen … before she’d ever stepped on a plane.
Hopefully Eva Luna will drop in soon to verify all this, as I’ve been out of the business for several years now.
They probably wouldn’t as the airline gets fined if it brings over a passenger that is not eligible to enter the country. And they have to take him/her back again.
I don’t think that’s strictly correct. They get fined if they bring someone over without documentation, or with obviously fraudulent documentation. But they can’t be expected to weed out everyone who is ineligible for other reasons. That’s the INS (or whatever they’re called this year)'s job.
True, but that is the situation we are talking about - a passport without a valid visa.
Germany being a visa-waiver country, all the airline has to ask her for is her passport.
So, if they got married in Germany and then went to the US Embassy for a resident visa for her, it looks like that’s when the problems would surface and they will tell her she can’t enter the US for 10 years. Getting an immigration attorney seems like a waste of time in this case, don’t you think?
Well it wouldn’t hurt to speak to one. Knowing the full facts of her situation, and the full details of the law, a good lawyer might be able to figure something out. You never know.
If they decide to go ahead with the wedding/application anyway, they definitely should speak to someone first.