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Ice on Immigration: Rights under expired H2-B Visas 

By L. Patricia Ice, Featured Columnist

Question: My friend was in the United States on an H-2B temporary worker visa a few years ago and he overstayed his authorized exit date by almost 270 days or about 9 months.  He then returned to his home country, where he is today.  He has now been offered another job which requires another H-2B visa.  Will the 3-year prohibition against obtaining a visa if one has more than 180 days but less than 365 days of unlawful presence apply to my friend if he tries to obtain a new H-2B visa?

Answer: Yes, the so-called 3 year bar will apply.  However, your friend may be eligible for a waiver of the 3 year bar.  In a few cases, applicants who have overstayed their visa time limits have been able to obtain a waiver of the 3 year bar by filing a form I-192 Application for Advance permission to enter as a Non-immigrant pursuant to Section 212(d)(3) of the Immigration and Nationality Act.  This waiver excuses (pardons) several immigration violations including unlawful presence for applicants who wish to enter the United States on a temporary or non-immigrant visa. In order to get the waiver the applicant must request it at a consulate or embassy.  A consular officer will probably not offer the waiver without a specific request.  I suggest that you or your friend consult an immigration lawyer or BIA accredited representative for more information about the I-192 waiver, although some lawyers are not aware that it can be used to waive the 3 year bar.  I was advised of it earlier this summer when a consular officer told me she sometimes excuses unlawful presence in the U.S. for H2-B applicants using the I-192 waiver application.