Voluntary Departure and Bar to Entry

[T Redo 0]

My wife and I find ourselves in a situation that seems to confound immigration attorneys and USCIS alike. To date, I have two attorneys accusing each other of incompetence and giving us diametrically opposite advice, and USCIS officials promised to investigate (so they're not sure).

If anyone reading this has had a similar experience or has authoritative references on law, please let us know!

If you cannot read everything that follows, here's a brief summary: my wife has overstayed her K1 by more than 180 days, but by less than a year. In the mean time, we have obtained a voluntary departure order for her and she will leave the country under this order before 1 year since K1 visa expiration is reached.

I have one attorney telling me that no 3-year bar to entry is triggered, and another saying quite the opposite - that the 3 year bar to entry is in effect and that we'll have to file for a waiver, which, even if successful, can add another year to her immigration process.

So which is it, please help!

Here's the timeline:

Dec 1, 2006

Wife enters US on a K1 visa, which is granted for 3 months (until March 1, 2007)

Feb 6, 2007

Wife marries her K1 sponsor

Mar 1, 2007

K1 visa expires; the couple has applied for adjustment of status interview (scheduled for July 19, 2007)

Jun 30, 2007

Marriage fails, the couple separate and my wife moves in with me (current husband)

July 18, 2007

Husband files for divorce. Laws of our state dictate that 90 days must elapse between when application is filed and when divorce can take place

July 19, 2007

Couple miss their adjustment of status interview; their case is closed.

October 15, 2007

We receive a letter from USCIS about removal proceedings that have been started against my wife; we hire an immigration attorney and start a process to get her a voluntary departure order.

October 18, 2007

My wife's first marriage is dissolved by the court

October 31, 2007

My wife and I legally marry. I am a US citizen.

November 15, 2007

An order of voluntary departure is entered giving my wife until March 7, 2008 to leave the country.

February 27, 2008

My wife is scheduled to comply with the order and leave the US.

February 28, 2008

I intend to file I-130 form on behalf of my wife.

[Dan J 277]

My wife and I find ourselves in a situation that seems to confound immigration attorneys and USCIS alike. To date, I have two attorneys accusing each other of incompetence and giving us diametrically opposite advice, and USCIS officials promised to investigate (so they're not sure).

If anyone reading this has had a similar experience or has authoritative references on law, please let us know!

If you cannot read everything that follows, here's a brief summary: my wife has overstayed her K1 by more than 180 days, but by less than a year. In the mean time, we have obtained a voluntary departure order for her and she will leave the country under this order before 1 year since K1 visa expiration is reached.

I have one attorney telling me that no 3-year bar to entry is triggered, and another saying quite the opposite - that the 3 year bar to entry is in effect and that we'll have to file for a waiver, which, even if successful, can add another year to her immigration process.

So which is it, please help!

Here's the timeline:

Dec 1, 2006

Wife enters US on a K1 visa, which is granted for 3 months (until March 1, 2007)

Feb 6, 2007

Wife marries her K1 sponsor

Mar 1, 2007

K1 visa expires; the couple has applied for adjustment of status interview (scheduled for July 19, 2007)

Jun 30, 2007

Marriage fails, the couple separate and my wife moves in with me (current husband)

July 18, 2007

Husband files for divorce. Laws of our state dictate that 90 days must elapse between when application is filed and when divorce can take place

July 19, 2007

Couple miss their adjustment of status interview; their case is closed.

October 15, 2007

We receive a letter from USCIS about removal proceedings that have been started against my wife; we hire an immigration attorney and start a process to get her a voluntary departure order.

October 18, 2007

My wife's first marriage is dissolved by the court

October 31, 2007

My wife and I legally marry. I am a US citizen.

November 15, 2007

An order of voluntary departure is entered giving my wife until March 7, 2008 to leave the country.

February 27, 2008

My wife is scheduled to comply with the order and leave the US.

February 28, 2008

I intend to file I-130 form on behalf of my wife.

She is not eligible to file for AOS as she would be filing it on a K-1 visa, with a marriage to someone else other than the original sponsor, but you already know that.

Even with a voluntary departure, she has already accrued overstay time. Over 180 days, but less than a year, does mean a 3 year ban. You can file a wavier at the interview stage, but you will have to prove hardship. How quickly that will be processed varies. If you can't prove hardship, she will have to wait out the 3 year ban.

[T Redo 0]

Someone helped me find this excerpt from an internal INA clarification. It seems to indicate that the 3-year bar to entry does not apply in our specific circumstances. Check out item 18:

http://www.americanlaw.com/unlawfulmemo5.html