Which is best, K-1 or K3?

[mvngs 0]

Hello All,

I'll be brief....SO entered US illegally when he was 17yrs. old (now 28yrs.) He was married and divorced w/ one child in the U.S. to a citizen, we now have a child together and wish to marry. Which would be the best route for us? K1 or K3 and if there any way we can do this and him NOT have to return?

Edited May 12, 2008 by mvngs

[payxibka 10,045]

Hello All,

I'll be brief....SO entered US illegally when he was 17yrs. old (now 28yrs.) He was married and divorced w/ one child in the U.S. to a citizen, we now have a child together and wish to marry. Which would be the best route for us? K1 or K3 and if there any way we can do this and him NOT have to return?

As the illegal entry will require his departure from the US... and thus will require a waiver be granted for a visa..... (because a re-entry ban will be imposed)

My guess (and only a guess) is that a greater chance of success for the granting of the waiver when married to a USC rather than just a fiance(e)...

[Rob & Jin 0]

Hello All,

I'll be brief....SO entered US illegally when he was 17yrs. old (now 28yrs.) He was married and divorced w/ one child in the U.S. to a citizen, we now have a child together and wish to marry. Which would be the best route for us? K1 or K3 and if there any way we can do this and him NOT have to return?

Well he is here illegally and for a long time, so you are going to have problems.

K-1 or 3 its up to you, it will be denied, he will be deported and banned from being able to apply again for probably 10 years. Also he would have to leave to attend the interview.

After the denial if eligible you may be able to file for a waiver.

Good luck

[GlobeHopperMama 95]

As long as he hasn't left the US since he came, and doesn't have a criminal record, there shouldn't be a problem. He will need to leave the US and go to his country of origin for the interview. However, as long as you are his spouse or fiancee, he should be able to file an I-601 waiver to cure the 10-year ban that he will receive for illegal entry. It is based on the hardship to you if he isn't allowed to enter the US for 10 years. If he's from Mexico, this could actually be approved immediately through the Pilot Program there, keeping him out of the country for a very short time. Other countries could range from 6 months to over a year.

There are only 2 ways to avoid having him leave the US. 1) If he entered legally on a visa and overstayed. 2) If someone had already petitioned him before 2001. In this very rare case, 245(i) applies and he could be able to adjust in the US. This isn't very common, though.

There doesn't necessarily seem to be any advantage in this process whether filing as fiances or spouses. It seems the fiance process moves a lot faster through the consulate in Mexico, but it's also a little bit more costly.

I suggest you check out immigrate2us.net. Plenty of info on the I-601 waiver process and lots of people who have successfully survived it.

Edited May 12, 2008 by guatetaliana

[~Laura and Nick~ 5]

I've moved this to the Waivers and AP board

[rebeccajo 14]

As long as he hasn't left the US since he came, and doesn't have a criminal record, there shouldn't be a problem. He will need to leave the US and go to his country of origin for the interview. However, as long as you are his spouse or fiancee, he should be able to file an I-601 waiver to cure the 10-year ban that he will receive for illegal entry. It is based on the hardship to you if he isn't allowed to enter the US for 10 years. If he's from Mexico, this could actually be approved immediately through the Pilot Program there, keeping him out of the country for a very short time. Other countries could range from 6 months to over a year.

There are only 2 ways to avoid having him leave the US. 1) If he entered legally on a visa and overstayed. 2) If someone had already petitioned him before 2001. In this very rare case, 245(i) applies and he could be able to adjust in the US. This isn't very common, though.

There doesn't necessarily seem to be any advantage in this process whether filing as fiances or spouses. It seems the fiance process moves a lot faster through the consulate in Mexico, but it's also a little bit more costly.

I suggest you check out immigrate2us.net. Plenty of info on the I-601 waiver process and lots of people who have successfully survived it.

If the OP's fiance entered illegally, he cannot adjust status from within the US.

He must return to his home country and process there. The bar will be 10 years.

[emt103c 10]

As long as he hasn't left the US since he came, and doesn't have a criminal record, there shouldn't be a problem. He will need to leave the US and go to his country of origin for the interview. However, as long as you are his spouse or fiancee, he should be able to file an I-601 waiver to cure the 10-year ban that he will receive for illegal entry. It is based on the hardship to you if he isn't allowed to enter the US for 10 years. If he's from Mexico, this could actually be approved immediately through the Pilot Program there, keeping him out of the country for a very short time. Other countries could range from 6 months to over a year.

There are only 2 ways to avoid having him leave the US. 1) If he entered legally on a visa and overstayed. 2) If someone had already petitioned him before 2001. In this very rare case, 245(i) applies and he could be able to adjust in the US. This isn't very common, though.

There doesn't necessarily seem to be any advantage in this process whether filing as fiances or spouses. It seems the fiance process moves a lot faster through the consulate in Mexico, but it's also a little bit more costly.

I suggest you check out immigrate2us.net. Plenty of info on the I-601 waiver process and lots of people who have successfully survived it.

If the OP's fiance entered illegally, he cannot adjust status from within the US.

He must return to his home country and process there. The bar will be 10 years.

That's what she said, just in more detail.

[lucyrich 20]

Others have given information that ordinarily would be accurate for most cases, but there's something unusual here.

What happened with the previous marriage? Was an immigration petition ever filed? If not, why not? If so, what was the result?

The law changed in 2001. Prior to that time, if he was married a US Citizen, he could have adjusted status without leaving the US. The law which allowed it was INA 245(i). If he was the beneficiary of a petition that was filed before April 30, 2001, INA 245(i) may still allow him to adjust status, even if he would now be adjusting status based on a completely different petition.

If he may have been the beneficiary of a petition filed on or before April or 2001, see http://www.murthy.com/adjsta.html , http://www.shusterman.com/245i-faq.html , and/or talk to a good immigration attorney.

Maybe it's a long shot, but adjustment of status, if it's available to him, is probably a much easier route than going abroad, having the visa denied, and getting a waiver.