Possible Out-of-Status questions. Help!

[Brent and Paola 0]

Hello,

This is my first post and I have an important question. First off My fiance and I are just starting the K-1 process and we've encountered a problem already. She was in the U.S. last year on a student visa (J something or other) and her visa was to expire in the middle of August. She had a possible job lined up that fell into the guidelines of her visa, but she was negotiating with the employer and time was running out. She decided to apply for an extension before the visa expired, but she was going over her alloted time while waiting for an answer. The USCIS got back to her about two months later and told her that they would not give her an extension, and at the time of the letter she did not have lawful immigration status and her presence in the United States was a violation of the law. They said that she would have to depart within 30 days of that letter, and that remaining beyond that time would affect her ability to return to the U.S.. She did leave within that 30 days, but I'm worried if that would make things difficult to get her k-1 visa now.

Any thoughts or ideas would be greatly appreciated. She means everything to me, and this is a very important part of my life. I just wouldn't want anything to come up and make things harder for us.

Thank You.

[aleena 0]

I think you should be fine...

When you are waiting on a pending aplication like she did it is not unlawful presence. and if she departed acording to the notice they gave her that should be fine... I don't even think they are looking at that when USCIS processes your aplication. but i would recommend that she has proof of not staying unlawfully in the US at the time of the interview (copy of her request for extension, the denial letter and her boarding pass or passport stamp when returning home)

So go ahead and submit your K1 aplication!!! You will deal with isssues as they come up...but i really think that the question you asked would not cause any problem...

[Carlawarla 1]

Hello,

This is my first post and I have an important question. First off My fiance and I are just starting the K-1 process and we've encountered a problem already. She was in the U.S. last year on a student visa (J something or other) and her visa was to expire in the middle of August. She had a possible job lined up that fell into the guidelines of her visa, but she was negotiating with the employer and time was running out. She decided to apply for an extension before the visa expired, but she was going over her alloted time while waiting for an answer. The USCIS got back to her about two months later and told her that they would not give her an extension, and at the time of the letter she did not have lawful immigration status and her presence in the United States was a violation of the law. They said that she would have to depart within 30 days of that letter, and that remaining beyond that time would affect her ability to return to the U.S.. She did leave within that 30 days, but I'm worried if that would make things difficult to get her k-1 visa now.

Any thoughts or ideas would be greatly appreciated. She means everything to me, and this is a very important part of my life. I just wouldn't want anything to come up and make things harder for us.

Thank You.

Overstaying a visa can be forgiven without a waiver if it wasn't beyond a certain period. I think it's about 179 days. Anything over, she could incur a ban. You mention she left within 30 days of her visa expiration, so I wouldn't think that would be a problem. The type of visa she was here on however could be a problem. I'm thinking of the home residency requirement on a J visa? I don't know much about them, however have heard that there is a home residency condition on them? Hope someone can come by and explain that process. And if I'm wrong, I'm sorry. Perhaps searching for "J" visa's will produce some threads about this issue.

Best of luck on your journey!

[KimandRuss 0]

If she left before 6 months she should be set but you will want to check. If she did overstay and is subject to a ban it will effect your K1 application only at the interview stage where you will most likely need to file a waiver.

.

The two-year home country residence requirement prevents an Exchange Visitor who is subject to the requirement from changing visa status to H temporary worker or trainee, L intra-company transferee, or permanent resident of the U.S.. The individual would not be permitted to change these categories at a U.S. Consulate outside the US until the requirement was satisfied or waived. The requirement also prevents the Exchange Visitor from changing status within the U.S. to any other nonimmigrant category, although it is possible to leave the U.S. and re-enter in a visa category other than H, L or permanent resident without first satisfying the two year requirement. Once the requirement has been fulfilled (i.e. the individual has been physically present in his or her home country for an aggregate of two years after completing the Exchange Visitor program), the individual is free to re-enter the U.S. in any nonimmigrant visa category for which he or she is qualified.

This requirement is imposed upon the J-1 Exchange Visitor under one or more of the following circumstances:

When the Exchange Visitor's program is financed by the U.S. government or by the home country government. This includes, but is not limited to, Exchange Visitors whose visas were sponsored by organizations such as Fulbright, the Exchange Visitor Program, Organization of American States, Amideast, etc. Note: Funding that is part of a Columbia professor's government grant and which partially used as stipends or salaries for graduate students or research fellows is not considered government funding for this purpose.

When the Exchange Visitor has acquired a skill which is in short supply in his or her own country, and that skill appears on the Exchange Visitor Skills List of the U.S. Department of State (published in the Federal Register, June 12, 1984, and subsequent updates). Refer to the document titled United States Information Agency Country Skills List for additional information. The International Students and Scholars Office (ISSO) has copies of this list.

When the Exchange Visitor is a graduate of an international medical school participating in an internship, residency, or clinical training program in the U.S. sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).

The two-year home country residence requirement and other conditions of J-1 status are explained to the J-1 Exchange Visitor on page 2 of the form DS-2019. The J-1 Exchange Visitor is required to sign both of these pages to signify that he or she understands the conditions before applying for the J-1 visa.

The U.S. Consular officer and/or the DHS officer at the port of entry usually makes a preliminary determination as to whether the J-1 Exchange Visitor is or is not subject to this requirement. The determination is noted on the Exchange Visitor's DS-2019 and/or on the visa page of the individual's passport. It is important, however, to realize that these notations are sometimes incorrect and that a final determination is made by the Department of State (see "Advisory Opinions", below). If the Exchange Visitor is uncertain whether or not the requirement applies, an advisor in the ISSO should be consulted.

Whether she is subject to the 2 year HRR should be noted on her passport stamp for the J1 as well. There is a waiver for this too.

[Todd-Leah 0]

They said that she would have to depart within 30 days of that letter, and that remaining beyond that time would affect her ability to return to the U.S.. She did leave within that 30 days, but I'm worried if that would make things difficult to get her k-1 visa now.

She was in status while waiting for USCIS to response to her extension request.

If she departed within that 30 days, she was in status when she left. There is nothing illegal about that, don't worry.

Leah

[pushbrk 12,898]

I don't see a problem with going ahead and filing the fiance(e) visa petition. Note: it is not a visa application. Once your petition is approved, she'll be allowed to apply for a visa abroad.

Experienced VJ members really need to stop calling the I-129F a K1 application. USCIS doesn't issue visas.

[KimandRuss 0]

Experienced VJ members really need to stop calling the I-129F a K1 application. USCIS doesn't issue visas.

Pardon me once again father superior. I remain in awe of your great wisdom and knowledge and am forever grateful of your constant rectifications.

I deeply apologize to the OP for any confusion my reference to the K1 as an application and not a petition has caused you.