Eligible for K3 Visa or must file waiver?

[patrickmariasempre 0]

My wife entered the United States on a K1 Visa on August 20, 2006. We were married in the U.S. on November 18, 2006. However, because of a number of complications, we never filed her AOS documents. Then, on October 27, 2007 she departed the U.S. and returned to her home country.

Now, we wish to reconcile and we are discussing her return to the United States. Will we be eligible to simply file for a K3 Visa? Or, will she be considered ineligible? If she is considered ineligible, must we file for the K3 and wait for the application to be denied prior to filing a waiver?

Any help with these questions would be greatly appreciated!

Thank you!

[emt103c 10]

Okay, I'm going to give you what I think, and I AM NOT AN ATTORNEY, and have not heard of a case quite like this before. If you want a definite answer, I would consult with the attorney at visacentral.net (it's only $125 if you do it over email and she can probably give you a definite yes/no answer in no time flat) or you can go to her free chat there next week on Wednesday.

It sounds to me like she might be able to apply directly for the spousal visa (doing k3, if you prefer after filing the I-130 and I-129f) and may not need a waiver.

The conditions of the k1 are that she marries the petitioner within 90 days of entering. . . you both satisfied this requirement. The problem, you already know, is that she stayed another 343 days, before leaving the U.S., without filing the AOS paperwork. If they see this as an overstay, the first 180 days are allowed, and the last 163 count as an overstay giving here a 3 year ban for which she would need to file a waiver.

As I see it, she will not need to file the waiver because she entered on a visa, and satisfied the visa. . .if you had filed the AOS paperwork, we would KNOW for sure that she would have no overstay but would still have to re-apply since the k1 is a "one-time" use visa. I would consult with the attorney, just for your peace of mind.

IF you did have to file the waiver, it would come at the consular interview as you suggested, so there is no issue with going ahead and starting the paperwork whenever you are ready.

[payxibka 10,045]

My wife entered the United States on a K1 Visa on August 20, 2006. We were married in the U.S. on November 18, 2006. However, because of a number of complications, we never filed her AOS documents. Then, on October 27, 2007 she departed the U.S. and returned to her home country.

Now, we wish to reconcile and we are discussing her return to the United States. Will we be eligible to simply file for a K3 Visa? Or, will she be considered ineligible? If she is considered ineligible, must we file for the K3 and wait for the application to be denied prior to filing a waiver?

Any help with these questions would be greatly appreciated!

Thank you!

File the needed petitions as the overstay will not affect there outcomes. When the peitions are approved apply for the visa. At the visa interview she will most likely be refused. Learn all you can about the waiver process and how it works at your consulate. Upon refusal, have waiver in "pocket" and proceed with the waiver application....

[Boiler 45,546]

Agree with the above.

[patrickmariasempre 0]

Thank you so much for your help! Your assistance is greatly appreciated!