Overstayed Fiancee Visa & Married Someone Else

[risal 0]

I have a friend who married a woman that was here on a fiancee visa. But, he was not the one that petitioned her.

The relationship with the man that petitioned her did not work out. She met my friend, fell in love with him, and married him.

She then overstayed her original fiancee visa by 3 years before returning to the Philippines. They are currently in the process of doing the CR-1. The USCIS side was approved, of course.

The pressing question is this... When it comes time for her interview at the Manila embassy, will the embassy impose a ban on her re-entry to the United States because she overstayed her previous visa?

Is there anything he or she can do to avoid a ban.... is there a way around this since she got married to a United States citizen here, and then returned home to go through the spousal visa process.

Will they be banned? Do they have to be banned? Can they get a waiver of any ban because they are married? Can they appeal a ban? What if anything should they do or can they do in this situation? Is there any painless solution so that they can be reunited in the USA in a relatively short period of time?

Thankyou! (And no.. it is not me, my filipina wife and I have been happily married and living together in the US for over 4 years. )

[Chica Yeyé 41]

Tell your friend to join VJ so people can give him more information.

In the meanwhile, -- I think overstay is forgiven if married to a USC -- although I don't know how bad would be the fact that she entered on a K visa to obviously marry someone else.

[risal 0]

-- I think overstay is forgiven if married to a USC --

Overstay of fiancee visa is forgiven if married to a US citizen? Even if she married a different guy and returned to the Philippines after overstaying the fiancee visa by 3 years?

[Jenn! 918]

Overstay is forgiven if the non-USC adjusts status through marriage to a USC from inside the U.S. by filing the I-130 and I-485. However, I am unclear as to whether this general rule applies to K1 visa holders.

When she left the U.S. after having overstayed her visa by more than 180 days, she triggered a ban. I believe she will have to file an I-601 waiver.

Also, I would advise attorney consultation.

I'm moving this topic to the waiver forum.

Edited: cited wrong visa type

Edited September 16, 2008 by Jenn!

[emt103c 10]

k1 holders can only adjust status from within the U.S. if they marry the original petitioner. .

At the interview she will be denied because of the overstay, however, she is eligible for the I-601 hardship waiver. This is a difficult waiver to prepare and he will need a lot of help and advice. The best place for information on this waiver is www.immigrate2us.net

He is going to need to study the process quite a bit.

Two attorneys that are quite experienced with this type of waiver are Heather Poole and Laurel Scott

www.visacentral.net and www.humanrightsattorney.com

In order to get the waiver he will have to PROVE that it would cause him "Extreme Hardship" if she is unable to go to the U.S. with him.

Edited September 16, 2008 by emt103c

[risal 0]

-- I think overstay is forgiven if married to a USC --

Overstay of fiancee visa is forgiven if married to a US citizen? Even if she married a different guy and returned to the Philippines after overstaying the fiancee visa by 3 years?

Actually, I would prefer the question left in the other forum.. I put it there instead of under waiver because it would get more responses..

But, regardless...

They did file for the AOS and were denied with a letter in the mail stating so and that she had to leave the US or be forced to leave... because she had overstayed the fiancee visa. The letter also stated they could file the I-130 later after she returnes to the Philippines... but made no mention of a ban on re-entry. She overstayed the fiancee visa by 3 years.. and has been back in the Philippines for one year, already... and the way I, and he reads it (online)she is due for a 10 year ban.

It would be great if becaue she did marry a US citizen that she would be forgiven with no ban on re-entry..

You mention the I-601 waiver... It is just the husband and his filipina wife of 4 years... so, it is obviously not a hardship.... just a painful inconvenience..to have to be separated.

Actually, for the moment they are not separated.. he is currently living in the Philippines with her, but they both want to return to the US as soon as possible.

Is she going to be able to do that... or is she going to have to serve the next 9 years of a 10 year ban in the Philippines.

Thankyou.

[spookyturtle 9,466]

Also, please note that the Phillipines is one of the most difficult offices in the world to obtain a waiver from. Like emt103c has stated, check out immigrate2us,net and you must do a consult with a one of the lawyers who has extensive experience with foreing filed waivers. It is so difficult to get a wavier there, you need some good legal help. If you check out the other forum, I believe that there was only one member who has been successful filing in Manila.

[spookyturtle 9,466]

-- I think overstay is forgiven if married to a USC --

Overstay of fiancee visa is forgiven if married to a US citizen? Even if she married a different guy and returned to the Philippines after overstaying the fiancee visa by 3 years?

Actually, I would prefer the question left in the other forum.. I put it there instead of under waiver because it would get more responses..

But, regardless...

They did file for the AOS and were denied with a letter in the mail stating so and that she had to leave the US or be forced to leave... because she had overstayed the fiancee visa. The letter also stated they could file the I-130 later after she returnes to the Philippines... but made no mention of a ban on re-entry. She overstayed the fiancee visa by 3 years.. and has been back in the Philippines for one year, already... and the way I, and he reads it (online)she is due for a 10 year ban.

It would be great if becaue she did marry a US citizen that she would be forgiven with no ban on re-entry..

You mention the I-601 waiver... It is just the husband and his filipina wife of 4 years... so, it is obviously not a hardship.... just a painful inconvenience..to have to be separated.

Actually, for the moment they are not separated.. he is currently living in the Philippines with her, but they both want to return to the US as soon as possible.

Is she going to be able to do that... or is she going to have to serve the next 9 years of a 10 year ban in the Philippines.

Thankyou.

Is he a US citizen or permanent resident? There will be a 10 year ban regardless, the only way to overcome it is with the I-601 waiver which must prove extreme hardship to the US citizen. Filing in Manila has only a small chance of excess and the harships must be very strong.

[Carlawarla 1]

-- I think overstay is forgiven if married to a USC --

Overstay of fiancee visa is forgiven if married to a US citizen? Even if she married a different guy and returned to the Philippines after overstaying the fiancee visa by 3 years?

Actually, I would prefer the question left in the other forum.. I put it there instead of under waiver because it would get more responses..

But, regardless...

They did file for the AOS and were denied with a letter in the mail stating so and that she had to leave the US or be forced to leave... because she had overstayed the fiancee visa. The letter also stated they could file the I-130 later after she returnes to the Philippines... but made no mention of a ban on re-entry. She overstayed the fiancee visa by 3 years.. and has been back in the Philippines for one year, already... and the way I, and he reads it (online)she is due for a 10 year ban.

It would be great if becaue she did marry a US citizen that she would be forgiven with no ban on re-entry..

You mention the I-601 waiver... It is just the husband and his filipina wife of 4 years... so, it is obviously not a hardship.... just a painful inconvenience..to have to be separated.

Actually, for the moment they are not separated.. he is currently living in the Philippines with her, but they both want to return to the US as soon as possible.

Is she going to be able to do that... or is she going to have to serve the next 9 years of a 10 year ban in the Philippines.

Thankyou.

This is the best forum on VJ for this type of question, and the reason it was moved. emt103c and spookyturtle are very knowledgeable about waivers and the whole process. Please give them all the information that you can, and visit the other sites mentioned!

[desert_fox 32]

There doesn't even appear to be a hardship if he can live in the P.I.'s as he is doing now.

Hardship waivers are to address reasons shy the USC spouse cannot move...medical, job, family, etc. Seems that none of this applies.

[emt103c 10]

The fact that he is living in PI now does not preclude that it could be causing him "Extreme Hardship" to do so or that an extended period of time in PI might be considered Extreme Hardship.

There are many people who moved to a foreign country to live with their spouse and were still able to get a waiver approved either based on the fact that it was always Extreme Hardship or that new circumstances made it Extreme Hardship. . .each embassy and DHS office has a different interpretation of the word.

[payxibka 10,045]

Actually, I would prefer the question left in the other forum.. I put it there instead of under waiver because it would get more responses..

You want quality not quantity....

Only if the responses you wanted were ... "I really don't have answer for you but I wish your friend the best...." then you are right it shouild have been left there....

[spookyturtle 9,466]

There doesn't even appear to be a hardship if he can live in the P.I.'s as he is doing now.

Hardship waivers are to address reasons shy the USC spouse cannot move...medical, job, family, etc. Seems that none of this applies.

That's why we advise to consult with an lawyer who has extensive experience with foreign filed waivers. You have to make your hardships work for you. It requires creative thinking and a good hardship package. It isn't following a set of rules and it is not simply writing a letter and filling out a form. There is a lot more too it than many people realize, but it is also doable in many cases if one is willing to invest the necessary time, effort and money to make it happen. Probably the most difficult piece of the puzzle in this case is dealing with DHS in Manila. The approval rate is very low. What would be approved elsewhere can be denied here. But the only way to find out is to try.

[emt103c 10]

You want quality not quantity....

Only if the responses you wanted were ... "I really don't have answer for you but I wish your friend the best...." then you are right it shouild have been left there....

[akdiver 3]

I'm just curious if she made financial restitution to the guy who filed her K-1 visa petition. You know - the one it "didn't work out with" before, in the course of 90 days or less, she managed to "fall in love with" someone else. Just curious.