Need I-601 waiver ??

[christera22 8]

Hi ,

I am writing regarding the post http://www.visajourney.com/forums/index.php?showtopic=181641 where I saw the mention about I-601 waiver.

I wd relate a bit summary of our case for everyone to advice !

I am from India and my met my now wife on a chat site in feb,2007. Now we were talking about her upcoming book and we agreed to set up her book as i was doing her art. By july,2007 we became somewhat interested in each other and by sep,2007 i came to usa for attending some fairs and meeting her publisher. I went back in dec,2007 . We decided to do K1 and were preparing. Meanwhile I had to come to USA once again in March,08 with B1/B2 as her book was getting published but the pattern has once again to be changed. So the POE officer stamped June,08. But by that time she had to get a serious replacement surgery and she wanted to stay back and get married and we did that. I had to overstay till now (though my original visa is valid till about april,09)...as there was shortage of money and I cdnt apply for AOS. Now as adviced by all we are going through the normal AOS process of I-134 & I-485 & other forms.

But do I need a I-601 waiver as I overstayed 8 months ? I thought that overstay is forgiven based on marriage to an USC.

Thanks a lot...I wd appreciate a urgent reply as we are all set to post in 1-2 days.

[YuAndDan 153]

I will move this to the Waiver forum.

[christera22 8]

this is what i found out :

"The I-601 Waiver is most commonly required if the alien has committed immigration fraud, has a criminal record, or has been unlawfully present in the United States for more than 180 days and is now outside the US. "

so people who has overstayed and outside usa and applying for AOS as already married or propective spouse of an USC, they need the waiver. People who got married in any visa, wtihin usa , within the 90 days span but then overstayed and then applying for AOS wont need a waiver as all overstays are excused based on marriage to an USC. This is my finding but all helps and comments are most appreciated. I am very puzzled at this present moment. I am all ready with the AOS packet to post but suddenly this thing arrived. Thanks a lot.

[emt103c 10]

Overstay is forgiven when married to a U.S. citizen. In the thread you referenced the intent to immigrate obviously was not there, however, since you had the relationship previously, and still entered on a tourist visa, which you overstayed, you will have to prove that you did not misrepresent yourself in obtaining your original visa.

Doing this will depend a lot on how quickly you were married once you entered on the tourist visa. The person in the post you referenced does not have this problem because they entered YEARS before meeting the person who is going to petition for them. You will have to depend on the 60-90 day rule and the kindness of the adjudicating officer.

[emt103c 10]

this is what i found out :

"The I-601 Waiver is most commonly required if the alien has committed immigration fraud, has a criminal record, or has been unlawfully present in the United States for more than 180 days and is now outside the US. "

so people who has overstayed and outside usa and applying for AOS as already married or propective spouse of an USC, they need the waiver. People who got married in any visa, wtihin usa , within the 90 days span but then overstayed and then applying for AOS wont need a waiver as all overstays are excused based on marriage to an USC. This is my finding but all helps and comments are most appreciated. I am very puzzled at this present moment. I am all ready with the AOS packet to post but suddenly this thing arrived. Thanks a lot.

All overstays ARE NOT forgiven. . .but your problem is not overstay, it is Misrepresentation. If the adjudicating officer feels that you had intent to get married and immigrate on entry to the United States, you will have a charge of Misrepresentation, which is a permanent ban, and be required to file an I-601. . . this determination will depend, as I said, on how quickly you were married after entering the United States, and if you can prove why your plans changed and IF the officer respects and/or you fall within the 60/90 day rule.

[Dakine 26]

this is what i found out :

"The I-601 Waiver is most commonly required if the alien has committed immigration fraud, has a criminal record, or has been unlawfully present in the United States for more than 180 days and is now outside the US. "

so people who has overstayed and outside usa and applying for AOS as already married or propective spouse of an USC, they need the waiver. People who got married in any visa, wtihin usa , within the 90 days span but then overstayed and then applying for AOS wont need a waiver as all overstays are excused based on marriage to an USC. This is my finding but all helps and comments are most appreciated. I am very puzzled at this present moment. I am all ready with the AOS packet to post but suddenly this thing arrived. Thanks a lot.

All overstays ARE NOT forgiven. . .but your problem is not overstay, it is Misrepresentation. If the adjudicating officer feels that you had intent to get married and immigrate on entry to the United States, you will have a charge of Misrepresentation, which is a permanent ban, and be required to file an I-601. . . this determination will depend, as I said, on how quickly you were married after entering the United States, and if you can prove why your plans changed and IF the officer respects and/or you fall within the 60/90 day rule.

Very few if not any who can show the have a "for real" marriage are busted for misrepresentation.

PS OP ! The petitioner files a I-864. Not a I-134.

[christera22 8]

ok i will give you the exact dates when and how soon we married. EMT we had a earlier discussion regarding this 60/90 rule and we are , i think fine in that respect. We got married after almost 85 days of his entry here in usa (2nd time entry). Actually the marriage was done just 2 days before his I-94 stamp date expiery, as we were hesitating and was done just at the last moment. So i think we are in that rule. As I sayed earlier the plan changed due to the surgery that has to be done. Its the same reason that the surgery was postponed from september to Jan, why we cdnt file till now .... lac of money. We wd be able to show a declaration from the surgeon that she was on medication and the surgery had to be done in September. Hope we wd be fine .... what do you say ?

[christera22 8]

Plus to give you a better idea of the situation, I was here in September,07 stayed for 2 months and went back although I had visa of 3 months. So i cd have married on the 1st visit if I had the intention to do so ... I have all the air tickets from 1st visit as I was planning for K1. Hope showing this at the interview will help, if at all this question arises.

Also shd i say that we were planning for K1 after i went back the 1st time or shd I not ? Shd i just say that I came here for business and visit on the 2nd time , which is true . What do VJers think wd be helpful for us ? Wd be thankful for all replies .... Waiiting for replies from EMT too.

Edited February 28, 2009 by christera22

[emt103c 10]

Very few if not any who can show the have a "for real" marriage are busted for misrepresentation.

PS OP ! The petitioner files a I-864. Not a I-134.

The misrepresentation would not be for the validity of the marriage. . .but the purpose of the original visa which was stated as tourist and not spousal visa. . .many people get busted for misrepresentation under those circumstances. . . .

christera-I did think we'd talked about this before and yes. . .under the circumstances we discussed it should be okay. . .Your SO sent some PM's while you were sick as well (hope you're feeling better :-) ) and we discussed that you might need to submit some medical records if required, or might want to have them with you at the interview. I do not think the charge will be brought against you because of the extenuating circumstances as well as the fact that the marriage was significantly more than 60 days after his entry.

I would be prepared with the medical evidence at the interview as well as with any proof that he had intended to return home (cancelled return itinerary, ties to home, etc. . . .) and with the copy of the 60/90 day rule that we discussed.