She came K1 with another man...but it wasn't happily ever after....until ME!

[JimVaPhuong 4,863]

Maybe I'm thick skulled here, but so many people from overseas overstay their various visas, marry a USC, and then proceed to adjust their status. USCIS overlooks instances of illegally residing here, if the marriage is bona fide, there has been no criminal behavior, and things are working out in general. Right?

There are different criteria a person must meet in order to adjust status. The criteria vary, depending on the basis they are using for eligibility. Being in legal status and not having worked illegally in the US are usually required, but both of these are waived if the basis for adjustment is marriage to a US citizen. Another requirement is that they originally entered legally, but this requirement is NOT waived for the spouse of a US citizen.

Basically, if someone enters the country legally and stays out of trouble, they can usually get a green card by marrying a US citizen.

[payxibka 10,047]

Maybe I'm thick skulled here, but so many people from overseas overstay their various visas, marry a USC, and then proceed to adjust their status. USCIS overlooks instances of illegally residing here, if the marriage is bona fide, there has been no criminal behavior, and things are working out in general. Right?

but a K-1 MUST only marry the original petitioner that provided the eligibility for the K-1, otherwise they are specifically excluded from adjusting there status based on a marriage to another BY RULE.... It is a specific condition attached to the K-1 entry..

[sachinky 465]

K-1 has one specific condition attached. Simply put -- marry within the stipuated 90 days or leave the U.S.

From what I understand, one can only adjust their status based on their K1 visa if they married the original petitioner.

Which doesn't apply in this case. And the question of overstays being 'forgiven' doesn't come into play here.

[rebeccajo 14]

You can marry her but the result of her failure to marry Bob and adjust her status will be that she is stymied as to any immigration procedures including work authorization. She is deportable at any time and would be subject to a ten year ban from US entry. You may well marry and live happily ever after with an illegal alien but maybe not. If she leaves the USA, volutarily or not, she will not be allowed back in for at least ten years.

You didn't mention the waiver option. why not?

Because I don't consider it viable in this situation. I agree with Pay's earlier comment on the subject.

Pay's comment states that many succeed, and some fail. I guess I don't understand how this isn't a viable option.

The I-601 waiver requires the US Citizen demonstrate a severe hardship to themselves. There obviously isn't one. That's why.

when you made the assertion that it wasn't a viable option the OP hadn't mentioned anything other than the way they met and what the past history is.

What's your point? They aren't married yet. No hardship was mentioned. There's no reason to think there is one. The hardship waiver has been mentioned and opinions offered. How about we move on?

Laura's point is a valid one. Very valid.

What does the couple being married have to do with hardship? Say she goes back to China (which she clearly must do to eventually normalize her life in the US) and he files a K1 for her. Are you under the assumption that a hardship waiver for a fiancee is treated differently than one for a spouse? They aren't - just in case you are confused.

You have no right to suggest the conversation 'move on' from where you are trying to steer it. I realize you are trying to drum up business for your 'visa consultant' enterprise, but how about telling the OP all of his options?

I am messaging the member emt103c for his opinion regarding a wavier filing for this couple.

[pushbrk 13,116]

You can marry her but the result of her failure to marry Bob and adjust her status will be that she is stymied as to any immigration procedures including work authorization. She is deportable at any time and would be subject to a ten year ban from US entry. You may well marry and live happily ever after with an illegal alien but maybe not. If she leaves the USA, volutarily or not, she will not be allowed back in for at least ten years.

You didn't mention the waiver option. why not?

Because I don't consider it viable in this situation. I agree with Pay's earlier comment on the subject.

Pay's comment states that many succeed, and some fail. I guess I don't understand how this isn't a viable option.

The I-601 waiver requires the US Citizen demonstrate a severe hardship to themselves. There obviously isn't one. That's why.

when you made the assertion that it wasn't a viable option the OP hadn't mentioned anything other than the way they met and what the past history is.

What's your point? They aren't married yet. No hardship was mentioned. There's no reason to think there is one. The hardship waiver has been mentioned and opinions offered. How about we move on?

Laura's point is a valid one. Very valid.

What does the couple being married have to do with hardship? Say she goes back to China (which she clearly must do to eventually normalize her life in the US) and he files a K1 for her. Are you under the assumption that a hardship waiver for a fiancee is treated differently than one for a spouse? They aren't - just in case you are confused.

You have no right to suggest the conversation 'move on' from where you are trying to steer it. I realize you are trying to drum up business for your 'visa consultant' enterprise, but how about telling the OP all of his options?

I am messaging the member emt103c for his opinion regarding a wavier filing for this couple.

You're reading all sorts of things into this that just aren't there at all. I said there isn't a hardship to the US Citizen. Nothnt was mentioned at all about fiance vs spouse situations. My business interests are in no way served by advising people to leave the USA for ten years.

K-1 has one specific condition attached. Simply put -- marry within the stipuated 90 days or leave the U.S.

From what I understand, one can only adjust their status based on their K1 visa if they married the original petitioner.

Which doesn't apply in this case. And the question of overstays being 'forgiven' doesn't come into play here.

This was addressed in the first post with "because she didn't marry Bob......"

K1 is a hard exception to the practice of forgiving overstays. It's a special visa category with special rules.

[emt103c 10]

The I-601 waiver is a perfectly valid option for this couple. Like rebeccajo says, they could file as fiancees or as spouses and the waiver is treated the same. I would say that there are probably MANY problems for the OP that could count as Extreme Hardship.

The OP needs to consult a good immigration lawyer and check out www.immigrate2us.net for more information on the waivers. If memory serves me correctly, China isn't even one of the longer 601 processing times. I don't understand why anyone would rule this option out at all. . .

OP, someone else here recommended Laurel Scott for a consultation, she is VERY reliable, you could also consider Heather Poole. Your fiance is facing a ban, but it can be overcome. As for the effect on you that you asked about, the only effect on you is having to live separated for a limited amount of time as well as the stress of the immigration process. You mentioned naturalization. . .please read up on the process here and on www.uscis.gov. The process is much longer than that. As fiancees or spouses (in your case I do recommend you do spousal because she already overstayed one k1 and that may appear suspicious to the CO. . .) you file a petition with USCIS, it goes to the NVC and is processed further and then she is given an interview at the consulate in China. It is at this point she would have to voluntarily leave and at or after the interview she will be denied and required to file the I-601 waiver. You will have to prove that her absence would cause you Extreme Hardship living without her in the United States and that it would be an Extreme Hardship for you to live in China. Many, many people have successfully obtained waivers in much more egregious overstays and even criminal convictions. . .

[pushbrk 13,116]

The I-601 waiver is a perfectly valid option for this couple. Like rebeccajo says, they could file as fiancees or as spouses and the waiver is treated the same. I would say that there are probably MANY problems for the OP that could count as Extreme Hardship.

The OP needs to consult a good immigration lawyer and check out www.immigrate2us.net for more information on the waivers. If memory serves me correctly, China isn't even one of the longer 601 processing times. I don't understand why anyone would rule this option out at all. . .

OP, someone else here recommended Laurel Scott for a consultation, she is VERY reliable, you could also consider Heather Poole. Your fiance is facing a ban, but it can be overcome. As for the effect on you that you asked about, the only effect on you is having to live separated for a limited amount of time as well as the stress of the immigration process. You mentioned naturalization. . .please read up on the process here and on www.uscis.gov. The process is much longer than that. As fiancees or spouses (in your case I do recommend you do spousal because she already overstayed one k1 and that may appear suspicious to the CO. . .) you file a petition with USCIS, it goes to the NVC and is processed further and then she is given an interview at the consulate in China. It is at this point she would have to voluntarily leave and at or after the interview she will be denied and required to file the I-601 waiver. You will have to prove that her absence would cause you Extreme Hardship living without her in the United States and that it would be an Extreme Hardship for you to live in China. Many, many people have successfully obtained waivers in much more egregious overstays and even criminal convictions. . .

Varied opinions are always welcome. If the OP wants to try a hardship waiver, he's welcome to do so. I would not recommend it in this situation, as I would expect it to fail. While there COULD be hardships, they need to be severe. Somebody willing to live abroad with their spouse for several years is pretty much the prime example of somebody who would NOT QUALIFY for a hardship waiver. Opinions vary.

[SuperDuper! 230]

Talk about an uphill struggle and immigration nightmare. You really need to understand what you would be facing trying to undue the past deeds. Good luck in whatever you decide.

[Kathryn41 3,205]

This thread hasn't really fit cleanly into any forum yet but it appears the discussion is revolving more and more around a waiver situation, so I am moving this thread to the Waivers forum as a more appropriate location for this discussion.

[rebeccajo 14]

The I-601 waiver is a perfectly valid option for this couple. Like rebeccajo says, they could file as fiancees or as spouses and the waiver is treated the same. I would say that there are probably MANY problems for the OP that could count as Extreme Hardship.

The OP needs to consult a good immigration lawyer and check out www.immigrate2us.net for more information on the waivers. If memory serves me correctly, China isn't even one of the longer 601 processing times. I don't understand why anyone would rule this option out at all. . .

OP, someone else here recommended Laurel Scott for a consultation, she is VERY reliable, you could also consider Heather Poole. Your fiance is facing a ban, but it can be overcome. As for the effect on you that you asked about, the only effect on you is having to live separated for a limited amount of time as well as the stress of the immigration process. You mentioned naturalization. . .please read up on the process here and on www.uscis.gov. The process is much longer than that. As fiancees or spouses (in your case I do recommend you do spousal because she already overstayed one k1 and that may appear suspicious to the CO. . .) you file a petition with USCIS, it goes to the NVC and is processed further and then she is given an interview at the consulate in China. It is at this point she would have to voluntarily leave and at or after the interview she will be denied and required to file the I-601 waiver. You will have to prove that her absence would cause you Extreme Hardship living without her in the United States and that it would be an Extreme Hardship for you to live in China. Many, many people have successfully obtained waivers in much more egregious overstays and even criminal convictions. . .

Varied opinions are always welcome. If the OP wants to try a hardship waiver, he's welcome to do so. I would not recommend it in this situation, as I would expect it to fail. While there COULD be hardships, they need to be severe. Somebody willing to live abroad with their spouse for several years is pretty much the prime example of somebody who would NOT QUALIFY for a hardship waiver. Opinions vary.

Without more facts how can you make a recommendation?

Edited November 20, 2009 by rebeccajo

[rebeccajo 14]

This was addressed in the first post with "because she didn't marry Bob......"

K1 is a hard exception to the practice of forgiving overstays. It's a special visa category with special rules.

K1's get forgiven for overstays at adjustment of status every day of the week. Everytime a K1 entrant fails to file their adjustment before the I94 expires, they begin to accrue overstay time. But they adjust just fine via their marriage to a USC and the provisions of 8 (CFR) 245.

The "special rule" is a K1 can't adjust their status by any means other than marriage to their petitioner.

[Minya's wife 25]

This was addressed in the first post with "because she didn't marry Bob......"

K1 is a hard exception to the practice of forgiving overstays. It's a special visa category with special rules.

K1's get forgiven for overstays at adjustment of status every day of the week. Everytime a K1 entrant fails to file their adjustment before the I94 expires, they begin to accrue overstay time. But they adjust just fine via their marriage to a USC and the provisions of 8 (CFR) 245.

The "special rule" is a K1 can't adjust their status by any means other than marriage to their petitioner.

The devil in those details you [push] like to refer to so often!

[Boiler 46,108]

I have only come across one example of a situation that a waiver looked a really long shot.

This is certainly nothing close.

There is absolutely nothing to suggest a waiver would not be practical.

[sachinky 465]

I'm curious. Would this waiver be applicable if they filed for CR1 or AOS?

And also, even if overstays are forgiven, isn't the "special rule" that a K1 entree can't adjust their status by any means other than marriage to their ORIGINAL petitioner?

[rebeccajo 14]

I'm curious. Would this waiver be applicable if they filed for CR1 or AOS?

And also, even if overstays are forgiven, isn't the "special rule" that a K1 entree can't adjust their status by any means other than marriage to their ORIGINAL petitioner?

A K1 only has one petitioner.

And yes CR1 beneficiaries can file waivers abroad.

AOS applicants can also file a hardship waiver from within the States. Common wisdom has always been they are rarely approved. I have no idea why the Service anecdotally has declined hardship waivers filed with an adjustment while being more inclined to approve the same set of circumstances for a visa applicant. Maybe a waiver expert can clear that up for us.

Edited November 20, 2009 by rebeccajo