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

[jpaula 20]

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.

Agreed completely. And, in response to the notion that living in a spouse's country makes a waiver impossible...I moved to my husband's country and wrote the hardship letter from the perspective of someone who knows first hand what a permanent move there would mean. We were approved. Every case is different and proving hardship is possible, but difficult. Please research at www.immigrate2us.net where people have direct experience with waivers.

You will also find that almost any immigration attorney will tell your fiance not to leave the country until they are CERTAIN she cannot adjust in-country. This is because the bar is not triggered until she leaves.

Contact Laurel Scott or the other lawyer mentioned as they work almost exclusively with these types of cases.

Good luck.

[pushbrk 12,903]

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.

Bob is the original petitioner. When the K1 doesn't marry the petitioner, their overstay is not forgiven through marriage to a US Citizen. See the mention of "rules" plural. Sometimes it's important to read both sentences in a paragraph to get the context an meaning.

There's still been no mention of any actual hardship. Only the willingness of the petitioner to live abroad. IMO, that indicates there IS no hardship. I'll grant that's only a present tense statement and that circumstances change.

Edited November 20, 2009 by pushbrk

[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.

Bob is the original petitioner. When the K1 doesn't marry the petitioner, their overstay is not forgiven through marriage to a US Citizen. See the mention of "rules" plural. Sometimes it's important to read both sentences in a paragraph to get the context an meaning.

There's still been no mention of any actual hardship. Only the willingness of the petitioner to live abroad. IMO, that indicates there IS no hardship. I'll grant that's only a present tense statement and that circumstances change.

It'd be kind of hard for the overstay to be 'forgiven' via the benefit when the applicant isn't even eligible for the benefit applied for.

As for the waiver - there's several on the thread thinking it's a viable option. I think the OP would be foolish if they didn't investigate it further. His original question was (after all) how they could live in the US - not China.

[Boiler 45,553]

There's still been no mention of any actual hardship. Only the willingness of the petitioner to live abroad. IMO, that indicates there IS no hardship. I'll grant that's only a present tense statement and that circumstances change.

That is NOT how waivers work.

[pushbrk 12,903]

There's still been no mention of any actual hardship. Only the willingness of the petitioner to live abroad. IMO, that indicates there IS no hardship. I'll grant that's only a present tense statement and that circumstances change.

That is NOT how waivers work.

Now there's a statement full of helpful information. Would you care to elaborate?

[Boiler 45,553]

There's still been no mention of any actual hardship. Only the willingness of the petitioner to live abroad. IMO, that indicates there IS no hardship. I'll grant that's only a present tense statement and that circumstances change.

That is NOT how waivers work.

Now there's a statement full of helpful information. Would you care to elaborate?

http://www.scottimmigration.net/I601Memo.pdf

[jpaula 20]

One thing about proving hardship that is often overlooked and may be causing confusion here is that you must prove the extreme hardship of BOTH

1) the USC having to move to spouse's country AND

2) the USC remaining in the US without their spouse.

The trick is to show, and prove through documentation, the Catch-22. So, there is no real advantage/disadvantage to making your case from your spouse's country. The logic of your arguments remain the same as does your evidence. And, of course, it is one thing to say you are willing to relocate and quite another to realize what that entails. It is in the nitty gritty details of the choice that you find the hardship arguments.

In the case of the OP, maybe there has been "no mention of any actual hardship" because he does not yet understand what a waiver is or what hardship means in this context. Given this, the best advice to him is to go learn all he can about the waiver process and let him (and perhaps a good lawyer) decide if he has reasonable grounds for a waiver.

[spookyturtle 9,466]

There's still been no mention of any actual hardship. Only the willingness of the petitioner to live abroad. IMO, that indicates there IS no hardship. I'll grant that's only a present tense statement and that circumstances change.

That is NOT how waivers work.

Now there's a statement full of helpful information. Would you care to elaborate?

http://www.scottimmigration.net/I601Memo.pdf

A consult with Laurel is well worth the price. She will tell you up front what she feels your chances are. She will analyse your hardships and make them work the best way possible for you. No two waiver cases are alike. You need a strong waiver package to make your hardships work for you. There is no set, standard list of hardships. You have to present your hardships in the best way possible. Check out the immigrate2us.net. You will find that to be the best site on the internet for waivers. The people there are very helpful. It takes a lot of time and effort to go thru this process. You need to talk to a good lawyer who specialize in waivers. And someone who has experience filing in China. Besides Laurel Scott and Heather Poole, you make also want to talk to Carl Shusterman. The legal fees will be quite hefty. Probably a minimum. of $7500, plus filing fees.

Talk to a good lawyer before making your decison. Pushbrk is advising you that the waiver is not a realistic option without knowing your circumstances or details. And you will find that emt103c is the most knowledgeable person on this forum concerning waivers and she also participates at immigrate2usnet. Good luck and let us know what you find out.

[spookyturtle 9,466]

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.

Just because one is willing to live abroad doesn't mean that it wouldn't be an extreme hardship to do so. Do a little research and you will find many couples who did live together outside the US during the waiver process and were approved. Naturally some countires are more difficult to get waivers in than others. That's why you interview lawyers before you hire one. You need one who has experience filing in the country that applies to you.

Your advice is misleading. Even if you are a lawyer, you don't know the particulars of this persons situation.

[belinda63 3,038]

In addition to the issue of a waiver a lot of people have overlooked the issue of visa fraud. I mean China is a high fraud country and it was my understanding it is hard to obtain a visa from there. So woman comes to US doesn't marry her fiance, lives here illegally for several years, find another man, and wants another visa.

They are going to have a long road to prove this is a real relationship and not just a way for her to get the green card she missed out on the first time.

[spookyturtle 9,466]

In addition to the issue of a waiver a lot of people have overlooked the issue of visa fraud. I mean China is a high fraud country and it was my understanding it is hard to obtain a visa from there. So woman comes to US doesn't marry her fiance, lives here illegally for several years, find another man, and wants another visa.

They are going to have a long road to prove this is a real relationship and not just a way for her to get the green card she missed out on the first time.

Quite true, it won't be easy and there are no guarantees of success. Consulting with a good lawyer with experience filing thru China is a must. The relationship and hardships will have to be well documented.

[Chica Yeyé 41]

In addition to the issue of a waiver a lot of people have overlooked the issue of visa fraud. I mean China is a high fraud country and it was my understanding it is hard to obtain a visa from there. So woman comes to US doesn't marry her fiance, lives here illegally for several years, find another man, and wants another visa.

They are going to have a long road to prove this is a real relationship and not just a way for her to get the green card she missed out on the first time.

Quite true, it won't be easy and there are no guarantees of success. Consulting with a good lawyer with experience filing thru China is a must. The relationship and hardships will have to be well documented.

Absolutely in agreement. this is not a situation i would trust to any of us self-appointed VJ experts.

[emt103c 10]

I don't think anyone suggested he forgo an attorney, in fact, I think it has been suggested multiple times in this thread. We were simply pointing out that the waiver IS an option contrary to the first 10 pages (give or take) of this thread.