G'Day - New Here And In A Right Mess!

[ashmcfunk 0]

Hi everyone - I just registered and am hoping to hear of other people's stories in situations similar to mine.

So, I'm an Australian citizen. I travelled to the United States in April 2009 to spend time with my boyfriend on a 1 year visitor's visa (B1/B2). My I-94 was stamped with 6 months when I entered the country in LA.

The boyfriend and I had been discussing getting married, as it's pretty much a necessity so that we could live together in the States, so I can work and pay taxes etc etc.

I was planning a trip home to Australia, to return in March 2010, as my visa was to expire at the end of March. While researching what visa to apply for on my return, we realised that the I-94 document is basically authorisation to be in the country, and that it had expired in October, meaning my visa was no longer valid, as I had overstayed and was now illegally in the country!

From what I understand from research, this happens to a lot of Australians, because we simply don't know that the authorisation is giving you the date at which time you MUST leave the country. I never found any information on it while I was researching and applying for my visitor's visa, and it was not mentioned at my interview at the consulate. That said, it is not an excuse, as it's my responsibility to make sure of these things, I am just trying to explain how I screwed up. I was asked at immigration why I was entering the country, and that was that. I had wrongly assumed that I would just be asked upon leaving, a few more questions to determine where I was and what I was doing.

So! At that, we rushed out and got married. Of course, this will seem suspicious, and we will be hassled about it to prove that it's genuine, which is fine.

I left to come back to Australia a week later. One thing that interested me, and perhaps someone can shed some light on it for me - I took a flight from NY to LA, and transferred right to my flight to Sydney, so my passport was not stamped, nor was the I-94 sheet stapled in my passport removed. Is that normal? About half the people on my flight did the same thing, so I guess I'm just a little concerned that I was not stamped as leaving the country. The I-94 was actually removed by a customs officer, checking my passport and my declaration form in Sydney as she realised it was still in there. Who knows where it ended up, because she was only there to make sure I had no food in my bags.

Anyway. It doesn't stop here, I now have questions.

Our immigration lawyer told me to go on back to Australia and to apply for the 130 while I was here, which matched information I found on the relevant websites. My husband has the documents together, we are waiting on affidavits to be signed by friends and then he will file. We plan to file for the K-3 visa so that I can go back to be with him, but I am unsure of my chances because of my horrible overstay. Does being married cancel that out? Also, am I required to spend a certain amount of time in my home country now, because I was in the United States for so long? A friend of mine must stay here for 3 months as she had spent 9 months of the year in the States.

Also, I hear that a K-3 can take a lot of time to be processed. Is it worth applying for a visitor's visa at the consulate? Also, would this be rejected because of my overstay?

I have looked online, sent emails to the consulate (no replies), and listened to ridiculous amounts of pre-recorded information, but never am able to find a human to speak to me at the consulate. I am thinking of applying for a visa, if only to speak to someone face to face and find out what the best approach for me is.

Another problem (!) is that my husband and I plan to live in Australia for a few years, starting in October 2010. Is it true that if I am granted a greencard that it will be deemed as abandoned if I do not spend time in the States within a 12 month period? We are going to put in the application as soon as possible in any case, because obviously it will take substantial time to be processed.

We will apply for the equivalent in Australia once he arrives here, as he will need to work. Can you do the two concurrently?

If you have read this far, you've done well. And if you can help me with any of this mess, thank you! I appreciate all and any feedback, but please keep it constructive. I'm already feeling depressed and fragile at having to spend time away from my loved one, so I don't want to hear any negative feedback about where I went wrong. Be gentle

[Deb+Steve 13]

If you plan on living in Aus with your husband as of Oct 2010 then you would be better suited to not file but wait until your husband arrives in Aus, fulfills the 6 month residency requirement and file via DCF when you're ready to return.

Hate to say this but you will probably not have your CR1 by October. K3 visa is obsolete ... read the following:

'Effective February 1st, 2010, when both the I-129F petition for a non immigrant K visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC), the availability as well as the need for a non immigrant K-3 visa ends. If the NVC receives both petitions: The non immigrant K visa will be administratively closed.'

Good luck ...

[English Muffin 59]

As your post has lots of questions I'll move it from 'Introducing our members' to the 'General Immigration' forum where you'll hopefully get more responses.

[trailmix 77]

Hi and welcome!

The I-94 was actually removed by a customs officer, checking my passport and my declaration form in Sydney as she realised it was still in there. Who knows where it ended up, because she was only there to make sure I had no food in my bags.

It's correct that the customs officer removed it, they should record when you left.

Our immigration lawyer told me to go on back to Australia and to apply for the 130 while I was here, which matched information I found on the relevant websites. My husband has the documents together, we are waiting on affidavits to be signed by friends and then he will file. We plan to file for the K-3 visa so that I can go back to be with him, but I am unsure of my chances because of my horrible overstay. Does being married cancel that out? Also, am I required to spend a certain amount of time in my home country now, because I was in the United States for so long? A friend of mine must stay here for 3 months as she had spent 9 months of the year in the States.

Getting married does not cancel that out. I suspect you have heard that - but in a different context. If you had stayed in the U.S., after marrying your Husband and applied for an adjustment of status (not leaving the U.S. until that was finished processing or you got advance parole) THEN they would probably forgive your overstay. Once you leave the country - that's not true.

Now, that is not to say that it will cause you a huge hassle - however it might. I'm going to leave this question for someone who did overstay and later applied for the CR1.

Also, I hear that a K-3 can take a lot of time to be processed. Is it worth applying for a visitor's visa at the consulate? Also, would this be rejected because of my overstay?

K-3, CR1 - they take about the same amount of time, although the CR1 might be a few weeks longer. The only difference is that with the CR1 you do the paperwork upfront - with the K3 you adjust status after you arrive in the U.S. Again, don't know how your overstay will be viewed.

Another problem (!) is that my husband and I plan to live in Australia for a few years, starting in October 2010. Is it true that if I am granted a greencard that it will be deemed as abandoned if I do not spend time in the States within a 12 month period? We are going to put in the application as soon as possible in any case, because obviously it will take substantial time to be processed.

So basically, that's 7 months from now, not sure how long it takes to get an interview in Sydney but I suspect you would be just about to travel or have only just travelled to the U.S. with your visa and will be turning right around and going back to Australia in a couple of months. First you have to have the I-130 approved, this can take a month or two. Then, if you get the K-3 (ie: as someone mentioned - you will only get this if your I-129F is approved before your I-130) you will have the interview and if approved at the interview you are good to go to the U.S.

Once there, you have to Adjust status - click the Guides tab above to see what that entails.

So about the time you finish adjusting status (in fact you probably wouldn't be done) it will be time to move back to Australia.

With the CR1 - assuming all your paperwork/interview was done by October, again, you would arrive, stay a month or two and head back - effectively abandoning your U.S. permanent residency.

So to make this long explanation short - you would be wasting your money.

As someone else mentioned, far better to wait until he gets there, file via Direct Consular Filing at the Sydney Consulate (after his residency has been established for 6 months or more) and time it so that it will work out more around the time you are wanting to move to the U.S. in 2 years.

Also, once he is in Australia he can go, as the U.S. citizen and speak to the consulate staff about your overstay and you will then be in a much better position to decide when you actually want to apply.

Good luck!

Edited March 27, 2010 by trailmix

[JimVaPhuong 4,863]

I think the first thing you need to do is find out what happened with the I-94. That could be critical. If your overstay is determined to have been less than 180 days, then there is no automatic ban. The I-94 is supposed to be surrendered when you leave the US. That is how your length of stay is determined. I'm not sure that surrendering it to a customs authority in Australia will result in your departure being properly recorded by the CBP in the US.

If needed, you can contact the CBP and have your departure properly recorded, even without the I-94.

https://help.cbp.gov/cgi-bin/customs.cfg/php/enduser/std_adp.php?p_faqid=752&p_created=1077641280

Provide as much of the listed evidence as you can to prove you actually left when you claim to have left. Once your departure has been recorded, the overstay will be noted in your record, but no automatic ban will be issued provided your overstay was less than 180 days.

In all likelihood, you will not be able to get another visitor's visa to the US, even once your departure has been properly recorded. You are an alien who is married to a US citizen, and who has a history of overstay. There is a very strong chance they will presume you intend to immigrate if you try to enter the US again. Your marriage to a US citizen makes you eligible to apply for a green card, but entering with a non-immigrant visa with the intention of immigrating is fraud.

The advise your attorney gave you is the safest route. Although you would have been eligible to simply apply for a green card while you were still in the US, and your overstay would have been forgiven, there is a possibility that USCIS might have presumed you intended to immigrate when you entered with your visitor's visa. If USCIS would have denied the green card application on this basis, you would have been deported for material misrepresentation, and possibly banned from the US for life. This risk vanishes when you return to Australia and apply for a CR1. Presuming your overstay was less than 180 days, and you did not incur a ban, then you won't need to apply for a waiver.

As far as moving to Australia for a couple of years with a green card, that's not possible. You can apply for a re-entry permit before you leave, which will allow you to stay out of the US for between 1 and 2 years. If you're gone longer than that, or if you don't get a re-entry permit and are gone more than 6 months, they can presume you've abandoned your residency and revoke your green card. A green card holder must RESIDE in the United States in order to be classified as a "permanent resident".

[ashmcfunk 0]

Thank you very much to everyone who has replied so far. You've all been amazingly helpful, I know it's all a big mess, but I am starting to piece it together and get a better idea of what to expect.

[leahandlucas 15]

If the Australian Customs Officer removed it...he/she had NO right to remove it...thats the job of the person just before you board the flight or a U.S. CBP agent that sometimes is there as well...

find it..because it is critical the I-94

[HeatDeath 430]

Don't anyone panic yet! The Australian official removing the I-94 is probably OK, depending on what arrangements CBP has made with the Australian customs organization. When I entered on my K-1 driving from Canada, I got an I-94, and on the back it specifically says that if I am leaving the US by driving to Canada, I am to give it to a "Canadian official". So clearly CBP has some arrangement with Canada customs to get I-94s handed back and processed correctly. They may very well have a similar arrangement with Australia.

Edited March 30, 2010 by HeatDeath

[ashmcfunk 0]

I'm assuming my I-94 was taken at the right time, I didn't notice anyone else from my flight when I was leaving, but there simply was no other time for it to be removed, so I can only assume that it was correct. If it's an issue later, I have plenty of documenation providing that I did leave and arrived back in Australia. No big deal, just something weird that I noticed.

[Nik+Heather 121]

I'm assuming my I-94 was taken at the right time, I didn't notice anyone else from my flight when I was leaving, but there simply was no other time for it to be removed, so I can only assume that it was correct. If it's an issue later, I have plenty of documenation providing that I did leave and arrived back in Australia. No big deal, just something weird that I noticed.

I don't think you can assume that your departure was correctly recorded and that your I-94 was collected at the right time. What happened to you is different to other's experiences. Not to knock the Canadians, but immigration control between the US and Canada especially at land border crossings is just SO DIFFERENT. Unless you get country specific confirmation that this is how it works, you should assume that it was NOT correctly recorded.

I think it is definitely worth chasing up to be sure that your departure was recorded. If you let this issue sit and don't deal with it until years later when you get denied your visa for returning to the US with your husband, you may have lost your documents, or the information may have expired and not been saved, etc.

Maybe if you were someone who was just visiting and probably never coming back to the US this wait and see plan would be alright, but since you see immigration in your future, it would be prudent to make sure that it's all squared away.

Edited April 6, 2010 by Nik+Heather

[Brother Hesekiel 2,236]

The way I see it, there's no point in dealing with US immigration people right now. Coulda shoulda scenarios are pretty pointless at this point, aren't they?

Your husband will move to Australia in October, and you guys try to live life. The only thing I surely would do is start a file labeled USCIS. In it you put all of your tickets and boarding passes, especially the ones that PROVE how and when you left the US of A when traveling back to kangaroo land.

If you happen to live in Australia for many, long, and happy years, none of this matters. If you want to move to the US after 3 years, even a possible ban would have been served. If you want to move to the US before 3 years have passed, and somehow your departure has not been recorded, and your I-94 hasn't made it to USCIS, you still have your ticket and boarding passes to prove the dates you traveled back.

Hence, no need to go gagga over this right now, trying to cross a bridge that isn't even visible at the horizon. Enjoy life.

[Nik+Heather 121]

If you happen to live in Australia for many, long, and happy years, none of this matters. If you want to move to the US after 3 years, even a possible ban would have been served. If you want to move to the US before 3 years have passed, and somehow your departure has not been recorded, and your I-94 hasn't made it to USCIS, you still have your ticket and boarding passes to prove the dates you traveled back.

And if they think she's still in the US all that time because the departure wasn't properly recorded, she'd have to remember all this #######.

Also, I'm not sure what the requirements are for airlines to keep track of passenger lists, but what if that data retention time expires??

I mean, it could be really easy to change, and if she does it sooner rather than later, she can prove that she's out of the US now. At least make sure that fixing this isn't as easy as a phone call and possibly mailing off some copies of her evidence.

[nane1104 146]

I'd strongly suggest too to make sure that your departure is properly recorded. I suppose you could do it later if there are problems, but why wait until there IS a problem? You already overstayed and have to recover from that, why add another issue to the mess?

Plus, it's really not a big deal.

About your immigration journey: I agree, by the time you'd have your visa, it's time to move back to Australia. DCF with your husband being with you in Australia seems to be the easier and more (cost) efficient solution.

So, all in all, your situation isn't such a big mess afterall, CONGRATULATIONS to your wedding!!