Visa expired over 2 years and planned to apply for green card please help

[Bobby+Umit 161]

Forgot to add the part about the 10 year ban due to the 2 year overstay.

Would that require a hardship waiver?

That would be my call.

[Brother Hesekiel 2,236]

Hold on, good people.

I brought this up a while ago and never got a answer I can live with. Maybe we can sort this out for good this time. Let's try:

1) B2 enters the US legally. Overstays. Marries USC 2 years later. Files for AOS. Becomes LPR.

2) K-1 enters US legally. Doesn't marry petitioner. Overstays. Marries (another) USC 2 years later. Files for AOS. Becomes LPR.

YOU GUYS tell me why # 2 will not work, and what makes # 2 different from #1.

Both enter the US legally, with a visa. Both overstay for 2 years. Both marry a USC they didn't even know when they entered the US. Why can #1 file for AOS successfully when # 2 can't?

I know, of course, that the K-1 is explicitly exempt from AOS except when married to the petitioning USC. But why?

Edited April 12, 2010 by Just Bob

[milimelo 4,481]

Hold on, good people.

I brought this up a while ago and never got a answer I can live with. Maybe we can sort this out for good this time. Let's try:

1) B2 enters the US legally. Overstays. Marries USC 2 years later. Files for AOS. Becomes LPR.

2) K-1 enters US legally. Doesn't marry petitioner. Overstays. Marries (another) USC 2 years later. Files for AOS. Becomes LPR.

YOU GUYS tell me why # 2 will not work, and what makes # 2 different from #1.

Both enter the US legally, with a visa. Both overstay for 2 years. Both marry a USC they didn't even know when they entered the US. Why can #1 file for AOS successfully when # 2 can't?

I know, of course, that the K-1 is explicitly exempt from AOS except when married to the petitioning USC. But why?

Because it's in the law - you don't marry the original petitioner, you can't adjust status through someone else.

INA: ACT 245 - ADJUSTMENT OF STATUS OF NONIMMIGRANT TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE

Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to [/url](1) an alien crewman; (2) 1/ subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)© ; (4) an alien (other than an immediate relative as defined in section 201(b) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S) ; (6) an alien who is deportable under section 237(a)(4)(B) ; 1a/ (7) 2/ any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3) , or who has otherwise violated the terms of a nonimmigrant visa.

[Bobby+Umit 161]

Hold on, good people.

I brought this up a while ago and never got a answer I can live with. Maybe we can sort this out for good this time. Let's try:

1) B2 enters the US legally. Overstays. Marries USC 2 years later. Files for AOS. Becomes LPR.

It's in the regulations for them to do that. (as long as their are no adverse factors (or enough to warrant denial))

2) K-1 enters US legally. Doesn't marry petitioner. Overstays. Marries (another) USC 2 years later. Files for AOS. Becomes LPR.

Again, the regulations say they (K-1's) can't do that. It specifically says on the K-1 and AOS, you have to marry the original petitioner or no AOS for you. That (not marrying the original OP) would be a show stopping adverse factor for the AOS. They could get married, but the beneficiary would have to leave the US (No AOS possible), and since they overstayed the initial K-1 I-94 (90 days), they would suffer the 10 year ban (since it's pass 1 year overstay) (remember - the ban doesn't kick in till they attempt to re-enter the US.

YOU GUYS tell me why # 2 will not work, and what makes # 2 different from #1.

Did you get the info you needed from the INA posted above? There is specific wording on the K-1 and the AOS, but the USCIS site won't load right now so I can't link it. The key is the way they entered the US. Similar to EWI - they almost always cannot AOS within the US.

Both enter the US legally, with a visa. Both overstay for 2 years. Both marry a USC they didn't even know when they entered the US. Why can #1 file for AOS successfully when # 2 can't?

(To reiterate - the K-1 person can't because they didn't marry the original petitioner.)

I know, of course, that the K-1 is explicitly exempt from AOS except when married to the petitioning USC. But why?

It's the law. I believe it was written that way to stop people from chugging people over to marry off to someone else. (visa fraud) - or to stop the beneficiary's from just using the USC to get to the US and run off with another person (pre-arranged?) - K-1's are a bit easier to get than a visitors, and easier to get out of than a CR-1, for example.

I know it's kinda strange on how they handle the K-1 - but I think it's pretty fair for both parties. The only thing you would have to worry about (as the USC) is if they pull the VAWA fraud on you - but that is a different story. (and they (beneficiary) have the VAWA if it's really needed)

[immi06 0]

I have talk to my lawyer and their suggestion is to get the Voluntary Departure from the immigration court so it could waive the 10 years ban for overstayed. AFter the court approve for VD then i will get marry with my fiance and i will have to leave the U.S to my home country and have my fiance petition once again. From what my lawyer said that if i could get the VD from the judge then it's 100% that my fiance can bring me back U.S in 1 year. Any advise are appreciate. Have a nice day.

Thanks everyone.

[justashooter 430]

I have talk to my lawyer and their suggestion is to get the Voluntary Departure from the immigration court so it could waive the 10 years ban for overstayed. AFter the court approve for VD then i will get marry with my fiance and i will have to leave the U.S to my home country and have my fiance petition once again. From what my lawyer said that if i could get the VD from the judge then it's 100% that my fiance can bring me back U.S in 1 year. Any advise are appreciate. Have a nice day.

Thanks everyone.

sorry to dissapoint, but the waiver is not guaranteed. you should ask this question at rajiv's forum, immigrate2us, to see what recent experience people are having there. your lawyer is hoping you will be approved for waiver, but should not be telling you it is guaranteed.

you also need to consider the question of working illegally, assuming that you have been working these past 2 years. if you have been using a social security number or identity that is not yours this is big trouble.

[belinda63 3,038]

I think Bob is questioning why the law regarding K-1 visas is as it is. The big reason I can think of is the "oh honey I love you, I want to be with you forever if only I had a visa so I could come marry you" then when they hit the blessed soil of the US they disappear to be never seen or heard of again by the "love of their life". Then a few years later when they decide oh man living her illegally sucks they find another "love of their life" and try to adjust status with them.

Basically it is just a way to deter visa fraud IMO.

[Deputy Purple 1,294]

sorry to dissapoint, but the waiver is not guaranteed. you should ask this question at rajiv's forum, immigrate2us, to see what recent experience people are having there. your lawyer is hoping you will be approved for waiver, but should not be telling you it is guaranteed.

you also need to consider the question of working illegally, assuming that you have been working these past 2 years. if you have been using a social security number or identity that is not yours this is big trouble.

Voluntary Departure

Voluntary departure allows aliens to avoid the 10-year ban on re-entry and receiving benefits by agreeing to depart the United States voluntarily, thus carrying no impediment to legally returning to the United States.

This means there would be no re-entry ban and thus no waiver needed. The downside of this is that the alien needs to present themselves to USCIS to get it. There is also the possibility that she has already been "Deported in Absentia".

[Boiler 45,522]

The first option surely is to stay and wait for amnesty, maybe not this year, but Dems have promised it.

There are ways of adjusting from a K1 other than by marriage to the original petitioner, but probably none that apply here.

If you decide to return and go for the CR1 you will need a waiver, the chances of success with a well written waiver are good, just takes time.

[JimVaPhuong 4,863]

The first option surely is to stay and wait for amnesty, maybe not this year, but Dems have promised it.

There are ways of adjusting from a K1 other than by marriage to the original petitioner, but probably none that apply here.

If you decide to return and go for the CR1 you will need a waiver, the chances of success with a well written waiver are good, just takes time.

Any amnesty will probably require the alien to prove they've been in the US for a long time. I believe the previous amnesty required presence of 10 years or more, and that's the number I hear being kicked around. That presence would need to have been accumulated before the law went into effect, which probably won't help the OP. Without the lengthy presence requirement, any amnesty law would trigger a massive rush for the border.

Anyway, congress and the administration currently seem to be saying that reform isn't going to happen this year. If it doesn't happen until after the next legislature is seated, then I think there's a strong chance that any amnesty provision is going to much stricter than the current legislature might be inclined to grant.

[Boiler 45,522]

10 years is the deadline for Cancellation of Removal.

The last suggested bill used the date of proposal. I understand that last time around many benefited even though they entered later, who is to say when the entry was made.

If there is amnesty she would qualify.

Edited May 5, 2010 by Boiler

[JimVaPhuong 4,863]

10 years is the deadline for Cancellation of Removal.

The last suggested bill used the date of proposal. I understand that last time around many benefited even though they entered later, who is to say when the entry was made.

If there is amnesty she would qualify.

Ok, I googled it. The 1986 law required entry prior to January 1, 1982, or almost 5 years before the law took effect.