K-1 Visa OVERSTAY more than 1 yr

[insamb 0]

My girlfriend came to the USA via the Philippines on a K-1 visa. She never got married to the petitioner and never left the states for 3 years now. We have been currently living together for one year now and want to get married and have a family. My question is, if she goes back to the Philippines voluntarily without being notified of deportation will she be barred from obtaining a new visa if I file for a K-1 or get married 1st and file for a CR-1. She has obtained a renewed passport that does not have her entry date stamped on it. Any input is greatly appreciated..

Many Thanks

[Kathryn41 3,205]

You are in a dilemma. When she arrived on the K-1 she had 90 days in which to marry her petitioner. Once she married, she would then adjust status, but between the time her 90 days expired and she adjusted status - or left the country if she didn't get married - any time she was here would be counted as 'out of status' days. More than 180 out of status days means that when she leaves the US she will incur an automatic 3 year ban upon re-entry to the US. More than 360 out of status days and that automatic ban becomes 10 years. Since she didn't marry her sponsor and has been here without legal status for nearly 3 years, she will incur a 10 year ban when she leaves the US to return to the Philippines. It does not matter if she is unmarried or married - it will still be the same. If she waits to be deported it would be worse, so she does need to leave voluntarily.

The problem is that she can't stay in the US legally without a green card but she has to leave the US in order to be eligible to get a green card - (she was only allowed to get a green card through her original petitioner, no one else, when she entered on a K-1 - that was one of the conditions of the visa and it can't be changed). Leaving the US, however, will trigger a 10 year ban on being allowed to return.

You can try to obtain a waiver from the 10 year ban but it is extremely difficult to do as you need to prove hardship to the US citizen from her not being here and the US citizen having to live outside of the US. Financial and family situations don't seem to hold high regard as 'hardships'.

I am moving this thread from the K-1 forum to the Waivers and Administrative Processing Forum as you will need either a waiver or to wait out the 10 year ban before she will be allowed to live in the US whether you apply for a K-1 or a CR-1.

Edited April 17, 2010 by Kathryn41

[VanessaTony 3,567]

I agree with the above. You're between a rock and a hard place.

- If she stays in the US in her current status (or lack thereof) she can never get a greencard, or work, or get a drivers licence (not legally anyway).

- If she leaves the US she will incur an automatic 10 year ban, for which you CAN apply for a waiver but as said above, they're difficult to obtain.

She will most definitely need to leave the US if she wants a chance to be with you legally. You will need to apply for the K1 visa, which will be denied based on the 10 year ban, and then you apply for a waiver based on hardship.

Your relationship will incur greater scrutiny because she overstayed a previous K1 and failed to obey the rules of the previous visa. you're in for a long and difficult journey. I wish you the best of luck

Edited April 17, 2010 by Vanessa&Tony

[sachinky 465]

Plan on living in the Philippines.

There really is no way out of this.

A similar case was on here a week or so ago.

[insamb 0]

Plan on living in the Philippines.

There really is no way out of this.

A similar case was on here a week or so ago.

[insamb 0]

#1. I have no plans on living in the Philippines. Maybe visit 10 days twice yearly but in reality a 10 yr long distant family relationship is not logical

#2. I have read somewhere on one of these posts that one can get a waiver on an overstay for the spouse of a US citizen, but only if they entered the US legally. Possibly someone can expound on this theory as I see no merit in it.

#3. I have met with someone that has retired from the INS and now helps with processing papers for a nominal fee. She claims that if you leave voluntarily and file for a waiver for the overstay that it shouldn’t be a problem and she does it all the time. We got in a heated debate and she called me a moron in tagalog as I didn’t know what I was talking about. Anyone care to support her theory?

#4. Another attorney recommended that after three years of marriage, possibly a child and a psychologists backed report, we could file for deep anxiety separation issues and have an 80% chance of success. Any thoughts? My understanding is that the exceptional hardship waiver is very difficult in the Philippines.

I am aware of the 3 & 10 yr bans. To me 10 yrs is like an 80 yr old getting committed to a 20 yr sentence. I mean like what’s the difference with 20 or life… little

Any more thoughts and good hypothetical’s for success are greatly appreciated

[belinda63 3,038]

To repeat and elaborate on what has already been said. She entered on a K-1 visa to marry someone else. The terms of the K-1 visa are very clear, you must marry the person who petitioned for you and if not you must leave. You cannot adjust status from marriage to another person, you must leave if you don't marry the petitioner. She will trigger a 10 year ban from entry to the US when she leaves. A waiver is available to overcome this ban but it is difficult.

What makes your situation more difficult than most is the question of visa fraud. She came to marry someone three years ago, did not marry them, and remained in the US illegally. Now she has found someone else to marry and wants to remain in the US legally this time. Big red flag for fraud.

This is not a judgment on your relationship, it is just the way immigration will look at it.

The last suggestion which is she remain in the US, marry, and file based upon extreme hardship I have no knowledge of but I'm sure someone else here does as I have seen it mentioned previously.

But you must remember, she committed what will be looked at as visa fraud, she willingly remained in the US illegally for three years, and this will be very difficult to overcome.

[DanielParul 50]

Unfortunately for you, she CANNOT adjust status after her marriage to you or anybody else while staying in the US. She will need to leave the US and either you file for a hardship waiver which might be difficult to get or start planning your lives together in her home country or a 3rd country.

[Justine+David 218]

Unfortunately for you, she CANNOT adjust status after her marriage to you or anybody else while staying in the US. She will need to leave the US and either you file for a hardship waiver which might be difficult to get or start planning your lives together in her home country or a 3rd country.

Well, couldn't she adjust status based on the original petitioner if she married him? We had a case last week about someone who married the original petitioner, but outside of the 90 day limit and is just filing an I-130 based on marriage to a USC.

Of course, it's a moot point in this situation because it would essentially be visa fraud since she probably doesn't love the original petitioner anymore.

[DanielParul 50]

Well, couldn't she adjust status based on the original petitioner if she married him? We had a case last week about someone who married the original petitioner, but outside of the 90 day limit and is just filing an I-130 based on marriage to a USC.

Of course, it's a moot point in this situation because it would essentially be visa fraud since she probably doesn't love the original petitioner anymore.

Missed that one Probably the only way she can but its been 3 years that she's been in the US illegaly and wants to marry the OP who is not the original petitioner.

[victorious 0]

Hey let her go home without marrying you and then go from there. I remember in our seminar before in CFO that if a K1 wasn't able to marry the petitioner. Then the beneficiary should leave US and not to marry anybody else because if the person will. Then she leave the US she will be block listed in US. Over staying more than one year is not that bad than staying more years to come.

[NigeriaorBust 4,087]

Check out the site immigrate1us.net They are the experts on waivers. They are mostly South American couples but their information is great. It will give you an handle on what you have to prove for a hardship waiver.

[Deputy Purple 1,294]

#1. I have no plans on living in the Philippines. Maybe visit 10 days twice yearly but in reality a 10 yr long distant family relationship is not logical

Sounds like this is a relationship that may be nearing the end then...

#2. I have read somewhere on one of these posts that one can get a waiver on an overstay for the spouse of a US citizen, but only if they entered the US legally. Possibly someone can expound on this theory as I see no merit in it.

Actually, if someone enters the US legally then marries a USC and files for Adjustment of Status their overstay & illegal work is forgiven if the Adjustment of Status is approved, no waiver involved. This does nothing for you as she can only Adjust Status from within the US based on marriage to the original K-1 Petitioner unless she leaves & re-enters.

#3. I have met with someone that has retired from the INS and now helps with processing papers for a nominal fee. She claims that if you leave voluntarily and file for a waiver for the overstay that it shouldn’t be a problem and she does it all the time. We got in a heated debate and she called me a moron in tagalog as I didn’t know what I was talking about. Anyone care to support her theory?

Good Luck with that, the bar for proving hardship is high and you'll also need to prove that you can't live with her in the Philippines.

#4. Another attorney recommended that after three years of marriage, possibly a child and a psychologists backed report, we could file for deep anxiety separation issues and have an 80% chance of success. Any thoughts? My understanding is that the exceptional hardship waiver is very difficult in the Philippines.

Unless the Attorney puts into writing a 100% promise of success then I wouldn't put any weight in that. First the hardship has to be on you not your foreign spouse, second a child you father will have claim to US Citizenship so it would be able to enter the US. Third, unless you can't travel to the Philippines you will be able to visit her.

She has obtained a renewed passport that does not have her entry date stamped on it. Any input is greatly appreciated..

Doesn't matter, she will have to prove when she left the US, just yesterday there was a thread where the Canadian OP left the US after divorce and let her greencard expire. She was barred from re-entry because USCIS "deported" her after she left as a matter of protocol. To get a waiver she has to prove when she left the US.

Edited April 17, 2010 by Bob 4 Anna

[zenaxe 22]

My girlfriend came to the USA via the Philippines on a K-1 visa. She never got married to the petitioner and never left the states for 3 years now. We have been currently living together for one year now and want to get married and have a family. My question is, if she goes back to the Philippines voluntarily without being notified of deportation will she be barred from obtaining a new visa if I file for a K-1 or get married 1st and file for a CR-1. She has obtained a renewed passport that does not have her entry date stamped on it. Any input is greatly appreciated..

Many Thanks

Sorry to hear about this horrible situation you are now facing because of ill informed or high risk bad decision making on your fiance's part. I hope you guys can resolve this but as other posters have said, you've got a long and complicated road because of this. Illegal immigration is a serious problem in the USA and they will deal with it accordingly.

You may want to consult with a competent immigration lawyer.

Good luck.

[NathanC 1]

Pretty serious situation my friend. Here's the cold options you'd have:

- marry her and have her stay here illegally praying for a change in the US Immigration Law that would allow her to get her legal status at some point

- Break-up

- Go together to another fine country that still accepts immigrants: Canada, Australia, New Zealand, Japan, Jamaica (ya mon), Puerto Rico, Brazil etc.

- Get UCLA to fight for your cause

- And even, if you love her that much, you'd even go to the Philippines, I would if I was in your situation. Think about it, you're an American, speaking English fluently with a lot of experience dealing with Americans, how hard do you think it would be for you to get an awesome job in Manila and have even a higher quality of life there than you would here. There's, I'm sure, a lot of American companies doing business there, and even the US Embassy/Consulate there.

Don't worry man, be optimistic, I'm sure this girl will make you happy no matter what part of the world you guys decide to move to. Take the challenge!