overstay fiance, scared of losing my love

[Rebecca Jo 1,962]

Good post from Vanessa, albeit a bit too cautious for my personal taste. Yet better safe than sorry is certainly good advice here as well.

Here's the short version:

if you want to get married quickly and don't want to live apart anymore, have him stay, get married, and apply for AOS. The chances that he gets in trouble for overstaying are close to zero, as long as he doesn't get in trouble with the law.

If he needs to go back soon, have him go back, the file the K-1 for him. Problem is, even if the overstay of less than 180 doesn't trigger an automatic ban, it still can trigger one. It's not very likely, but it's possible.

I guess it all depends on how soon your divorce becomes final, how soon you want to get married again, and whether or not he needs to go back to England to take care of business. The whole AOS process alone can take several months.

You cannot get the bar for an overstay of less than 180 days. There is nothing 'likely' about it.

What does happen for a VWP entrant is this; if they overstay the VWP by even ONE day, they can never travel on it again. They have to get a visitor visa to travel.

[VanessaTony 3,567]

From everything I've read recently, AOSing from the VWP isn't possible once the I-94 is expired.

Overstaying right now isn't a big issue. He might make himself ineligible for the VWP but he's not going to get banned and it won't stop him applying for a spouse/fiance visa. He should go home (he won't have a ban unless it's over 180 days, then it's a 3 year ban, 365 days = 10 year ban) and you should apply for a fiance (k1) or spouse visa (cr1). Personally I think the CR1 is the best option.

There was a thread yesterday or the day before about a couple that applied for AOS but didn't send the right documents so by the time they sent it again he was past the I-94 expiration date and officers came to his door and detained him. I think you should look into this right now. You don't want to risk it if this is what you're thinking.

Above all else KNOW that overstaying right now DOES NOT stop him from getting a spouse or fiance visa. He WILL NOT have a ban from it. He will need to note it where asked but otherwise, not an issue. Make sure you keep ALL paperwork about the volcano etc so if he wants to apply for a visitor visa down the track you have proof of why the overstay was "accidental".

Good luck!

Vanessa -

There has been no change in the law that prohibits an adjustment filing from the VWP.

*edited because some days I cannot spell*

No, there hasn't but there HAS been a change to what happens once the I-94 expires which is what I said. I never said AOS from VWP was no longer possible, I said, recent cases (and changes in the law in circuits such as the 7th circuit) have resulted in people being denied if they try and AOS AFTER the I-94 has expired. In case you missed it I then posted this:

My only issue is this: http://www.immigrantjustice.org/litigationupdate/7thcircuit/bayo012010blog.html specifically:

"5. The next question is whether there's a conflict between INA 245© - which bars VWP visa overstays from adjusting, except for immediate relatives - and the VWP waiver provisions. The CtApp resolved the apparent ambiguity by interpreting 245©(4) to apply only where someone applies for adjustment of status before falling out of VWP status, and thereafter awaits adjudication of the Adjustment application." [emphasis added]

Also this: http://britishexpats.com/forum/showthread.php?t=651746 specifically this:

"I don't know what else this case might mean (there are some other issues that may be setting new precedent on other topics) but I do think that the posters here who have claimed 'overstay doesn't matter' should be aware that it might matter now, and people adjusting from a VWP should know that what was, in the past, may not be, in the future."

[Vivi6 12]

As much as I LOVE the idea that I could have AOS'd while I was visiting in the US, knowing that if denied I would not be able to appeal (you give up that right with the VWP) and I would be deported and spend MORE time away from my man, I decided that going home where I could work and save money for our future was the best idea. Being apart sucked of course but I knew we would be together again and that I had done the right thing by leaving when i did. If I could go back the one thing I'd change is i'd have got married there and applied for a CR-1 so I could work as soon as I got here. Not only is it cheaper in the long run but being able to work would have been a great thing.

Hope that helps

[Vivi6 12]

Ok I meant to post it after the quote but it's not working!

Anyways, word to Vanessa! I wish I had known about the CR-1 too, now I am wondering if it's available for all countries? Anyways, off topic. I agree with Vanessa and I think since he overstayed 40 days or so and you had the volcano issue I don't see a problem in applying for either k1, k3 or CR-1. Has he overstayed before or been denied a visa? The AOS from VWP is too risky in my opinion and it could complicate things MUCH more in case of a ban...a few months apart will be hard, true, but what about 10 years?

[Rebecca Jo 1,962]

No, there hasn't but there HAS been a change to what happens once the I-94 expires which is what I said. I never said AOS from VWP was no longer possible, I said, recent cases (and changes in the law in circuits such as the 7th circuit) have resulted in people being denied if they try and AOS AFTER the I-94 has expired. In case you missed it I then posted this:

Vanessa, I spoke to you in your thread in Site Discussion (which got moved to the News forum) about these decisions. And I am familiar with these decisions because I've posted links to both of them before.

They aren't changes in law; lawyers refer to resolved cases as "case law". Simplistically, case law works in the following manner: a judge says "thus and such happened and My Peer in such and such circuit made this point of law and it makes sense to me and it influences my decision".

In the extanct examples, there was SOMETHING ELSE WRONG WITH THE FILING but the judges ruled against the plaintiffs by pinning to the marriage being outside the time of the I-94 or the fact that VWP entrants waive rights to an appeal.

This is significant for a couple of reasons. The more of these decisions there are the more likely other judges will come to the same conclusion. And AO's at USCIS could actually start looking more carefully at cases for any vaguery in them and then say the technicality of violating the terms of the VWP is enough to justify the denial. But right now, at this moment, we aren't there yet.

[Bernie C 24]

Just a few things I would throw caution to the wind about:

1) While snowstorms and volcanos are good reasons for a flight to be temporarily delayed these are not valid reasons for extended overstays therefore this information has limited value.

2) The price of tickets would not be a valid reason for overstay either.

3) Waiting for a divorce to be final so you can get married would also not be considered a valid reason for an overstay.

Be careful what you use as an excuse for the overstay and how you present it or you may be digging a hole deeper than you realize.

[ninmo068 1]

It does seem that things may be changing. The OP has reason to worry, I think. Personally in this situation I'd seek the advice of a good lawyer who keeps up with things like this.

I may be way off. But it seems like the OP needs to choose between:

1. sending her fiance home (married or unmarried) and applying for a K1/CRI, with a possible risk of a ban

2. marrying now and applying for AOS after the I-94 has expired, with possible risk of denial due to overstay

Am I understanding right?

The question of overstay has been pretty much a non issue as far as I can tell, until more recently. My husband was a VWP adjuster, with long overstay. We had no problems at all, this was just last year.

It just seems like I am reading more often that the overstay may now be an issue.

It seems to me that if the OP's fiance has overstayed less than the 180 days that he would be better off to go home at this point. There seems to be less risk involved that way, IMO. I personally would have taken the less risky option, had there been one.

I am also wondering if the OP's divorce being in such close proximity to a new marriage would raise any red flags.

The marriage would have been over, if my divorce lawyer would have filed the papers when i first paid him as he had represented he was doing, and had done. I would have sent him home (not that i would have wanted to) if i could have afforded the now High priced ticket. The ticket to get him home one way is $4700 ... i mean OMG.

[Rebecca Jo 1,962]

Where is your fiance from?

I've never heard of a plane ticket costing that much unless it was first class or business class.

[LT.Nora 7]

ninmo068 said before that the lawyer she consulted advised her that they "seem to be stuck". So it probably isn't so easy as to just send him home and file for CR-1, K1 visa or AOS in here.

Lots of people get approved filing AOS from VWP or tourist visa if they have sufficient amount of proof for their relationship. You should think about if you want to spend that thousand dollars for his ticket to fly home and then extra money for filing fees abroad, plus his ticket to the USA and issues at the airport for overstay, or would you rather use it towards his filing fees for AOS in the USA and have him stay with you.

Go to an experienced lawyer. Only the lawyer will tell you the best possible solution to YOUR circumstances.

I also hope you have enough of evidence that you lived separately from your ex, because getting married so quickly after divorce may cause you problems too.

[ninmo068 1]

Where is your fiance from?

I've never heard of a plane ticket costing that much unless it was first class or business class.

Today.... It is $2533.10 for a one way ticket

[ninmo068 1]

Just a few things I would throw caution to the wind about:

1) While snowstorms and volcanos are good reasons for a flight to be temporarily delayed these are not valid reasons for extended overstays therefore this information has limited value.

2) The price of tickets would not be a valid reason for overstay either.

3) Waiting for a divorce to be final so you can get married would also not be considered a valid reason for an overstay.

Be careful what you use as an excuse for the overstay and how you present it or you may be digging a hole deeper than you realize.

I agree... I think you are very correct on that. The only problem is...really i don't have the money to send him back. So the overstay with no money is all i can say. That's the truth.

[LIFE'SJOURNEY 970]

Then just consider it poor planning on someones part, just don't use it as an excuse for not doing the right thing.

Now, you can only move on to do what it is that you'll wish to accomplish. The question is are you'll risk takers or not. If not, then find a cheaper plane ticket and have your SO return home. If you are start filling out the forms and hope for the best. But just keep it in the back of your mind, that there will be no room for appeal if you'll are denied.

[Rebecca Jo 1,962]

Today.... It is $2533.10 for a one way ticket

Where's he from? The North Pole?

[trillium13 84]

Today.... It is $2533.10 for a one way ticket

I'm also curious where you're flying to and from for that price. Seems really high but I don't fly too much.

[ninmo068 1]

Where's he from? The North Pole?

LOL... NO!!! We might be better off if he was. Really... that was a one way ticket flying with Delta. Even using some of my flier miles.