Tourist visa expired 2/11 and evaluating marriage

[106206 15]

Background:

---

• She is from Venezuela & I am a US Citizen
  
• She came here 8/2010 on a 6 month tourist visa
  
• Her travel visa expired 2/2011
  
• We met for the first time 2/2011
  
• When we met I was married but my spouse had filed for uncontested divorce 1/2011 (note: I did not ask for the divorce)
  
• My divorce was finalized 3/2011
  
• She is still present in the US and never left since she arrived
  
• She has never been in the US before and has never worked here, claimed to be a US citizen, etc.
  
• She and I are in love and want to get married, and are concerned given her visa situation
  

Questions:

---

1. My understanding is that if she leaves the US before she overstays for 6 months (8/2011) she can avoid having a 3 year ban on re-entry. If this is correct it seems like there is maybe 3 options:

• Get married, file for AOS and she stays in country while things process - is this even viable legally, and if so when could she start working legally?
  
• Get married, she leaves before overstaying 6 months, then I file for her to come in legally. If she doesn't have to leave then this would not be the best option for us.
  
• She leaves before overstaying 6 months, she comes here on a fiancee visa, we get married, and then file AOS. This seems like it involves more time and work than is needed...?
  

2. Given the close timing between my divorce, an expired travel visa, and a marriage, would this throw a flag or otherwise change the right approach?

3. I am pretty hands-on with this kind of stuff (sadly, I did my own divorce filings for about $550) but given the need to get things right the first time. I am wondering if an attorney is the right approach for us, perhaps to guide me down the right path and if I want to file the forms myself I can do so.

Thanks in advance for the advice. I will continue to read up on existing posts, wiki, etc.

[Harpa Timsah 13,258]

Your three options are all viable. However, to your questions, yes, all of those things (extremely short courtship, met when her visa was expiring, divorce occurred after you met) will be red flags and probably cause the IO to give your case added scrutiny. They could interpret that she realized she was about to have to leave so she found a vulnerable man in the middle of a divorce to latch on to so she could stay in the country (this is just a possible interpretation, so please forgive the offense). Having her leave and pursuing a family VISA may lessen the severity of these flags - it would show trust between you two and not desperation. But, the choice is yours to make. Best of luck to you.

[Little_My 464]

I would from personal experience suggest that you might want to take a couple of more months to make sure marriage is the right thing for you right now - it does seem very very fast, and you have just gone through a divorce process as well. In that sense, maybe the K1 process would be better - it would give you time to get to know each other better and be sure that this is the right path for you two.

But, that is not the type of advice you are looking for from this forum. So, consider it or ignore it - just my personal opinion.

She can adjust status from an expired B1 if you two marry, without having to leave country. Note that if you take that route, since she has overstayed her visa, it is not advisable for her to leave the US at all during the processing, until she has her physical green card in her hand. It is pretty likely that you will be strutinized in the interview, and that there will be doubts about the validity of your marriage. To an IO, it can easily look as though she was looking for a way to stay in the US, met you, you had just gone through a divorce, and now you are marrying to keep her in the country. It is on you to overcome these suspicions, and given the short time you have been together, it can be hard to prove bonafide marriage. What would you submit? I assume you do not yet have a joint lease, joint bank accounts, insurance, phone plan - marriage certificate alone is not enough to establish a bona fide marriage for AOS application. So give some thought to that issue, read what people have submitted, and think about how you would convince the IO that this truly is a bonafide marriage.

Assuming you went with the AOS route, from the time you submit the application (assuming no RFEs along the way or other major delays), getting the GC takes on average 4-6 months, if she is approved.

K-1, she would leave the country, you would apply for the K-1, and she would then re-enter as your fiance and you would have to marry in the US within 90 days. You would then continue to do the AOS process to a legal permanent resident, but my understanding is that there is no real time limit within which you would have to submit that. According to VJ, it takes about 7-8 months to get the K1.

CR1, you two would marry wherever - here, Venezuela, Sweden - and then apply for the CR1 spousal visa for her. She would have to be outside the US for that process, so even if you married here now and went with the CR1, she would have to leave country (and before the 180 of overstay are accumulated to avoid a ban). VJ says 9 months to get the CR1 - but the upside of this visa is that once she would enter with CR1, she would immediately become an LPR and be able to start working upon entry. While the CR1 was pending you could of course visit her in Venezuela, and she could visit you here, as long as she would be able to get a new tourist visa.

I can't really say anything about the lawyer issue - in the end, lawyers cannot change facts, and the facts of your case are that she overstayed her visa and you just got divorced, and you have only known each other for a few months before planning to get married. It is on you to overcome the suspicion of a fraud marriage. Lawyer can help with that, assuming that it's actually a good lawyer who knows what he/she is doing (they don't all really know, it seems..) but whether or not it would make a big difference in this case, I don't know. Someone will surely weigh in on this issue more soon.

Edited May 2, 2011 by Little_My

[Brother Hesekiel 2,236]

She didn't overstay her visa. The visa is the entry pass to the US, the I-94 determines the authorization to stay.

If she leaves now, she will still have an overstay. If her overstay is less than 180 days, it won't trigger an automatic bar but it can still trigger the denial of a K-1 visa petition based on the assumption that it's just a means for her to immigrate to the US. They are under no obligation to issue her a visa and they are under no obligation to explain their reasons for their decision to her in detail.

If she stays and marries you, it will still look weird. Common sense dictates that a man who just got divorced will have learned his lesson. If he jumps right into the second marriage immediately afterward, the moment a woman from a foreign country is entering a period of overstay, they will, not surprisingly, have a closer look.

There is no easy way, and there's no right way to do this. Viewing at this from your personal perspective, I'd say get to know this woman a bit better, day in, day out, in normal situations and in stress situations, before you vow to spend the rest of your life with her, as you did with your first wife before. There are no guarantees in life, but marriage is, or at least should be, a big deal for anybody. You should not allow yourself to be pressured, knowingly or unknowingly, into marrying someone based on immigration concerns only.

As politely as I can state this: don't be a fool. You are apparently a smart man, so take a step back and then nine more. Only thereafter take one step forward and do this step by step. Have you ever been to Venezuela?

[106206 15]

First I'd like to say thank you for the detailed and honest replies.

No offense taken on calling out the obvious regarding circumstances. Obviously it's up to me (and her) to make a call on if things make sense.

Beyond the legal ramifications, the concept of dating someone for an extended period on this situation seems fruitless.

For example...

1. No legal right to drive = no car = no job = no money = no independence.
   
2. She lives with her aunt for free which is in exchange of her working 5 days a week doing house cleaning.
   
3. This results in her living with her aunt who imposes her value system on her, which is a bit "old school" so to speak.
   
4. She has a university degree and had a successful career back home. Now she is cleaning toilets for housewives on Prozac who spend all day on Facebook (no offense to anyone fitting the description)
   
5. The lack of freedom and the lack of independence takes an emotional toll on her for obvious reasons.
   
6. Of course she could just get a car, start working under the table, get her own place, etc. but that all presents a risk of being deported and is illegal.
   

All of our interactions have been great. I can honestly say that she and I fell into each other by chance, it is not something that either of us sought out.

The way I see it we can:

1. Part ways and wish her best of luck
   
2. Change the situation into something that is viable yet somewhat risky
   

If I had the opportunity to take off with her and live abroad for some time I'd do it, but I make a great living here.

Technically she could come live with me, which is near bus/train, and then she could get work under the table.

That doesn't fix the problem with her overstaying by 180 days, it seems it would just prolong the problem and add more challenges later.

I've been there before 12 yrs ago with the girl looking for the greencard to whom I said best of luck.

I don't think this is the case in the current situation. Rushed...perhaps, but malicious no.

To me biggest risk is not getting married too soon, it would be having kids unplanned and that can happen today without marriage. I will do prenup again which is not 100% but it does largely hedge me against financial risks. And if it doesn't work within the 2 years as I understand it, the whole process of her getting citizenship unwinds itself. I'd like to think we'd know how things are working out within 2 years...

It sounds to me like should this be the right thing for her & I, that there are a few options that warrant more research on my part and likely consultation with an attorney - once I've fully steeped myself into the content/topics.

Thanks again for the honest advise...

[Brother Hesekiel 2,236]

Your new post confirms even more that you are a well-educated man. So let me clear something up for you, in regard to the "unwinding" of the citizenship issue if your marriage fails within the 2-year time period.

Not so. Nope. Nada. No!

As the petitioning US citizen, you'll have to submit an Affidavit of Support for the foreigner who is allowed to reside in the US based on your petition. That means, you'll be signing on the dotted line that the foreigner won't become a public charge, and that Affidavit of Support will be active until:

1) she dies,

2) she's being deported,

3) she becomes a US citizen,

4) she has accumulated 40 units into SS.

Point 4 is the good one. If you guys divorce in a year or so, she can remove conditions without you. She can divorce you and you'll be picking up the tab. The judge will give her plenty of alimony, and you'll be paying, again. You'll be paying for your lawyer and her lawyer. If she's not working full time, and who would if a fool sends a monthly check, she won't be paying into SS. That means you can potentially be on the hook for the rest of your natural life. She has a car accident, no medical insurance, ambulance picks her up. Guess who's getting the bill? You, again.

I don't know you; I don't know her. Hence, I can't make a judgement. What I can do, however, is open your eyes to the potential financial Tsunami you are considering bringing upon yourself. Maybe she is the nicest, most honest woman in the world. Maybe she's your soul mate. But maybe your lower brain is clouding your judgement a bit and you are about to commit financial suicide.

Best of luck to you.

[106206 15]

Bob thanks for the reply. That is a very interesting point you raise. A quick google search came up with http://uslegalvisa.blogspot.com/2008/12/cheshire-v-cheshire-i-864-affidavit-of.html which shows what you describe in action...they were married 4 years, the state did not award alimony, and the guy ended up having to pay in full until the conditions terminating the sponsorship were met.

I'm not outside thinking of the worst case scenario...

Per my earlier post the most "likely" worst case scenario is one where we have kids unplanned. That would more expensive for me then 125% poverty level alimony.

So if I get what you're saying, someone could go through the process originally described, get permanent resident status, then divorce, and lawfully be entitled to 125% over the poverty line from the other party...?

What makes me wonder is if all approaches open up the same risk, i.e. they all require sponsorship.

So let me clear something up for you, in regard to the "unwinding" of the citizenship issue if your marriage fails within the 2-year time period.

Not so. Nope. Nada. No!...

[Little_My 464]

Yes, all options that include her applying for an LPR status on the basis of a marriage to a USC (or coming here with a fiance visa) include submitting the affidavit of support.

The only options that would not include a USC sponsor would be a non-immigrant visa, such as F1 student (though she will have to show finances for that one as well, but on her own) or a work visa, which are fairly hard to get.

Edited May 3, 2011 by Little_My

[Monday Jones 6]

Just a little bit of my experience: I am a USC who married a man who overstayed an F1 by ten years after only knowing each other for five months. He got his green card with no problems.

I will do prenup again which is not 100% but it does largely hedge me against financial risks.

I am not a lawyer and this is not legal advice. Who will represent your lady when she can't afford it for the prenup? You may know that prenups can be invalidated when one party doesn't have the money for representation (but you can give her this money).

I am pretty hands-on with this kind of stuff (sadly, I did my own divorce filings for about $550) but given the need to get things right the first time. I am wondering if an attorney is the right approach for us, perhaps to guide me down the right path and if I want to file the forms myself I can do so.

I did all the divorce paperwork for my first marriage, and I did all the paperwork for the AOS for my new husband. The AOS took more time, and there are a few questions that everyone seems to have trouble answering. I don't think you need a lawyer to fill out the paperwork if you are fine with doing that yourself. Your lawyer could advise you on the best approach to improve your chances of getting approved the first time.

During our interview, the IO asked who had done the paperwork. It seemed to be a bonus that I did it all by myself.

Beyond the legal ramifications, the concept of dating someone for an extended period on this situation seems fruitless.

For example...

1. No legal right to drive = no car = no job = no money = no independence.
   
2. She has a university degree and had a successful career back home. Now she is cleaning toilets for housewives on Prozac who spend all day on Facebook (no offense to anyone fitting the description)
   
3. The lack of freedom and the lack of independence takes an emotional toll on her for obvious reasons.
   
4. Of course she could just get a car, start working under the table, get her own place, etc. but that all presents a risk of being deported and is illegal.
   

If she is your wife in the US waiting for a green card, the above will still apply. Can you support her for several months? Do you want to?

It seems to me that your best chance for approval is to wait as long as possible before submitting the AOS/CR1/K1 application.

For example, if she stays here and you marry. You can take pictures of your times together. Have her meet your family (ideally with more pictures). Work out how to open a bank account together (by an ITN for example). Get a lease together (my husband and I got an apartment together even though he showed his social security card that said "Not authorized for work"). Add a cell phone for her on your account. These take time, and a bit of money.

Yet.

All these show your commitment to each other, yet open up risk to you. And you seem a bit risk-adverse (nothing wrong with that- seems perfectly natural from a recently divorced man!).

I had all the above for my husband. We filed half a year after we married, and by the time the interview came around, I could show he was on my health insurance, that we had car insurance together, that he was the beneficiary to my life insurance, etc.

Does she have a drivers license for her home country? That would be valid here (like California, for example).

You don't mention how similar your backgrounds are. It is a bit more of a red flag if there are big age gaps and cultural differences.

All of our interactions have been great. I can honestly say that she and I fell into each other by chance, it is not something that either of us sought out.

That is great. Do you love her? Do you know if you love her? You seem to like her enough to want to help her out. Great. But the best chance of success will take time, and I think time is what you need to learn more about this woman. If you spend the rest of your lives together, a few months at the beginning will feel like nothing. They may even feel charming when you reminisce about it later.

[106206 15]

Who will represent your lady when she can't afford it for the prenup? You may know that prenups can be invalidated when one party doesn't have the money for representation (but you can give her this money).

I would have Prenup drafted in english & spanish (her native language), and she would chose her own attorney who is fluent in spanish or has a translator.

If she is your wife in the US waiting for a green card, the above will still apply. Can you support her for several months? Do you want to?

Yes I can support her and have no problem doing so for 1-2 years until she gets her feet on ground, working making a decent wage, etc.

Regarding rights, liberties, etc. during interim process, that is an area I'm looking into (this website, attorney, etc.)

It seems to me that your best chance for approval is to wait as long as possible before submitting the AOS/CR1/K1 application.

For example, if she stays here and you marry. You can take pictures of your times together. Have her meet your family (ideally with more pictures). Work out how to open a bank account together (by an ITN for example). Get a lease together (my husband and I got an apartment together even though he showed his social security card that said "Not authorized for work"). Add a cell phone for her on your account. These take time, and a bit of money.

I am hinging a large premise on the concept of something needing to 'happen' before she is +180 days overstay, assuming she does not 'sneak' out of the US, it would get flagged, and the 3 year ban kicks in. Again I need legal advice from attorney as this may not be the problem I perceive it to be.

Our time together has been quite well documented i.e. photos, friends in common, places we have been, etc. I am not sure how to open a bank account with a foreign national but I'm sure it's something I can figure out. I own my condo with mortgage & title in my name only, and it will stay that way. Cell phone that is easy enough as well. These are all small things and relative to the larger investment of time & risks associated they are really not an issue.

All these show your commitment to each other, yet open up risk to you. And you seem a bit risk-adverse (nothing wrong with that- seems perfectly natural from a recently divorced man!).

I am not afraid of risk but I like to cover my bases when I can.

Does she have a drivers license for her home country? That would be valid here (like California, for example).

She has a Venezuela driver's license and that is another area of perception. She believes she cannot drive here on that license largely because of the fact that if she gets pulled over, she will be scooped up and deported. A recent state law change here makes that a practical reality now. She has a general perception that the police can and will just walk up to her at any time, demand her papers, and then ship her off. I asked her to come to my hometown up north, and she said "too many ICE agents, my aunt's friend got picked up in CO", etc. etc. I think her fears are fueled by many half-true third-hand stories and perhaps a couple real ones. Also living in Venzeula gives her a perception of what a government's reach is.

You don't mention how similar your backgrounds are. It is a bit more of a red flag if there are big age gaps and cultural differences.

I am 38, born American & of Italian descent (i.e. family still in Italy and I go visit them sometimes). She is 26, born Venezuela to an Italian dad. Culturally we are very similar, we have Italian culture in common. Her English is conversational at best, as is my Spanish, but we both speak Italian and use that 95% of time. Not sure if that shows a cultural connection per se. We have tons of messages back & forth showing us communicating i.e. SMS.

That is great. Do you love her? Do you know if you love her? You seem to like her enough to want to help her out. Great. But the best chance of success will take time, and I think time is what you need to learn more about this woman. If you spend the rest of your lives together, a few months at the beginning will feel like nothing. They may even feel charming when you reminisce about it later.

Yes I do love her. Ideally I'd want to date for about a year or so, live together for 2-3 months before deciding to get married. That's not part of the program here though it seems given the legal status. So I can decide to cut bait or move forward. It's not about finding any girl for me this girl really has a lot of fantastic qualities that I appreciate and vice versa. If I could choose when I met her, I'd make it 3 months from now, not 3 months ago, but I can't change that.

All above said - I thought more about things and considered the advise I got from this post. My thought was OK if we have I choose to compress things, she can move in, we can try to have a normal life for a couple months and if it works the way I expect then we will be great then let's go get married and file before the 180 day overstay. If not then that's another discussion.

Well that did not go over so hot to put it mildly. Part of it is cultural (one who gets milk for free never buys the cow), part is assumptions that being married will give her a bunch of rights (again the attorney can set us straight), and lastly an overarching fear that I'll ditch her after couple of months of the live-in arrangement. When she was 20 she was engaged to an Italian, moved there, and he basically did just that.

I countered it with the argument that you have to take some risk on, just like me. You say you don't want to be stranded in my condo all day, I say I'll get you a car and you just get in and drive it with your Venezuelan license, and if you get picked up then so be it. Or take the train, or the bus. Or I'll drive you. It's not forever we're talking about here. This is less about the immigration thing I believe, it has to do with culture and its pretty clear she has insecurity issues beyond immigration, probably her experiences with the Italian and her age. If I can live with that is a decision that has nothing to do with immigration....!

Closing thoughts:

1. We need to cool any discussion about marriage & immigration logistics until we see attorney next week. Too many facts & speculation going on.

2. Once we have the facts on the legality and any key issues re: timing, we can step back and think about things.

3. Living together isn't a valid option. But I didn't get to this place because we lived together. But time is good. So we take say a couple of months to continue forward dating before deciding that marriage is the right call. We might actually have fun instead of obsessing about paperwork and immigration

4. At some point some relationship coaching might be a good idea.

Thanks again for all of the advise...

Edited May 4, 2011 by caterino

[milimelo 4,541]

I am confused with this

... and has never worked here...

and this:

She lives with her aunt for free which is in exchange of her working 5 days a week doing house cleaning.

This is working, no matter what you choose to call it.

[missaero 7]

Honestly,the line

My thought was OK if we have I choose to compress things, she can move in, we can try to have a normal life for a couple months and if it works the way I expect then we will be great then let's go get married and file before the 180 day overstay. If not then that's another discussion.

Well that did not go over so hot to put it mildly.

screamed red flag to me that she may (not trying to offend) be using you for immigration benefit. If her Aunt is as overbearing as you say, I would want to get out of that situation ASAP and have a better, more "free" life with you. For her to throw a hissy fit about such a suggestion, really made me suspicious, you know?

You say you love the woman, and to be in love is great! But be super careful here, you absolutely want to protect yourself. Most of the rest of the replies on this board also suggest careful treading is needed ahead.

[106206 15]

This is working, no matter what you choose to call it.

She has never worked in the sense of a job that pays in cash.

Working with her aunt has been in exchange for room/board, food, etc.

Perhaps that would be legally construed as 'working'?

Honestly,the line screamed red flag to me that she may (not trying to offend) be using you for immigration benefit. If her Aunt is as overbearing as you say, I would want to get out of that situation ASAP and have a better, more "free" life with you. For her to throw a hissy fit about such a suggestion, really made me suspicious, you know?

No offense taken at all...anything is possible.

Her negative reaction to my proposal left me with:

She sees things in a very binary manner.

I laid down something that did not align with her ideas, and she puked all over it and got all fired up.

I don't get the sense that in her culture back home they don't have a critical dialogue but instead have a sort of a pissing match.

My thought is actually the opposite re: immigration benefit as PRIMARY driver. I would think if it was she would do whatever I asked her to do. Live here, there, etc. Unless of course she is out strictly for greencard & thinks I'm just jerking her around.

I'm a big fan of looking at the fruit & the tree...

1. Aunt #1 married an American working in Venezuela. He died in a car accident. Now she lives here and is dating another American.
   
2. Aunt #2 married a Cuban with citizen or PR status.
   
3. Her dad studied in America years ago and is a big fan of her coming here to settle down
   
4. Where she lives there is rampant poverty, and despite university degree and good job no chance to buy car and maybe no house.
   
5. She claims she has zero interest in Venezuelan men and has actually never dated one when she lived there.
   

So if I cut past a lot of the BS and circumstances I see it like this:

1. Obviously she wants to stay in America and regardless of America or otherwise, she wants to get married
   
2. We get along very well and have a chemistry and connection, and I think she is a sincere person
   
3. Sincere as she is, her judgment may likely be clouded by the legality issue
   
4. The discussion around marriage (right now) is because of the legality issue
   
5. To continue dating before commitment will flush out more details on compatibility. More time, more flushing out that will occur.
   

...to be in love is great! But be super careful here, you absolutely want to protect yourself.

Call me cynical but love also clouds judgment.

Edited May 4, 2011 by caterino