K1 Visa please help!!

[vonna 0]

Hi everyone,

I'm a USC and my wife is overstayed with k1 visa for 4 years. She didn't do any paper work with the OP. I have talk to couple immigration lawyer and both have different direction one of them said that there is no way she can adjust her status and the other said first we have to go to the immigration judge to get the voluntary departure then leave U.S and do the whole petition process from beginning. Since my wife have overstayed she will be ban 10 years from enter U.S but he will come up with the hardship because we have a one child and I'm not sure if this is work out like he said. Any suggestion would greatly appreciate.

Thanks

[Tim/Mav 305]

For clarification to members, she entered on a K-1 Visa 4 years ago. Did you get legally married in the 90 day limit ? Thats question one.

That may help us understand better.

[Moomin 292]

I reckon the wife did not marry the original petitioner of the K1(OP=Original Petitioner), then stayed in the US for 4 years without filing AOS and now married to vonna. If that's the case, then that's the reason for K1s not allowed to adjust their status based on marriage to anyone else since the K1 visa is sometimes being used for a "get to the US one way or the other". No disrespect to your wife, just clarifying why it is so.

Did your wife and the original petitioner ever get married, and how long after she arrived did they split up?

The hardship has to be on you, not her since you're the USC.

OP is normally being used as short for Original Poster. That would be you so is might cause a confusion

[vonna 0]

For clarification to members, she entered on a K-1 Visa 4 years ago. Did you get legally married in the 90 day limit ? Thats question one.

That may help us understand better.

No she didn't get marry with the OP and she didn't do any kind of paper work when she enter U.S

[Tim/Mav 305]

No she didn't get marry with the OP and she didn't do any kind of paper work when she enter U.S

I see. That clarifies alright. Amazing how it was never detected by authorities earlier. But, thats the US. OR did the Authorities already detect it ? Probably so. Generally, an Immigrants Passport has a valid date of 5 years. If it is exspired she can't leave without a little help from ICE/USCIS. I have to agree with the Attorney that stated a 10 year or lifetime ban for purposely commiting fraud but I'm not an a Attorney. Funny how the USC went along with it and will never be punished for his involvement. Another reason why USCIS is always suspecting Fraud and innocent people pay the price.

I hope it all works out but this case is COMPLICATED.

Best of Luck and I hope for the best.

[JimVaPhuong 4,863]

Is she already in removal proceedings? If not then she doesn't need to see an immigration judge, and she doesn't need to ask for voluntary departure. She doesn't need anyone's permission to leave the US.

She will need an I-601 hardship waiver before she's going to get a visa because she's going to incur a 10 year ban because of the overstay. I suspect the previous K1 petition is going to be a very hot topic of discussion at the next visa interview.

Did she know you before she came to the US with a K1 visa? If so then that could have very serious implications on her ever getting an immigrant visa. They would likely conclude the K1 was obtained by fraud.

[Penguin_ie 5,993]

Both the attorneys were correct, somewhat:

- she cannot adjust status inside the USA.

- She needs to leave, then you petition for a visa, which will be denied for overstay, and a waiver needs submitted.

[vonna 0]

Both the attorneys were correct, somewhat:

- she cannot adjust status inside the USA.

- She needs to leave, then you petition for a visa, which will be denied for overstay, and a waiver needs submitted.

What are the chance of the hardship waiver approve?

[Penguin_ie 5,993]

That depends on your individual case. Hardship waivers are difficult, but not impossible, especially with a USC child.

[canadian_wife 1,822]

What are the chance of the hardship waiver approve?

You certainly do not want to attempt a hardship waiver alone, it is much more than simply filling out a form. It is an entire packet with evidence. Hire a lawyer for that.

Your wife needs to leave. This will be a long process.

good luck

[vonna 0]

Is she already in removal proceedings? If not then she doesn't need to see an immigration judge, and she doesn't need to ask for voluntary departure. She doesn't need anyone's permission to leave the US.

She will need an I-601 hardship waiver before she's going to get a visa because she's going to incur a 10 year ban because of the overstay. I suspect the previous K1 petition is going to be a very hot topic of discussion at the next visa interview.

Did she know you before she came to the US with a K1 visa? If so then that could have very serious implications on her ever getting an immigrant visa. They would likely conclude the K1 was obtained by fraud.

She is not in removal proceed. And i dont think she can get a visa through a embassy because she is out of status. I don't her until she stayed here 2 years later.

[Penguin_ie 5,993]

i dont think she can get a visa through a embassy because she is out of status. I don't her until she stayed here 2 years later.

That is why Jim and others said she needs a waiver before a visa can be issued. Basically, you will go through the usual visa process, she gets denied at the initial visa interview due to overstay, then you file the waiver.

[vonna 0]

That is why Jim and others said she needs a waiver before a visa can be issued. Basically, you will go through the usual visa process, she gets denied at the initial visa interview due to overstay, then you file the waiver.

what you saying here that she need to leave U.S now with out the voluntary departure and start the process again in her country?

[belinda63 3,038]

If your wife wants to obtain legal status in the US she will have to leave the US and you will file a petition for a spousal immigrant visa (CR-1). When the petition is approved it will be sent to the embassy in the country she is residing and she will have to complete the remainder of the process, medical, paperwork, interview, etc. At the interview her application for a visa will be denied due to her ban for the overstay. You will have the opportunity to file a 601 waiver to have the ban waived and her issued an immigrant visa to return to the US. The waiver packet needs to show why it is a hardship on you, the US citizen, for her to not be permitted to live in the US.

A K-1 visa has built in fraud prevention. A person who arrives in the US on a K-1 visa can ONLY adjust status based upon marriage to the person who petitioned them. This is to prevent them for suckering someone into obtaining the visa for them to come here and then leaving them and living their life otherwise.

Your wife will have to leave the country at some point to obtain an immigrant visa.

Edited December 14, 2011 by belinda63

[vonna 0]

If your wife wants to obtain legal status in the US she will have to leave the US and you will file a petition for a spousal immigrant visa (CR-1). When the petition is approved it will be sent to the embassy in the country she is residing and she will have to complete the remainder of the process, medical, paperwork, interview, etc. At the interview her application for a visa will be denied due to her ban for the overstay. You will have the opportunity to file a 601 waiver to have the ban waived and her issued an immigrant visa to return to the US. The waiver packet needs to show why it is a hardship on you, the US citizen, for her to not be permitted to live in the US.

A K-1 visa has built in fraud prevention. A person who arrives in the US on a K-1 visa can ONLY adjust status based upon marriage to the person who petitioned them. This is to prevent them for suckering someone into obtaining the visa for them to come here and then leaving them and living their life otherwise.

Your wife will have to leave the country at some point to obtain an immigrant visa.

with your experienced what you take on this chance of adjust her status or not?