Visiting US after abandonment k1

[Deputy Purple 1,294]

Hey Bob 4 Anna, I don't think you understand how the k1 visa works. She did not overstay becos she married with the 90 days time frame for a k1 visa holder. She met the requirement for k1 visa. So it will be appropriate for her to apply for spouse visa before she enters the USA becos she is married now.

Globe-trotter, me thinks the don't understand shoe is on the other foot...

I'm not going to type the same info 200 times, re-read my posts.

Regardless of what Visa you enter the US on, once the I-94 expires you are out of status and begin accruing unlawful presence unless you either adjust status or entered on an immigrant Visa (which the K-1 isn't) and were issued a Greencard (obtained LPR Status) upon entry.

The overstay isn't a problem when adjusting status as the spouse of a US Citizen.

Meeting the marriage requirement doesn't prevent the unlawful presence, it just allows the K-1 entrant to Adjust Status based on the K-1 entry.

You must have legally entered the US in order to adjust status in country and the K-1 entry as 2 limitations to this:

1) You can only adjust based on marriage to the original K-1 petitioner.

2) You can only adjust based on the K-1 if you married within the 90 days of the I-94.

So a K-1 can marry the petitioner within the 90 days and AoS 2 year later...

or

Marry the original petitioner after the 90 days and AoS if they also file an I-130 petition with the I-485.

They can't marry someone other than the K-1 petitioner and AoS as the K-1 entry is only considered a legal entry for AoS if the marriage is to the original K-1 petitioner.

[Globe-trotter 3]

I don't want a spouse visa, i want a tourist visa.

Okay, maybe you might qualify for VISA WAIVER a an european, am to sure though. All the best.

[Deputy Purple 1,294]

Okay, maybe you might qualify for VISA WAIVER a an european, am to sure though. All the best.

No she doesn't...

By remaining in the US beyond the validity of her I-94 (which is issued for all non-immigrant entries) she overstayed and therefore no longer qualifies for VWP.

She needs to apply for a B Class Visa and request a waiver at the interview.

Edited April 2, 2012 by Bob 4 Anna

[Globe-trotter 3]

Globe-trotter, me thinks the don't understand shoe is on the other foot...

I'm not going to type the same info 200 times, re-read my posts.

Regardless of what Visa you enter the US on, once the I-94 expires you are out of status and begin accruing unlawful presence unless you either adjust status or entered on an immigrant Visa (which the K-1 isn't) and were issued a Greencard (obtained LPR Status) upon entry.

The overstay isn't a problem when adjusting status as the spouse of a US Citizen.

Meeting the marriage requirement doesn't prevent the unlawful presence, it just allows the K-1 entrant to Adjust Status based on the K-1 entry.

You must have legally entered the US in order to adjust status in country and the K-1 entry as 2 limitations to this:

1) You can only adjust based on marriage to the original K-1 petitioner.

2) You can only adjust based on the K-1 if you married within the 90 days of the I-94.

So a K-1 can marry the petitioner within the 90 days and AoS 2 year later...

or

Marry the original petitioner after the 90 days and AoS if they also file an I-130 petition with the I-485.

They can't marry someone other than the K-1 petitioner and AoS as the K-1 entry is only considered a legal entry for AoS if the marriage is to the original K-1 petitioner.

Hey Mr Bob 4 Anna, I think we are saying the same here.

[Deputy Purple 1,294]

Hey Mr Bob 4 Anna, I think we are saying the same here.

No we are not.

You are saying if a K-1 entrant married within the 90 days then they never accrue unlawful presence.

The truth (and what I'm saying) is that the K-1 entrant will accrue unlawful presence if they don't file to AoS within the 90 days. This is almost never a problem though because the overstay is not an issue once they do AoS as the spouse of a US Citizen.

If the K-1 entrant leaves the US after accruing unlawful presence without have filed AoS (and receiving Advance Parole to prevent them from abandoning their AoS Application) then they are subject to the same bans as someone who overstays any other Visa.

PS: Please note that Advance Parole protect you if your overstay triggers a ban.

Edited April 2, 2012 by Bob 4 Anna

[Harpa Timsah 13,258]

Bob is correct. There are several factors at play here, and the OP and others are getting them all confused. Let me try.

A K-1 visa is a non-immigrant visa. A K-1 entrant is given 90 days of legal presence at POE. They need to marry within that 90 days, that is true, but getting married by itself does not extend the 90 days of authorized stay. Each day thereafter is OVERSTAY. Those days are illegal presence, just like anyone else.

Now, overstay is irrelevant/forgiven for spouses of US Citizens who adjust in-country. Therefore, if the OP had applied for AOS and gotten it approved, then the overstay would be basically erased. This is the scenario that the K-1 is designed for.

The OP did not follow through on the second big step of the K-1 visa, Adjusting Status. She left the country without adjusting status. That means that every day she stayed over the 90 original K-1 days are overstay days. It sounds like she was here 11 months after that, so she has a 3 year ban.

A person from a VWP country becomes ineligible to use the VWP if the person has overstayed any previous visa or VWP entrance. The OP overstayed, so is no longer eligible for the VWP - for life.

The OP needs to be chasing down a B2 visa to visit. Whether or not the consulate will allow a non-immigrant waiver is the matter at hand.

[DeniseBill 4]

Well thank for the information guys.

[Enigma11561 336]

Bob is correct. There are several factors at play here, and the OP and others are getting them all confused. Let me try.

A K-1 visa is a non-immigrant visa. A K-1 entrant is given 90 days of legal presence at POE. They need to marry within that 90 days, that is true, but getting married by itself does not extend the 90 days of authorized stay. Each day thereafter is OVERSTAY. Those days are illegal presence, just like anyone else.

Now, overstay is irrelevant/forgiven for spouses of US Citizens who adjust in-country. Therefore, if the OP had applied for AOS and gotten it approved, then the overstay would be basically erased. This is the scenario that the K-1 is designed for.

The OP did not follow through on the second big step of the K-1 visa, Adjusting Status. She left the country without adjusting status. That means that every day she stayed over the 90 original K-1 days are overstay days. It sounds like she was here 11 months after that, so she has a 3 year ban.

A person from a VWP country becomes ineligible to use the VWP if the person has overstayed any previous visa or VWP entrance. The OP overstayed, so is no longer eligible for the VWP - for life.

The OP needs to be chasing down a B2 visa to visit. Whether or not the consulate will allow a non-immigrant waiver is the matter at hand.

I was getting a little confused with the explanations myself, and I know the deal. Thanks for the edification Harpa.

[Darnell 8,478]

I either don't understand you or you don't understand me. We did marry before the I-94 expired. But we didn't adjust status because we didn't have enough money cuz I got sick. And then we decided it was better for me to go back to Holland. I just want to know if I can go to US to visit my husband

When AOS is granted, the overstay between the I-94 expiration date and the date of casefile adjudication is FORGIVEN.

Since you not file for AOS, you had about 9 months of overstay past the expiration date on the I-94.

Since you are in a VWP country, hit the website, apply for ESTA, and see what happens.

If unlawful presence is not an issue, yer ESTA will be 'granted' and you can come in on the VWP.

Good Luck !

[Harsh_77 718]

Okay, maybe you might qualify for VISA WAIVER a an european, am to sure though. All the best.

Nope would not qualify for VWP, if you wanna u can try be prepared to be turned away from airport.

Bob has been correct so far in his post K1 lets one enter US and has to get married within 90 days and file for AOS.

In OP's case she did part one correctly, but seems she was under impression she only has to do AOS if she wants to work, which is not true.

She did aquire overstay and VWP and I am thinking even B1/2 would be rejected with USC spouse.

Only option she has is file for CR1 - Where her overstay would be forgiven.

[R&RM 11]

I just want to go there on a tourist visa. I don't want to stay there and I have ties. I just want to know if i won't get denied entry at the airport and have a bunch of money wasted on a planeticket because i have a ban

Is there any reason why he can't come to you? Sounds like it would be a lot less complicated then maybe you can file the spousal visa so that in the future you can be together more permanently if you choose to go that route. Just an alternative solution. I realize though of course maybe there are other factors at play that necessitate you to go.

In my opinion, everyone here is guessing what might happening, yes, some of them are very educated guesses but they are guesses, no one knows with 100 percent certainty what's going to happen when you attempt to enter the US under these circumstances, they are just doing their best to give you a good guess. So yes, there is a risk that you will be denied entrance and if you choose to take it then you might incur the loss of money spent on a plane ticket, the risk may be low or the risk may be high but the risk is real.

[DeniseBill 4]

My husband has been here for 3 months. No problem but he made some mistakes and got some debt. He needs to work to pay it off which will take up to a year. Since we can't put the monthly debt payment on hold for a while, I was hoping to go there for a couple months. A year and 7 months without my husband is just too long. :)If he comes here he will also lose his job and won't have a job when going back.

We called the USCIS and they said usually it doesn't mean overstay but to be sure we need to contact the Department of State or the embassy in my country. Which we are going to do today. Let's hope I'll be fine. Thanks for the information ^^

[bigdog 376]

I guess if you apply for what you want, tell the truth and you will see what happens. Married living apart and returning for visit only seems like a problem to me.

[Deputy Purple 1,294]

We called the USCIS and they said usually it doesn't mean overstay but to be sure we need to contact the Department of State or the embassy in my country. Which we are going to do today. Let's hope I'll be fine. Thanks for the information ^^

You called the USCIS "Mis-Information" Line, don't trust them even if they tell you the Earth revolves around the sun they barely know how many shoes to put on in the morning.

You will need to demonstrate strong ties to your home country to overcome the presumption of Immigrant Intent. That presumption is strengthened by:

1) You have a US Citizen Spouse which makes you eligible to AOS in country if you enter on a tourist Visa.

2) You previously obtained and used a Visa that allowed for Immigrant Intent and remained in the US beyond your authorized stay.

Is there a reason why your husband couldn't immigrate to your country and work to make money there?

[jaycali 415]

Is there a reason why your husband couldn't immigrate to your country and work to make money there?

The OP stated he's working to pay off debt before he moves permanently to the Netherlands.

I'm assuming language barrier prevents him from getting a job in the Netherlands any time soon.