Question regarding status

[bobbaggio 0]

I was in america from november 2007 until march 2011 and was out of status for most of that. I had to come home for family reasons but had been planning on marrying my fiancé before I left. I don't know if I have a ban and was wondering how I found out if I do. My fiancé has been back here to my home country three times in the last year and I was wondering when we do get married, can I go back to America or will we have to live outside of the US until my ban is up? As it is obviously a legitimate relationship and our lives are in America, this is where we want to live? Does the K-1 visa work for this situation or will my ban still stand. I never had any problems with the law in America and left voluntarily but was not told of a ban when I was leaving? Any help is really appreciated.....

[Oksana & Max 94]

Ok I hate to bring you the bad news but you have a 10 year ban.

The K-1 visa doesn't really work around those situations. You will need to apply for a waiver, which is really hard to get, as you will need to show the proof of hardship to you or your family. Since you are not married, it will be almost impossible to do.

Unfortunately there is no easy way around it. You may want to consider your fiance moving to your country till the time your ban is over, and then try to file the paperwork.

[jaycali 415]

I was in america from november 2007 until march 2011 and was out of status for most of that. I had to come home for family reasons but had been planning on marrying my fiancé before I left. I don't know if I have a ban and was wondering how I found out if I do. My fiancé has been back here to my home country three times in the last year and I was wondering when we do get married, can I go back to America or will we have to live outside of the US until my ban is up? As it is obviously a legitimate relationship and our lives are in America, this is where we want to live? Does the K-1 visa work for this situation or will my ban still stand. I never had any problems with the law in America and left voluntarily but was not told of a ban when I was leaving? Any help is really appreciated.....

What visa were you on? Unless your I-94 said "D/S" (normal for F-1 student visas), you triggered a 10 year bar from entry when you left the US since you overstayed for more than one year. This is not forgiven to spouses of US citizens, but there is a waiver called I-601. To have a chance of getting the bar waived your husband will have to prove "extreme hardship" to himself, and argue why he absolutely cannot move to your country.

Edited May 8, 2012 by jaejayC

[Worried2012 1]

I was in america from november 2007 until march 2011 and was out of status for most of that. I had to come home for family reasons but had been planning on marrying my fiancé before I left. I don't know if I have a ban and was wondering how I found out if I do. My fiancé has been back here to my home country three times in the last year and I was wondering when we do get married, can I go back to America or will we have to live outside of the US until my ban is up? As it is obviously a legitimate relationship and our lives are in America, this is where we want to live? Does the K-1 visa work for this situation or will my ban still stand. I never had any problems with the law in America and left voluntarily but was not told of a ban when I was leaving? Any help is really appreciated.....

It really depends on what visa you had- if it was the tourist- yes 10 year ban but if you have F1 or student it is 7 or something like that and you must show that you really did it well there as a student (grades/transcript etc) and the legal reason why you overstayed.

[me&him 2]

Well depend on the visa that u overstayed. if it was a student visa and u went out of status then u dont accure any UNLAWFUL PRESENCE until an Immigration Judge decide that u were out of status no matter how long u were out of status. So if u provide more information regarding the type of visa u can get more help from VJ.

[Worried2012 1]

Well depend on the visa that u overstayed. if it was a student visa and u went out of status then u dont accure any UNLAWFUL PRESENCE until an Immigration Judge decide that u were out of status no matter how long u were out of status. So if u provide more information regarding the type of visa u can get more help from VJ.

I quite agree with you- just don't say in the application that you stayed there illegally- F1 usually have more leeways but show your achievements and letters from prof etc.. this is if you were an F1

[jaycali 415]

It really depends on what visa you had- if it was the tourist- yes 10 year ban but if you have F1 or student it is 7 or something like that and you must show that you really did it well there as a student (grades/transcript etc) and the legal reason why you overstayed.

Students with "D/S" in their I-94 do not accrue unlawful presence until an immigration judge decides the student is out of status. But this is really only relevant if the OP was on F-1 anyway.

In the IV application, you have to check either "yes" or "no" to unlawful presence in excess of 180 days. If you check "yes" there's a 3/10 year bar. If you check "no" they'll find out anyway and there's likely lifetime bar for misrepresentation.

Edited May 8, 2012 by jaejayC

[Delta5 9]

I am sorry to say that it does not matter if the OP was on a B1/B2, F1, J1 or other non immigrant visa. An immigration judge is also no longer relevant in this matter. The OP is already back in his/her home country. The overstay has already automatically been triggered. He/she has to do a consular processing at the home country. OP has to deal with consular officer not an immigration judge on this case. Consular processing is vastly different from AOS inside the US, especially when someone overstayed for more than a year. The petitioner of the K1 and not the K1 beneficiary has to file for the waiver and the petition has to be denied first before the waiver can be file. Again, as was already pointed out it is also very difficult (not impossible) to overcome such waiver.

[me&him 2]

The OP is asking if he has a ban, so it does matter on the kind of visa he had like previously mentioned that F1 has more leeway and how the unlawful presence is determined. OP is back in his/her country but its the unlawful presence that triggers the ban. So though he/ she stayed over more than a year does not necessary mean that unlawful pesence was accured, so its important to know the type of visa OP overstayed. Also K1 cannot file waivers since its only for spouse of USC and not Fiance.

[Worried2012 1]

The OP is asking if he has a ban, so it does matter on the kind of visa he had like previously mentioned that F1 has more leeway and how the unlawful presence is determined. OP is back in his/her country but its the unlawful presence that triggers the ban. So though he/ she stayed over more than a year does not necessary mean that unlawful pesence was accured, so its important to know the type of visa OP overstayed. Also K1 cannot file waivers since its only for spouse of USC and not Fiance.

If F1 -I went over the immigration application- there is no question whether you stayed illegally or not- the question is if you are deported. Then the answer there is no... then if the immig officer asked you what you did- trainings here and there show certificates- even you overstayed for ten years or more there is a possibility that your visa will be granted...

[me&him 2]

Well if u overstayed for more than one year and had voluntary departure then there would be a 10 year ban. U can not file any kind of waiver on fiance visa. So if u got a ban then ur visa will not be granted till u serves thd ban.

[Delta5 9]

I'm sorry but I have never heard of a provision that somebody on a student visa can indefinitely overstay w/o jeopardizing his legal presence, especially for more than a year or two, unless they do an AOS (example marriage to a USC)) or adjusting to other permissible visa, of which on the OP's own statement and I quote "was out of status for most of that" unquote, from 2007 til 2011 time frame .... assuming he is on a student visa of which the OP is the only one who can verify his real status. I could be wrong, but I doubt he was on a student visa based on his posted statement. OP has clearly ADMITTED that he was already out of status and violated for several years his legal presence. So knowing his non immigrant status is really not important (although knowing it will be nice). Furthermore .... the 3/10 inadmissibility bar are applied equally (Yes, including those who violated the overstay policy under the student visa) ONCE the overstay visa holder LEFT the country. Again, a consular officer will not allow him to get back until his ban is served. He already admitted he overstayed his presence for 2 to 3 more years. No rule on the so called student visa exception can justify that at the consular office.

The 3/10 years inadmissibility bar does not make any exception to a student visa according to the INA Section 212(A)9)(B) once you violated the said rule. Here is a short and easy version of said INA rule from the Link ..... www.interconlaw.com/bar.htm .... unless you prefer reading from the very long version on the INA section 212.

Yes, a K-1 petitioner can file the 601 waiver with special instruction. Its not exclusively only for USC spouse. Again, it is very difficult to get approved on the said waiver but not totally impossible. Here's some websites for more info... www.uscis.gov/files/forum/I-601instr.pdf and another short version from the family base immigration .com ... just for some added information.

[Worried2012 1]

I'm sorry but I have never heard of a provision that somebody on a student visa can indefinitely overstay w/o jeopardizing his legal presence, especially for more than a year or two, unless they do an AOS (example marriage to a USC)) or adjusting to other permissible visa, of which on the OP's own statement and I quote "was out of status for most of that" unquote, from 2007 til 2011 time frame .... assuming he is on a student visa of which the OP is the only one who can verify his real status. I could be wrong, but I doubt he was on a student visa based on his posted statement. OP has clearly ADMITTED that he was already out of status and violated for several years his legal presence. So knowing his non immigrant status is really not important (although knowing it will be nice). Furthermore .... the 3/10 inadmissibility bar are applied equally (Yes, including those who violated the overstay policy under the student visa) ONCE the overstay visa holder LEFT the country. Again, a consular officer will not allow him to get back until his ban is served. He already admitted he overstayed his presence for 2 to 3 more years. No rule on the so called student visa exception can justify that at the consular office.

The 3/10 years inadmissibility bar does not make any exception to a student visa according to the INA Section 212(A)9)(B) once you violated the said rule. Here is a short and easy version of said INA rule from the Link ..... www.interconlaw.com/bar.htm .... unless you prefer reading from the very long version on the INA section 212.

Yes, a K-1 petitioner can file the 601 waiver with special instruction. Its not exclusively only for USC spouse. Again, it is very difficult to get approved on the said waiver but not totally impossible. Here's some websites for more info... www.uscis.gov/files/forum/I-601instr.pdf and another short version from the family base immigration .com ... just for some added information.

I think this could be answered by an F1 who overstayed for years went home but was able to get a visa (immig or non immigrant) after 2, 3, 4 , 5 or 6 years without complying with the ten year/3 year??? bar. F1 sometimes has some exception (read the lawyers article on this online it implies- not as strict as when a B1/B2 overstayed) - it depends with your interview in the embassy and the documents you have.

Edited May 9, 2012 by Worried2012

[me&him 2]

I think this could be answered by an F1 who overstayed for years went home but was able to get a visa (immig or non immigrant) after 2, 3, 4 , 5 or 6 years without complying with the ten year/3 year??? bar. F1 sometimes has some exception (read the lawyers article on this online it implies- not as strict as when a B1/B2 overstayed) - it depends with your interview in the embassy and the documents you have.

Well iam speaking from somewhat an experience. My fiance was here on F1 but he stopped going to school from 2004 to 2006. Well that put him OUT OF STATUS for two years. His scool reported him and he was picked up by ICE. He saw an Immigration Judge who in 11/06 determined that he was out of statues. He left on voluntary departure on 09/07. So he accured unlawful presence from 11/06 till 09/07, which is 10 months and not from 2004 till he left. Since he overstayed less than a year his ban was for 3 year, which was over in 09/2010. We recently had an interview and CO wanted us to provide him with court documents showing lenght of his overstay and to confirm that it was less than a year and the ban is over so the visa can be issued. So for F1 visa u dont accure any Unlawful presence until an Immigration Judge or USCIS determin u to be out of statues. F1 visa is for duration of stay so u cant overstay the visa but u can go out of status. CO advised us that once we sumbit the documents the visa can be issued.

[Worried2012 1]

Well iam speaking from somewhat an experience. My fiance was here on F1 but he stopped going to school from 2004 to 2006. Well that put him OUT OF STATUS for two years. His scool reported him and he was picked up by ICE. He saw an Immigration Judge who in 11/06 determined that he was out of statues. He left on voluntary departure on 09/07. So he accured unlawful presence from 11/06 till 09/07, which is 10 months and not from 2004 till he left. Since he overstayed less than a year his ban was for 3 year, which was over in 09/2010. We recently had an interview and CO wanted us to provide him with court documents showing lenght of his overstay and to confirm that it was less than a year and the ban is over so the visa can be issued. So for F1 visa u dont accure any Unlawful presence until an Immigration Judge or USCIS determin u to be out of statues. F1 visa is for duration of stay so u cant overstay the visa but u can go out of status. CO advised us that once we sumbit the documents the visa can be issued.

If this person was not reported and went home let us say after ten years out of status - there is no problem of applying for a visa again... but don't apply after you arrive - give yourself a rest of 1 to three years and show proof that what you did in the ten years (understood that you're in F1 ) in the USA that everything you did was school related... train in big univ., dept of health, etc.