Applying for K-1 with Previous Overstay

[lemont 0]

Before I begin I want to thank you ahead for your attention and help. I really admire the quality of the forumgoers here and while I have visited many times for information, this is my first time posting.

I am an Australian citizen very much in love with an American I met while living in the US a few years ago. I was young when I entered, barely 18, on a visa waiver on my own and overstayed in excess of the 180 days that would ordinarily incur a ten year ban. The ICE officer who managed my case reviewed my individual circumstances thoroughly and at his own discretion granted me a voluntary departure, rather than deportation, which means I would have zero repercussions against my standing with the US. I have maintained contact with him since, and he has advised me that my K-1 application should be unaffected by my vast indiscretion.

On paper the ICE officer has done me an amazing service by saving me from the ban, however I still overstayed massively and I can't help but feel that it should come back to bite me. I have done much Googling but can't find much in the way similar to my circumstances so I have come to you asking for help. I really want this to work out, my fiance traveling to Australia to be with me is not an option at the moment, he is signed into several years service with the US Navy, and on top of that I just plain don't want to take him away from the job he loves.

What can I expect?

Is there anything I should prepare for and how?

This is certainly a stain on the moral character they seek in applicants, is it enough to deny me?

THANK YOU for reading!

[NigeriaorBust 4,087]

It does not mean 0 repercussions. You have a ban but only need one wavier not 2. You need the waiver for the overstay ban but not the wavier for having been deported. Leaving triggered the ban, which you would have had anytime you left by yourself. If you have servered the ban ( how long was the overstay 180 - 1 year or over 1 year ) than you have no issues. Look into I601 waiver.

[lemont 0]

It does not mean 0 repercussions. You have a ban but only need one wavier not 2. You need the waiver for the overstay ban but not the wavier for having been deported. Leaving triggered the ban, which you would have had anytime you left by yourself. If you have servered the ban ( how long was the overstay 180 - 1 year or over 1 year ) than you have no issues. Look into I601 waiver.

Sorry I should have been clearer. In the words of the deportation officer, "You have no bar against you and you may apply for legal entry to the United States at any time." He has indicated that there is no ban, as granted to me by the issue of a administrative voluntary departure (ie. not deportation). Overstay was over one year.

Edited July 14, 2012 by lemont

[NigeriaorBust 4,087]

You overstayed 1 year. No immigration officer has the power to on his/her own remove the ban for overstay without you having an approved waiver. He allowed you to depart rather than deport , which they can do and is a different ban/waiver

[aleful 1,905]

Sorry I should have been clearer. In the words of the deportation officer, "You have no bar against you and you may apply for legal entry to the United States at any time." He has indicated that there is no ban, as granted to me by the issue of a administrative voluntary departure (ie. not deportation). Overstay was over one year.

ditto, you don't have a ban for deportation, that is different from a ban for overstay and will need to file the i601 waiver for overstay. staying over 1 year in the US gives you a 10 year ban. you will need a waiver to overcome the ban.

[JimVaPhuong 4,863]

Sorry I should have been clearer. In the words of the deportation officer, "You have no bar against you and you may apply for legal entry to the United States at any time." He has indicated that there is no ban, as granted to me by the issue of a administrative voluntary departure (ie. not deportation). Overstay was over one year.

Someone who has been deported is barred from applying for readmission to the US, usually for 10 years. Someone who overstays for more than 180 days is automatically barred from returning to US for 3 years, or 10 years if the overstay was more than one year. The overstay bar is imposed when the alien leaves the US. No immigration officer can preemptively waive either of these bars.

What the officer told you was technically correct. You weren't being deported, so there was no deportation bar. You hadn't left the US yet, so the overstay bar hadn't kicked in yet. You incurred a 10 year bar the day you left the US.

[lemont 0]

Thank you all for enlightening me.

So it would seem that I need to file an i-601. This would involve proving extreme hardship, which I believe I can do as he is an active serviceman and simply cannot pickup and leave. My last question, does anyone happen to know how long an i-601 takes to process... thank you...

[Mogambi 96]

Probably you need to talk to an immigration lawyer. Overstays and/or deportations are about the most serious violation that can hinder the K1 process. Don't mean to scare you, but you're going to need professional help on this one. You overstayed more than a year. That was a huge mistake, I know you were young. But yes, there are absolutely sure to be repercussions.

No matter what your immigration person said, it will be documented that you overstayed more than a year.

As others noted, voluntary departure is better than deportation, but both still have repercussions.

[JimVaPhuong 4,863]

Thank you all for enlightening me.

So it would seem that I need to file an i-601. This would involve proving extreme hardship, which I believe I can do as he is an active serviceman and simply cannot pickup and leave. My last question, does anyone happen to know how long an i-601 takes to process... thank you...

I agree with Mogambi about getting an attorney. Getting an I-601 waiver can be difficult. An attorney with experience in this area will know what sort of hardship evidence is likely to work and what isn't.

Nobody can say for sure how long it will take to get the waiver. It could be weeks. It could be years. A couple of months is more likely. You can't submit the I-601 waiver application until you've attended the interview and the visa has been denied. They can't adjudicate the waiver application until it's been established that a waiver is needed, and the act of applying for the visa is what establishes that.

[NigeriaorBust 4,087]

It isn't you that applies for the wavier , it is the USC. He will have to show why he can't move to where you are. Waivers can be extremely difficult from VWP countries as they all have a high standard of living. Simply saying I can't go there because I am in the military isn't going to cut it. You lack many of the items that make a waiver easy. You don't live in terrorist country, you don't have a language issue, it doesn't sound like he would be leaving children behind. That is why you need professional help. A site better equiped to guide you is immigrate2us.net They are the waiver experts. Also it is hard to prove hardship for a fiance, it isn't like you are married.

[Julie y Pat 67]

The beneficiary does apply for the waiver, the USC writes the hardship letter

[rustamuz 0]

Before I begin I want to thank you ahead for your attention and help. I really admire the quality of the forumgoers here and while I have visited many times for information, this is my first time posting.

I am an Australian citizen very much in love with an American I met while living in the US a few years ago. I was young when I entered, barely 18, on a visa waiver on my own and overstayed in excess of the 180 days that would ordinarily incur a ten year ban. The ICE officer who managed my case reviewed my individual circumstances thoroughly and at his own discretion granted me a voluntary departure, rather than deportation, which means I would have zero repercussions against my standing with the US. I have maintained contact with him since, and he has advised me that my K-1 application should be unaffected by my vast indiscretion.

On paper the ICE officer has done me an amazing service by saving me from the ban, however I still overstayed massively and I can't help but feel that it should come back to bite me. I have done much Googling but can't find much in the way similar to my circumstances so I have come to you asking for help. I really want this to work out, my fiance traveling to Australia to be with me is not an option at the moment, he is signed into several years service with the US Navy, and on top of that I just plain don't want to take him away from the job he loves.

What can I expect?

Is there anything I should prepare for and how?

This is certainly a stain on the moral character they seek in applicants, is it enough to deny me?

THANK YOU for reading!

Hi there, I feel your worry. my best friend is also in same situation. He was granted voluntary departure and now his spouse have already applied for I 130. I guess your will be husband should better come to Australia and apply for Direct consular filling in our country. Keep fighting and I hope there is way to get back there to US.

[Sandra G. 5,075]

You don't need the I-212 waiver (no deportation) but you still need the I-601(unlawful presence). If you stayed in the USA out of status for at least 6 months then you have the 3 year ban. The US Citizen needs to prove hardship if he has to move to your home Country.Find a GOOD lawyer to handle your waiver. US Consulate in Australia allows DCF even if the US Citizen is not resident in Australia.

Good luck.

Edited July 15, 2012 by sandranj

[IrishStar 0]

My fiance visited through the Visa Waiver Program between Ireland and the US this year. Technically his 90 day waiver expired on May 1st but his flight left the US on May 2nd. We are still very early in the process, but is this an overstay even though it is just a day?

Thanks.

[Justine+David 218]

^^ you need to start your own thread and not ask questions in someone else's thread. That being said, if he overstayed by a day, he won't be barred, but can never use VWP again.

OP, what were your dates? Did you stay 1 year total in the US or >13 months? There is a waiver forum here on VJ and I would also suggest immigrate2us.net. Would strongly recommend getting a GOOD lawyer (someone who specializes, not someone who will just fill out papers). Do your research--do not take this lightly. Spousal visa would probably be better than a K1 (as it's better to have a spouse that the USC doesn't have access to vs a fiancee), but you've already applied. You can withdraw the K1, but I wouldn't do anything until you find a course of action.

He has to prove why he can't live in Australia with you. Usually the USC has children or has medical conditions that preclude being in the country, but as others have said, Australia isn't a third world country and has a very high standard of living there. I don't know how the military works in there...I would think it would be positive. There are military help lines available for those in immigration with USCIS and I would check out that avenue to see what they say.

Let us know how things go...