Applying for K-1 with Previous Overstay

[lemont 0]

^^ 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...

Thank you so much, I had no idea about the military help line, that will assist a lot I should think. I would have thought the military angle would have helped too, since leaving the country without leave during his signed-on service period is technically treason?? But according to some here "doesn't cut it". We had forgone the attorney till now, but I will begin looking into one. Does anyone know if sending a 'letter of apology and explanation' of sorts with the i-608 packet would generally assist with our cause? I do have a decent reason for having overstayed so long (>13 months) which is why I was granted the voluntary departure in the first place.

[GlobeHopperMama 95]

Reason for overstay is never really taken into account, unfortunately. Most people have pretty compelling ones, some involving very emergent circumstances on the part of themselves or their US petitioners, but they all get banned the same. Yeah, ICE officers seem to love telling people that they've used discretion to erase any bans that apply, I think they enjoy the feeling of power this gives them even though it's false. They have no say in the bans, it's all written up in the INA and ultimately, inadmissibility is determined at the consulate. I personally recommend all three lawyers I've linked in my signature. Check out their websites, two of them offer free initial consultations. They specialize in I-601s for overstay, and they're all great people who you can trust to know what they're doing and not scam you for money.

Also check out immigrate2us.net, where you can find some very comprehensive resources so you can get familiarized with the waiver process. It has undergone substantial changes in the last two months and now all waivers are filed with a lockbox system in the US that has been pushing out approvals in under a month, which is groundbreaking since before the lockbox, people were waiting over a year in many cases for waiver approval. Do check out those resources, and especially because as previously stated, sometimes proving hardship in relation to VWP countries is a bigger challenge, but it's definitely not impossible!

Edited July 15, 2012 by GlobeHopperMama

[me&him 2]

My fiance had a similar situation. He overstayed his student visa for more than 6 months but les than a year. He had a 3 year ban. The consulate told him the ban was for 10 year and denied him at intetview. I contacted local Immigration office and met with an Imigration Officer. After some research I found that ICE made a mistake on my fiance Alien Number and mixed his record with anothet individual. After reviewing the documents the ICE officer fixed the mistake in the system and send am Email to the Embasssy. The embassy reviewed the information and recently approved my fiance visa. He will be picking up hid passport in couple of hours. I do think the ICE officer are authorized to change and override the system cuz they did in my case and it worked.

[lemont 0]

My fiance had a similar situation. He overstayed his student visa for more than 6 months but les than a year. He had a 3 year ban. The consulate told him the ban was for 10 year and denied him at intetview. I contacted local Immigration office and met with an Imigration Officer. After some research I found that ICE made a mistake on my fiance Alien Number and mixed his record with anothet individual. After reviewing the documents the ICE officer fixed the mistake in the system and send am Email to the Embasssy. The embassy reviewed the information and recently approved my fiance visa. He will be picking up hid passport in couple of hours. I do think the ICE officer are authorized to change and override the system cuz they did in my case and it worked.

I see what you mean but I think in your case they fixed the situation in lieu of a mistake being made on their end.

Thank you for all your responses, the information I have obtained has been invaluable. Thank you Globe Hopper for the links, I have followed up on those. It's just a shame about the ICE officer. They mean well I can see but I would have been a very, very teary and confused individual at the interview if I had gone in armed with his word alone. Faith in humanity, restored.

[summersurf 10]

Does anyone happen to know how long an i-601 takes to process

I think it depends on the embassy you file it at..Mine was taking 7 months to be approved, some got approved quicker and some even longer.

Does anyone know if sending a 'letter of apology and explanation' of sorts with the i-608 packet would generally assist with our cause?

YES! The extreme hardship and letter of apology would be the 2 "main ingredients" in filing for this I-601 waiver. I'm sharing this based on my own experience. My letter of aplogy was about 6 pages, i did't leave anything out, i wrote everyhing, i mean every single thing in it from the very day i enter the US, why i was overstaying, what i did when i was overstaying, etc, but of course i also attach the proof along with the letter.

Hope this helps.

[lemont 0]

Does anyone know if sending a 'letter of apology and explanation' of sorts with the i-608 packet would generally assist with our cause?

YES! The extreme hardship and letter of apology would be the 2 "main ingredients" in filing for this I-601 waiver. I'm sharing this based on my own experience. My letter of aplogy was about 6 pages, i did't leave anything out, i wrote everyhing, i mean every single thing in it from the very day i enter the US, why i was overstaying, what i did when i was overstaying, etc, but of course i also attach the proof along with the letter.

Thank you... you say you wrote an essay of sorts on your overstay... when you say you included "evidence" in this regard, what exactly do you mean?

Unfortunately in most incidences when residing illegally, very little in the way of a paper trail is left behind.

[Justine+David 218]

Also- how old are you now? If you don't get approved, you can always wait out the 10 year ban and he could come live with you (although yeah, would have to be discharged from the military)...

[bigdog 376]

Get an immigration attorney, good luck.

[GlobeHopperMama 95]

Also- how old are you now? If you don't get approved, you can always wait out the 10 year ban and he could come live with you (although yeah, would have to be discharged from the military)...

Waiting out the 10 years is generally a last resort only for those with nearly impossible-to-win cases, with heavy aggravating factors (severe infractions like deportation absconders, CIMTs/criminal issues, denied asylum in the US, etc.). If you have any amount of money to invest in the process, hiring an experienced waiver lawyer is usually a preferable solution, because good lawyers know how to weave successful hardship cases even for people whose lives in their spouse's countries would not be poverty-stricken and health/safety-threatening. Although the "extreme hardship standard" can be daunting, for someone with a very minimal aggravating factor, such as the case of the OP, overcoming it with hardships is not so impossible.

As far as apology letters, most lawyers advise to keep such things brief. In many countries, the waiver is not about showing remorse as much as it is demonstrating all the necessary facts. There are variations, and in some countries more lengthy apologies are expected. However, now that waiver adjudication is happening inside the US by centralized staff instead of at various offices abroad, adjudication is supposed to become much more standard, and this is yet another reason to find out from lawyers doing a high volume of recent waiver cases, to see how apologies are being regarded in waivers now with the new system.

Edited July 15, 2012 by GlobeHopperMama

[summersurf 10]

Thank you... you say you wrote an essay of sorts on your overstay... when you say you included "evidence" in this regard, what exactly do you mean?

The evidences just like when you file for K-1, Cr-1, etc. Most of my proofs was pictures. Say in the letter i wrote i worked while i was overstaying, i included the complete info about the place i work at, my employer's name, address, phone # and my pictures with them. That just one of the examples. Basically what i wrote in my letter, i accompany it with the proof, so they know i'm telling the truth.

My case was pretty tough, i work illegally in addition of that overstaying. I explained them all in my letter. How i met my then fiance, why i really needed that waiver, again, i wrote everything in there. And i'm almost 100% sure they read my entire letter

We didn't hire no attorney, it does seem hard but you can do it on your own.

Edited July 15, 2012 by summersurf

[Justine+David 218]

Waiting out the 10 years is generally a last resort only for those with nearly impossible-to-win cases, with heavy aggravating factors (severe infractions like deportation absconders, CIMTs/criminal issues, denied asylum in the US, etc.). If you have any amount of money to invest in the process, hiring an experienced waiver lawyer is usually a preferable solution, because good lawyers know how to weave successful hardship cases even for people whose lives in their spouse's countries would not be poverty-stricken and health/safety-threatening. Although the "extreme hardship standard" can be daunting, for someone with a very minimal aggravating factor, such as the case of the OP, overcoming it with hardships is not so impossible.

As far as apology letters, most lawyers advise to keep such things brief. In many countries, the waiver is not about showing remorse as much as it is demonstrating all the necessary facts. There are variations, and in some countries more lengthy apologies are expected. However, now that waiver adjudication is happening inside the US by centralized staff instead of at various offices abroad, adjudication is supposed to become much more standard, and this is yet another reason to find out from lawyers doing a high volume of recent waiver cases, to see how apologies are being regarded in waivers now with the new system.

yeah, but if the overstay occurred when she was 18 and she's now 27, I'd wait out a year versus paying all the expensive immigration attorney fees.