NEED HELP WITH THE PROCESS!!!

[Katix 0]

Okay... so... my boyfriend and I are going to get married!!! I am so excited. We've been dating for 2 years and everything is perfect. Only now we aren't quite sure how to make him legal. He is from Italy, has been living in the US for 3 1/2 years now. He entered on a tourist visa and never left. We are both very confused because we all the places we check only give instructions if he is not in the US or give instructions where he leaves and then comes back. Neither is good for us, we haven't been apart since we met, and we don't want to be. Please help!!! what do we do???

[YuAndDan 153]

Three things:

1. If he leaves the country he will be subject to a bar for overstaying a visitor's visa and not be able to reenter for a period of years.
   
2. Look at: http://www.visajourney.com/forums/index.ph...p;page=otheraos
   
3. I would highly recommend seeking advise form an immigration attorney.
   

One other thing how was he supporting him self? If worked without authorization from USCIS, there may be other penalties.

Edited November 3, 2006 by YuAndDan

[kitkat1 5]

If worked without authorization from USCIS, there may be other penalties.

Just to add on to Dan's great advice, strangly enough, working without authorization is forgiven when married to a USC. Definitely seek the advice of a well qualifed and experienced immigration attorney and do not let him leave the country or the process will become much more difficult and complicated.

[Katix 0]

If he leaves and goes through the K1 process how long will we be apart???

[kitkat1 5]

If he leaves and goes through the K1 process how long will we be apart???

The I-129F application process varies and can take up to 6 months. Then there is the wait for the interview date.

But in your case it wouldn't just be the K1 process. He would have to submit a 601 waiver to forgive his illegal presence and you, as the USC, would have to prove "extreme hardship" to you if his visa is denied and you are forced to relocate permanently to Italy. Waiver approval rates differ country by country as does the definition of "extreme hardship". Some countries take 3 months to process waivers, some take 12 months. That's why he should not leave, otherwise you will also have to deal with the entire 601 waiver process and it will become much more difficult and complicated

[kitkat1 5]

Take a look here:

http://italy.usembassy.gov/dhs/uscis/services/I-601.asp

For guidelines regarding 601 waivers in Rome and current processing times (6-9 months after interview date).

I would do a consultation with a qualified immigration attorney to see if adjusting from tourist visa overstay is a viable option and do everything possible to avoid having to go through the 601 process. If you don't have enough to support the claim of "extreme hardship" and it's denied, there aren't really any other viable options.

[Boiler 46,178]

He does not want to leave, clearly stated in the original post.

Why anybody in this position would without a Green Card firmly in their hands is beyond me.

In answer to the original question, you follow all the steps listed in the guides, BUT you can ignore the bit about getting here, he is here.

An initial consulation with an Immigration Lawyer is never a bad idea, but assuming you have nothing else you have not mentioned quite diy'able.

[YuAndDan 153]

What are the penalties for overstaying the duration of the visitor's visa in the U.S.?

There are a variety of penalties for overstaying the time on one's I-94 card (not the visa) depending upon the circumstances. If a person has a visitor's visa and overstays by 180 days, then leaves voluntarily, there is a three-year bar to coming back to the United States. If one overstays a whole year and then leaves voluntarily, there is a ten-year bar.

Persons who are out of status and wish to apply for permanent status cannot complete their cases without leaving, unless a petition or labor certification was (a) filed for them before January 14, 1998. (B ) filed by April 30, 2001, if they were present in the U.S. on December 21, 2000. (There are certain exceptions, such as persons applying for green card based on marriage to a U.S. citizen.)

Apart from the consequences indicated above, there is also the possibility of being apprehended and placed in removal proceedings or actually being removed from the United States involuntarily. So the penalties that apply do depend on the circumstances

http://www.going2usa.com/tourism/touristvisafaq.html#4

OR also read on Department of State site:

Staying Beyond Your Authorized Stay in the U.S. and Being Out of Status

• You should carefully consider the dates of your authorized stay and make sure you are following the procedures under U.S. immigration laws. It is important that you depart the U.S. on or before the last day you are authorized to be in the U.S. on any given trip, based on the specified end date on your Arrival-Departure Record, Form I-94. Failure to depart the U.S. will cause you to be out-of-status.
  
• Staying beyond the period of time authorized by the Department of Homeland Security (DHS) and being out-of-status in the United States is a violation of U.S. immigration laws, and may cause you to be ineligible for a visa in the future for return travel to the U.S. Select Classes of Aliens Ineligible to Receive Visas to learn more.
  
• Staying unlawfully in the United States beyond the date Customs and Border Protection (CBP) officials have authorized--even by one day--results in your visa being automatically voided, in accordance with INA 222(g). Under this provision of immigration law, if you overstay on your nonimmigrant authorized stay in the U.S., your visa will be automatically voided. In this situation, you are required to reapply for a new nonimmigrant visa, generally in your country of nationality.
  
• For nonimmigrants in the U.S. who have an Arrival-Departure Record, Form I-94 with the CBP admitting officer endorsement of Duration of Status or D/S, but who are no longer performing the same function in the U.S. that they were originally admitted to perform (e.g. you are no longer working for the same employer or you are no longer attending the same school), a DHS or an immigration judge makes a finding of status violation, resulting in the termination of the period of authorized stay.
  

http://travel.state.gov/visa/temp/types/types_1262.html#9

(B ) ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(B )(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

http://travel.state.gov/visa/frvi/ineligib...ities_1364.html

http://www4.law.cornell.edu/uscode/html/us...82----000-.html

If your fiance overstayed visa 180 days to 1 year then will be bared reentry for 3 years, and if overstay was a year or more, then the bar is 10 years. K-1 visa is not an option, the waiver of the bar is difficult, leaving the country and then applying for a marriage based visa will be denied, due to the overstay.

Edited November 3, 2006 by YuAndDan

[kitkat1 5]

If your fiance overstayed visa 180 days to 1 year then will be bared reentry for 3 years, and if overstay was a year or more, then the bar is 10 years. K-1 visa is not an option, the waiver of the bar is difficult, leaving the country and then applying for a marriage based visa will be denied, due to the overstay.

But it doesn't mean a fiance or spousal visa is not an option. It means that in either circumstance, if he leaves the US, the bar will kick in and the waiver will be needed to overcome the bar after the initial visa denial. In Rome the approval rates are decent, but it takes 6-9 months. Therefore marriage in the US and AOS from the overstayed visa, is a much better option. Both the I-129F and the I-130 can be filed while he is in the US without a problem.