Over stayed visiters visa

[JayJayH 546]

On how far who files the waiver, you will need read the instructions: http://www.uscis.gov/i-601

"Who May File This Form?"

An immigrant visa applicant who is outside the United States who has had a visa interview with a consular officer and was found inadmissible;

Are you sure on that one? I ask because the instructions say:

"Who May File This Form?"

An immigrant visa applicant who is outside the United States who has had a visa interview with a consular officer and was found inadmissible

http://www.uscis.gov/i-601

By reading this, it doesn't say only the USC can file.

I should reiterate, as it was worded badly. The prospective immigrant can file the waiver, but the waiver has to be based on the US citizen's merits.

Not sure what to do, my fiancé wants to wait, because he knows someone who overstayed the're visa by 10 years, an was not denied visa at interview.

There are three possible reasons as to why this person was not denied a visa.

1. He had overstayed, left, and waited out his bar (the bar is triggered upon leaving the US).

2. He got lucky, and his overstay was somehow never recorded or discovered.

3. "I know someone who..." is always extremely unreliable legal advice.

So there are three scenarios that could happen at his visa interview:

1. He lies about his overstay and triggers a lifetime bar for willfull material misrepresentation.

2. He lies about his overstay, and for whatever reason, the consular officer doesn't know about the overstay.

3. He's honest about his overstay, gets denied, and told that he may be eligible for an I-601 waiver.

In the hierarchy of "badness":

#1 is the worst thing that can happen. Waivers for overstay are somewhat difficult to get, but fully doable. Waivers for misrepresentation is a whole different ball game.

#2 is the second worst thing that can happen, why? Just because the consular officer didn't notice at the interview, doesn't mean it didn't happen. It could come up at any point later on in time. For example when you have to file for adjustment of status. Or when you have to file for removal of conditions. Or if he ever plans to file for US citizenship (at which point they do a fairly thourough background check). If it were to come up at any time after the K-1 is issued, he will be placed in removal proceedings for procuring a visa through willfull material misrepresentation. A deportable offense, subject to a lifetime bar.

#3 is bad, but honestly, he only has a 3 year bar. Not a 10 year or lifetime bar. The worst thing that can happen in this scenario is that the waiver is denied, in which case you have to wait out the 3 year bar, which by that time will be 1.5 - 2 years depending on when he left the US. Once the bar is up, he cannot be denied a K-1 visa based on his overstay. Nor will he be denied adjustment of status. Nor will he be denied removal of conditions. Nor will he be denied citizenship.

Speak to an immigration attorney.

[tanak45 17]

Yes he plans on be honest at the interview, he would never lie about that. If denied we will file the waiver, an go from there.

He left the states last November 2013.

[JayJayH 546]

Yes he plans on be honest at the interview, he would never lie about that. If denied we will file the waiver, an go from there.

He left the states last November 2013.

Ok, so worst case scenario, if the waiver is denied, he can apply for a visa in November 2016 without a waiver. At that time, he cannot be denied an immigrant visa based on the overstay.

For the waiver, I cannot stress enough how important it is you consult with an immigration attorney. I-601 waivers can be very complex, and require a lot of documentation and evidence. They can take months to prepare. I would begin planning ASAP.

[tanak45 17]

Yes will use a lawyer, thanks for all your help.