Voluntary Departure + K1 or Overstay + I-130?

[Dancingfool 1]

Hi all-

Here is the situation: I am a US citizen. My GF, an Indonesian, has been living and working in the US for about 15 years on a pending political asylum case. We have been together for 5 years and can easily prove it. Her case was recently decided against her and she was given 60 days Voluntary Departure to leave the US. She has never been out of status, never overstayed, no criminal record of any sort, etc. Her lawyer (who I think may be overly conservative) has told her that she should leave the US under Voluntary Departure and we should file for a K-1. I believe this would keep us apart for 6-9 months, which kind of sucks.

Here's my question: it seems to me that an alternative would be for her to cancel the Voluntary Departure (by appealing her case), for us to get married immediately, and for me to file an I-130 for her. It is true that she would be overstaying and/or going out of status (and I suppose potentially ignoring a removal order), but I read of many cases of people who are out of status or overstaying and they still are able to change status by spousal sponsorship. This way we would not be separated.

I would appreciate any input regarding these two scenarios. The system is so damn complicated that no matter how much research I do or how many lawyers I talk to, I can't seem to get a clear answer on this.

Thanks very much.

[clairegie 265]

So if you appeal, it will only extend the voluntary period for 30 days. If she accrues more than 6 months of unlawful presence here in the States, she will get a 1 year ban. If she stays longer than a year, that's a 10 year ban. I think its best to listen to the lawyer and file a K1 visa. Spousal visa takes much longer than the fiance visa and her overstaying and getting married in a rush might not look good during your adjustment interview (if you get one). Yes, others adjust their status this way. But their case is not as complicated as yours. In short, just follow the law. Yes, its 6 months of being apart. But thats better than possibly being apart of 3 years.. or a decade :S

[Pitaya 2,577]

~Moved from K1 Process to Which Visa Do I Need Forum~

~Inquiry about family visas~

[Boiler 45,525]

Was her case deemed frivolous?

[Dancingfool 1]

Hi Boiler-

No, it was not found frivolous. As you can imagine, in 15 years the case took many twists and turns. I don't know every step in detail, but variously the courts (plural) have found for her and against her through multiple appeals on both sides. Just recently the ruling I alluded to went against her stating that "the cumulative harm experienced by the respondent (in Indonesia) does not rise to the level of persecution."

[Boiler 45,525]

Certainly a lot of issues and not DIY.

My thought is that her lawyer has worked the system to keep her here for 15 years so sounds like he knows what he is doing.