Fiance "may" have overstayed her F1, will she be eligible for K1?

[CrankyGoose 0]

Hi,

I and my fiancé are in the k1 process. We met in 2014 when she was a student (F1 visa) on OPT (OPT granted on October 10, 2014.) She left the U.S. on December 6, 2015 (OPT ends on October 9, 2015 with 60 days grace period.)

After we received NOA 2, she went through her document and found out she "might have" overstayed her visa

How?

OPT allows graduated students to work in the U.S legally for at least 12 months

All students must report their employment status within 90 days after the OPT is granted (NON-STEM)

However, my fiancé reported her employment status to the school later than 90 days (20 days late) because she mistakenly thought that she must report before 120 days. When she reported to the school, the international student adviser only said, "Ok, Thank you."

Since then, she has not gotten any emails, phone calls or letters from her school stating that her F1 is terminated or (not). So, she continued to live in the U.S. until her OPT ends because she thought that everything was OK.

Now she is not sure if her F1 has been terminated. She is currently waiting for her school adviser to get back from vacation in August to discuss with her of her previous F1 status.

So, my questions are

- Generally is it the school responsibility to report students status? Her school has never contacted her regarding her status during OPT.

- If it happened that she did unintentionally overstayed, will she be eligible for K1 visa? (she may have overstayed approximately 9-11 months depending when her i-20 was terminated)

- If she is still eligible for K1 visa, are there any additional document required specifically for this situation? (any kind of waiver)?

- Is there anything we can do now to better the situation?

Thank you

[NuZayetsPogodi 117]

You should talk with an immigration lawyer about this because it sounds too specific. But GENERALLY, if she's overstayed over 180 days (no matter whose fault or whose bad advice she took), she will have a 3-year ban from the US once she returns home. She will have to return home for the K-1 process. Overstays can be forgiven if she's married to a US citizen. So, you might want to consider getting married in the US and filing for an AOS. That may be the only way she won't have a ban from the US. But I'm not entirely sure -- this is just something you might want to look into and you might want to talk with an immigration lawyer about.

[CrankyGoose 0]

Hi there,

Thank you so much for the answer. However, as I have mentioned earlier, she already left the U.S. and is now in her country. Now we already recieved our NOA2. We were excited until she thought she "might" have overstayed.

Will it an absolute "no" for my fiance to get a k1 visa?

Thank you

Eric

[arken 4,197]

While she was required to report her employment details within 90 days, may be her emplyoment start date within 90 days saved her from SEVIS termination after she reported it after 110 days. Usually when her ISO reports her employment details to her SEVIS, they would know if that's terminated and they would notify her if so. So i think her sevis was not terminated. The only way to confirm is ask them which your fiance is doing.

At this point, the best thing to do is have her keep proof of her employment details (start date, pay checks). If SEVIS was in fact terminated, it shoukd be resolved first.

[CrankyGoose 0]

Hi Arken,

Thank you so much for the reply. Its really helpful. As of now, there is nothing we can do until her adviser gets back to her to confirm her. In the mean time, she checked all her personal emails and student email (assigned by her school), and she found no emails from the international student office whatsoever. No calls, no letters were ever received while she was living in the U.S. She was never notified, so I just really hope she was never terminated.

Thank you so much for the reply, it really help ease out my anxiety

[newacct 688]

In any case, she doesn't have to worry about a 9B ban, because she must accrue 180 days of "unlawful presence" and then leave to trigger the ban. And she has to stay past the date on her I-94 (not just become out of status) in order to automatically start accruing "unlawful presence". F1 students are admitted for "D/S" on their I-94, not for a specific date. So she does not automatically start accruing "unlawful presence" no matter how long she stays. (There are some other things that could cause her to start accruing "unlawful presence", like if an immigration judge made a final order against her, or she applied for something to USCIS and was denied, but none of these happened.)

[CrankyGoose 0]

newacct

Hi, Thank you for the reply. The information you provided is very helpful. But I have a few questions.

- First, (lets just assume her F1 was terminated) does it mean that when she goes for a K1 interview, the consular officer will never know of how long she stayed after she was out of status?

- Will they know of her SEVIS termination?

- Also, is it possible for the consular officer to not grant her the K1 visa because she was out of status? Will they be allowed to use such information against her?

Thank you

[newacct 688]

newacct

Hi, Thank you for the reply. The information you provided is very helpful. But I have a few questions.

- First, (lets just assume her F1 was terminated) does it mean that when she goes for a K1 interview, the consular officer will never know of how long she stayed after she was out of status?

- Will they know of her SEVIS termination?

They could know or find out, or they could not. But it doesn't matter either way because she doesn't have a ban.

- Also, is it possible for the consular officer to not grant her the K1 visa because she was out of status? Will they be allowed to use such information against her?

Not really. There really isn't any basis for them to deny a K-1 unless the relationship is not genuine or there is a ban.

[CrankyGoose 0]

Thats definitely comforting to hear. Its is a big relief on my part. Thank you so much for your knowledgable info. I really appreciate it

Thank you

[CrankyGoose 0]

newacct

Last question here. So (again lets assume that she was out of status) when we prepare for DS-160, there will be a question that asks about unlawful presence in the U.S., should she accept or deny the unlawful presence?

Thank you once again

[newacct 688]

newacct

Last question here. So (again lets assume that she was out of status) when we prepare for DS-160, there will be a question that asks about unlawful presence in the U.S., should she accept or deny the unlawful presence?

Thank you once again

I don't think the question only asks about "unlawful presence". I think it generally asks about any violation of status. If so, and she thinks she violated her status, she should say yes.

[DeGodefroi 17]

I don't think the question only asks about "unlawful presence". I think it generally asks about any violation of status. If so, and she thinks she violated her status, she should say yes.

I had this issue as well with the J-1 in 2000. Is out of status a violation of the visa? I am not sure. Why did they not ask in the DS-160 if you ever have been out of status?

[newacct 688]

I had this issue as well with the J-1 in 2000. Is out of status a violation of the visa? I am not sure. Why did they not ask in the DS-160 if you ever have been out of status?

Yes. It means the same thing.

[DeGodefroi 17]

Yes. It means the same thing.

Hmmm, personally the out of status has never been sure anyway. It was a messy time.

[steph&max 13]

If the OPT was granted it doesn't matter if the school was notified "in time" technically as she went through all the steps with USCIS to get the EAD card and have the OPT approved.

I stayed a week or two after mine ended and never had any issues, I think if you overstay after 180 that's when it's bad and you have to report it when you fill out the whole k1 process. She should be fine, don't worry about it.