Filling out DS-160 for K-1 with uncertain past OPT status

[leapingpanther 0]

Hi everyone,

Long-time lurker of this very helpful forum. My fiancee and I are in the middle of the fiancee visa (K-1) process. Our I-129 has been approved and now my fiancee needs to submit her DS-160. This will be with the Guangzhou, China consulate if it makes any difference.

We are stuck on how best to answer the following question on the DS-160 in relation to evidence for a past Optional Practical Training/OPT status for my fiancee and would really appreciate your help - "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?"

My fiancee has been in the U.S. a few times and the last time she was here on a F-1 visa for her masters. Following that she entered into a 12 month OPT period (which generally requires you to 1) work at least 20 hours a week, paid or unpaid, at a position related to your study and 2) document this appropriately with school/SEVIS). You are also allowed a 90 day grace period of unemployment under OPT.

The problem is that my fiancee was involved in an unpaid project that had flexible working arrangements during her OPT (she had filed this project in SEVIS). Furthermore, we are not sure what type of documentation is required to satisfy both her duration of work on this project and that she satisfied the 20 hour per week requirement. As noted before it was very flexible working arrangements so it is possible there were a few weeks where she did not meet the 20 hour requirement although we think this was unlikely the case. My fiancee also never updated her SEVIS record at the end of her OPT period when she left the country and participated in a few other unpaid side projects that were not documented in SEVIS. So I am not sure if she might have been out-of-status as well for whatever reason. And my understanding that being out of status would mean she is violating the terms of a past U.S. visa.

We think we have a few choices of responding to this question.

1. Respond yes to the question, and note my fiancee might be out of status under the OPT since we might not have evidence to indicate she was always working 20 hours per week per the OPT requirement.
2. Respond no to the question, since to the best of belief this is the case. If the consulate asks for more information, we will respond appropriately with the best we have.
3. Respond no to the question, but attach an affidavit explaining our thought process and the potential problem with documentation. An attorney we spoke to suggested this option but our letter from the consulate noted we were not supposed to include additional documents in our DS-160 submission.

We are wondering if people have insight how to answer this question and how the government looks at these SEVIS/OPT records for the purpose of approving a K-1. We obviously want to be truthful in our answers to the question above but at the same time we do not want to accused of misrepresenting our answers on the DS-160 if for some reason we fail to provide evidence to prove my fiancee was in status during her OPT.

As a related question, I understand there is no statutory bar for less than 180 days of unlawful presence. Presumably any issues with my fiancée being out of status of her OPT, as long as it is under 180 days, would also not result in any bars either?

Thanks so much in advance!

[bigjailerman 318]

Did she ever re enter the US after the out of status time frame?

Your NOA2 was approved so it slipped past the USCIS/NVC steps but by no means should you lie because a CO would deny when/if he notices it and you can receive a lengthy ban.

Like you stated, you cannot include any documentation with your ds160 so during you interview, you should put it out there in front. You introducing it with the CO can take the potential bite out out of him/her. They do review the application before you sit in front of them and have developed a line of questioning pre interview. Put yourself in their position and how would you view the application and how would you question it.

Edited September 13, 2016 by bigjailerman

[leapingpanther 0]

Did she ever re enter the US after the out of status time frame?

Your NOA2 was approved so it slipped past the USCIS/NVC steps but by no means should you lie because a CO would deny when/if he notices it and you can receive a lengthy ban.

Like you stated, you cannot include any documentation with your ds160 so during you interview, you should put it out there in front. You introducing it with the CO can take the potential bite out out of him/her. They do review the application before you sit in front of them and have developed a line of questioning pre interview. Put yourself in their position and how would you view the application and how would you question it.

Thanks for the advice. With respect to her re-entering the U.S., she has not entered the U.S. after her OPT expired. How might that change the calculus?

Good point - we will definitely have her be forthright and the situation. I guess my question is for the purpose of the question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" whether we should say NO or YES for now? Or maybe the answer doesn't matter since the CO will go over everything for the interview anyway?

[C-ma'am 684]

Thanks for the advice. With respect to her re-entering the U.S., she has not entered the U.S. after her OPT expired. How might that change the calculus?

Good point - we will definitely have her be forthright and the situation. I guess my question is for the purpose of the question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" whether we should say NO or YES for now? Or maybe the answer doesn't matter since the CO will go over everything for the interview anyway?

To the best of her knowledge, has she done any of those things? I would answer no, because she will have the information to back that answer up at the interview.

In my own experience, I have never violated the terms of a visa. At my interview, the CO accused me of overstaying a B2 (never happened, I had extended my visa with a law firm). It had been more than 10 years and I had been granted a new 10 year B2 after the alleged overstay she was accusing me of. I had all the information she asked me. She wanted to know the POE and thankfully I even had the name of the law firm I used. As I mentioned, more than 10 years had passed and the lawyer told me that they didn't have any records that were more than 7 years old.

So, to the best of my knowledge I had NEVER overstayed a visa. I was always very careful not to. My answer to that question was No

[bigjailerman 318]

To the best of her knowledge, has she done any of those things? I would answer no, because she will have the information to back that answer up at the interview.

In my own experience, I have never violated the terms of a visa. At my interview, the CO accused me of overstaying a B2 (never happened, I had extended my visa with a law firm). It had been more than 10 years and I had been granted a new 10 year B2 after the alleged overstay she was accusing me of. I had all the information she asked me. She wanted to know the POE and thankfully I even had the name of the law firm I used. As I mentioned, more than 10 years had passed and the lawyer told me that they didn't have any records that were more than 7 years old.

So, to the best of my knowledge I had NEVER overstayed a visa. I was always very careful not to. My answer to that question was No

[bigjailerman 318]

Thanks for the advice. With respect to her re-entering the U.S., she has not entered the U.S. after her OPT expired. How might that change the calculus?

Good point - we will definitely have her be forthright and the situation. I guess my question is for the purpose of the question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" whether we should say NO or YES for now? Or maybe the answer doesn't matter since the CO will go over everything for the interview anyway?

In response to your other question. If she truly believes she didn't overstay and is ready with a valid reason why if she is questioned you can say NO. Does the passport show any stamps or status that makes you think it would raise a red flag?

[leapingpanther 0]

To the best of her knowledge, has she done any of those things? I would answer no, because she will have the information to back that answer up at the interview.

In my own experience, I have never violated the terms of a visa. At my interview, the CO accused me of overstaying a B2 (never happened, I had extended my visa with a law firm). It had been more than 10 years and I had been granted a new 10 year B2 after the alleged overstay she was accusing me of. I had all the information she asked me. She wanted to know the POE and thankfully I even had the name of the law firm I used. As I mentioned, more than 10 years had passed and the lawyer told me that they didn't have any records that were more than 7 years old.

So, to the best of my knowledge I had NEVER overstayed a visa. I was always very careful not to. My answer to that question was No

Thanks - this is helpful to hear. I guess we just have to be prepared for anything .

In response to your other question. If she truly believes she didn't overstay and is ready with a valid reason why if she is questioned you can say NO. Does the passport show any stamps or status that makes you think it would raise a red flag?

I see - that's what we were thinking as well. I don't think the passport show anything particularly concerning (and the OPT itself was under a separate employment authorization card, not passport). What might be red flags in this case? Thanks for all your responses on this!