Can I file for Fiancee Visa while the Fiancee is banned?

[mettiboe 0]

Hi, I'm a US citizen who is engaged to a Cayman citizen. He has only visited me twice. The first time for two months and he came back for the Holidays two months later and was told that he could stay the full visiting term (6 months maximum) but after that he would be banned for a year. I was wondering if I could still file for the fiancee visa so he could come and get married to me once it is all processed or will it just be automatically denied because he is potentially banned for 1 year? I'm only asking because the application process already takes so long I was hoping we could get it done ahead of time and potentially even set the date for next year so he wouldn't enter until the 1 year is up.

[Roel 7,193]

Yes he will not be able to enter USA on any visa if the ban is still active. If there is any ban.  Depend on how many days exactly he overstayed. 

[geowrian 22,338]

Yes you can file, but if he still has a ban at the time that he would otherwise be approved for the visa, the visa will be refused pending either a waiver or the ban no longer being applied. The process is taking 6-8 months from filing, and can easily be delayed a couple months if desired.

 

However...a 1 year ban? That doesn't sound right. The bans for overstaying are 3 years for 180 days to 1 year, and 10 years for 1 year or longer. It sounds more like he was advised not to try to re-enter the US again because he would be refused due to concerns of living in the US. A general rule of thumb is to spend twice as long outside the US as inside it. But that's not an actual ban....just some friendly advice. And when was he told this...when he entered for 6 months? They cannot issue a ban on entry and permit the person inside. I really think he was just given advice to avoid being denied entry in the future, not actually a ban.

[belinda63 3,052]

Doesn't sound like he has an official ban, sounds like he was just warned he was spending too much time in the US as a tourist and he needed to remain out for a year before coming to visit again. If nothing was noted in his passport and he was allowed to enter the US after being told this then he doesn't have a ban.

[Auds 223]

I dont think there's a ban based on what you wrote.  As long as he left in 6 months you are good.  It does seem just a warning which means nothing if you file a k1

[mettiboe 0]

6 hours ago, geowrian said:

Yes you can file, but if he still has a ban at the time that he would otherwise be approved for the visa, the visa will be refused pending either a waiver or the ban no longer being applied. The process is taking 6-8 months from filing, and can easily be delayed a couple months if desired.

 

However...a 1 year ban? That doesn't sound right. The bans for overstaying are 3 years for 180 days to 1 year, and 10 years for 1 year or longer. It sounds more like he was advised not to try to re-enter the US again because he would be refused due to concerns of living in the US. A general rule of thumb is to spend twice as long outside the US as inside it. But that's not an actual ban....just some friendly advice. And when was he told this...when he entered for 6 months? They cannot issue a ban on entry and permit the person inside. I really think he was just given advice to avoid being denied entry in the future, not actually a ban.

I thought the 1 year ban seemed odd too since I did tons of searching on the web and couldn't find anything on 1 year bans and only saw the 3+ year penalties for overstaying. He didn't overstay of course though, since he had only been here two months, then went home and came back. I know he was flagged for random screening with a bunch of other people who didn't seem to be connected in any way and when he got to his second interview the person said he seemed suspicious because his ticket was only a one-way without a return ticket. The ticket was a gift from his father and he didn't have a set date when he was coming home we just knew it would be after Christmas some time and the interviewer didn't believe him that he would go home even after grilling him and looking through his social media to find proof of me, that I was indeed his girlfriend.

 

So if he was not banned but was still told to stay out of the USA for a year, couldn't this get him in trouble somehow since it would be him trying to re-enter the USA before the year is up. Sorry if this is confusing. Is there any way to confirm that there is no ban with someone or with some agency or should I just file for the visa and see what happens?

[geowrian 22,338]

9 minutes ago, mettiboe said:

So if he was not banned but was still told to stay out of the USA for a year, couldn't this get him in trouble somehow since it would be him trying to re-enter the USA before the year is up. Sorry if this is confusing. Is there any way to confirm that there is no ban with someone or with some agency or should I just file for the visa and see what happens?

For a tourist visa, sure. For any other non-immigrant intent visa, probably. For a K-1 he should be fine since it permits immigrant intent. The assumption if he tries to enter on a tourist visa would probably be that he is planning to live/work/stay in the US (which isn't allowed). Those activities (once the proper paperwork is sent and processed during AOS) is permitted with a K-1 visa.

 

I'm honestly not aware of a way to check if you have a ban, but if there's nothing written on his visa/passport and he didn't overstay or work or anything illegal like that, then the presumption would be that he doesn't have one. In the very unusual case that he did have a 1 year ban (which I don't think he does), it would mean the visa would get refused after the interview. At that point he could either wait out the rest of the ban (preferred) or you could file for a waiver (not cheap and would likely take longer than waiting the ban out). I can't tell you what to do, but if I were in your shoes and ready to marry in the US, I would file the I-129F.

Edited May 29, 2017 by geowrian

[mettiboe 0]

Thank you all for your information!

 

Another quick question since I just reviewed some of the info I'll need for the visa, it says that I will need to prove that I have the means to support my fiancee when he comes here but I do not work and will be unable to provide that proof. He has his own job where he currently lives and will have plenty saved up before he comes to marry, but will that not matter if I don't have employment?

[geowrian 22,338]

7 minutes ago, mettiboe said:

Another quick question since I just reviewed some of the info I'll need for the visa, it says that I will need to prove that I have the means to support my fiancee when he comes here but I do not work and will be unable to provide that proof. He has his own job where he currently lives and will have plenty saved up before he comes to marry, but will that not matter if I don't have employment?

The I-134 will be needed at the time of the interview. If you don't have sufficient income, you will need to find a joint sponsor. They need to (also) fill out an I-134 and provide supporting documentation. A joint sponsor can be any USC/LPR domiciled in the US.

 

What embassy are you going through? COs from some embassies don't permit joint sponsors. The vast majority do, though. It's technically possible to "self-sponsor", but it's usually difficult unless the intending immigrant has quite significant assets. He will need - at the minimum - 5x the federal poverty level for the household size in assets. See here for the levels (I-134 is 100% level): https://www.uscis.gov/system/files_force/files/form/i-864p.pdf

 

The I-864 (for AOS after entry) will go by the 125% level but only needs 3x the level since he would then be your spouse.

Edited May 29, 2017 by geowrian

[mettiboe 0]

I have a family friend who has enough income to be a joint sponsor and has expressed interest in helping us out before, but he does not live with me. Would he still be able to be a joint sponsor?

[geowrian 22,338]

Just now, mettiboe said:

I have a family friend who has enough income to be a joint sponsor and has expressed interest in helping us out before, but he does not live with me. Would he still be able to be a joint sponsor?

If he's a USC or LPR living in the US, yes.

Edited May 29, 2017 by geowrian

[Cathi 5,795]

8 hours ago, belinda63 said:

Doesn't sound like he has an official ban, sounds like he was just warned he was spending too much time in the US as a tourist and he needed to remain out for a year before coming to visit again. If nothing was noted in his passport and he was allowed to enter the US after being told this then he doesn't have a ban.

This.

[JFH 12,191]

11 hours ago, mettiboe said:

Thank you all for your information!

 

Another quick question since I just reviewed some of the info I'll need for the visa, it says that I will need to prove that I have the means to support my fiancee when he comes here but I do not work and will be unable to provide that proof. He has his own job where he currently lives and will have plenty saved up before he comes to marry, but will that not matter if I don't have employment?

You do realize that once his visa is granted and he comes to the country he won't be able to work for several months? This has more than just financial implications. It can lead to boredom and depression - especially for someone who has always worked. And, depending on the field of work he is in, a break of several months may make it very difficult to get back into that field as he will have been "left behind" while the industry moves on. 

 

If he he has a job and savings, wouldn't it be better for you to move to his country or you might want t to consider getting married first and filing a CR-1 visa that allows him to work right away once he arrives. For many people, a K-1 isn't necessarily the right choice. 

[millefleur 5,047]

14 minutes ago, JFH said:

You do realize that once his visa is granted and he comes to the country he won't be able to work for several months? This has more than just financial implications. It can lead to boredom and depression - especially for someone who has always worked. And, depending on the field of work he is in, a break of several months may make it very difficult to get back into that field as he will have been "left behind" while the industry moves on. 

 

If he he has a job and savings, wouldn't it be better for you to move to his country or you might want t to consider getting married first and filing a CR-1 visa that allows him to work right away once he arrives. For many people, a K-1 isn't necessarily the right choice. 

What @JFH said.

 

Also, if you don't work and don't have any assets or savings of your own to sponsor him, you will need a joint sponsor. Whether it's the CR-1 or the K-1, he has to have sponsorship to show he won't become a public charge. I'm not sure if it's possible in this case for him to 'self-sponsor' himself if he has a lot of savings. I believe if he choose to self-sponsor he would need a certain defined amount of savings/assets to do so. If that doesn't work, then you'd need to go the joint sponsor route.

Edited May 29, 2017 by millefleur

[mrtravel 40]

The sponsor should know he is on the hook for support until the immigrant has 40 quarters of qualifying work or gets citizenship.