K-1 visa and i601 waiver filing

[Leo1967 5]

Hello Everyone,

 

My fiance and I applied for a K-1 Visa and are waiting for the approval.  It has only been 30 days since we submitted the K-1 but we already know that he needs to apply for the i601 waiver because he overstayed a B-2 Visa from 2001 - 2004 which the US embassy found during a recent B-2 Visa Application in the UK where he lives.  That barred him for 10 years; later on he entered again in 2008 and overstayed by 30 days which bar him for another 3 years.  He should be clear by 2014, right?.   My question is, should I file the i-601 Visa Waiver now since he was told that he needed to file it?  I already have a receipt number from the K-1 Visa application and was thinking of sending it within the next few days.  Also, is the fee for his Visa Waiver case $930 as it appears in the current i-601 form?  He was never deported or has a criminal record.  

 

Other details:

He was born in Brazil but holds an Italian Passport now as his father is from Italy

He lives legally in the UK for the past 17 years. Not a UK Citizen yet but should be in 6 months.

Was denied entry into the USA through ESTA online application system that applies to most European countries

 

Any help would be greatly appreciated.

 

[payxibka 10,045]

You need to wait until found inadmissible

 

If you are an applicant for an immigrant, K, or V nonimmigrant visa (and you are outside the United States, have had a visa interview with a consular officer, and during the interview, you were found inadmissible,)

 

 

Edited January 6, 2018 by payxibka

[Leo1967 5]

Thank you Payxibka, but I am the Applicant and live in the USA not outside. My fiance is the beneficiary and he is in the UK.  Also, he was told that he was inadmissible as a visitor and that he needs to apply for a Visa Waiver.  

 

Found this information on the USCIS site but it sounds confusing because the K Visa sounds to me like an immigrant visa:

 

"If you are seeking adjustment, TPS, or a K or V visa, you can file the Form I-601 with your request for an immigration benefit or after you have filed your request. If you are seeking an immigrant visa, you can only file the Form I-601 after you are interviewed by a Department of State consular officer who found you to be inadmissible to the United States."

 

[jan22 3,056]

How did he enter the US in 2008?  Answer to this is critical to getting a good answer to your issues.

[Leo1967 5]

Hi Jan22

 

In 2008 he entered the US using his Italian passport which he didn't need a visa for at the time.  

[payxibka 10,045]

10 minutes ago, Leo1967 said:

Thank you Payxibka, but I am the Applicant and live in the USA not outside. My fiance is the beneficiary and he is in the UK.  Also, he was told that he was inadmissible as a visitor and that he needs to apply for a Visa Waiver.  

 

Found this information on the USCIS site but it sounds confusing because the K Visa sounds to me like an immigrant visa:

 

"If you are seeking adjustment, TPS, or a K or V visa, you can file the Form I-601 with your request for an immigration benefit or after you have filed your request. If you are seeking an immigrant visa, you can only file the Form I-601 after you are interviewed by a Department of State consular officer who found you to be inadmissible to the United States."

 

K is non immigrant

 

You are not the applicant but the petitioner

Your fiancee is the visa applicant

Edited January 6, 2018 by payxibka

[aleful 1,905]

yes, but it can be a big problem,

 

he was banned for 10 years, and he didn't comply with the ban, he couldn't come to the US until 2014, he reentered the country, knowing he had a 10 year ban, with another passport, granted that they didn't pick up on the ban, or he would have been denied entry.

 

the consul might even deny a waiver. he won't know until the interview. but coming to the US in 2008 was a bad move

 

 

[jan22 3,056]

3 minutes ago, Leo1967 said:

Hi Jan22

 

In 2008 he entered the US using his Italian passport which he didn't need a visa for at the time.  

But he applied for ESTA, right?  Did he conceal his overstay on the ESTA application?  And, with the subsequent visitor visa application, did he acknowledge the 2008 entry into the US when he was ineligible for entry at that time because of hus previous overstay?  And the second overstay or just the first one?   Just trying to see what other issues you might face.

[Leo1967 5]

Just now, jan22 said:

But he applied for ESTA, right?  Did he conceal his overstay on the ESTA application?  And, with the subsequent visitor visa application, did he acknowledge the 2008 entry into the US when he was ineligible for entry at that time because of hus previous overstay?  And the second overstay or just the first one?   Just trying to see what other issues you might face.

Yes, he applied for ESTA and was denied entry.  He was very honest in the ESTA application and entered his 2008 entry and departure with his Italian passport.  During the Consular interview this past December he was told he had an overstay in 2004 and that he had to file a Visa Waiver.   The consular officer didn't mention the 2008 visit at all. 

[Leo1967 5]

13 minutes ago, aleful said:

yes, but it can be a big problem,

 

he was banned for 10 years, and he didn't comply with the ban, he couldn't come to the US until 2014, he reentered the country, knowing he had a 10 year ban, with another passport, granted that they didn't pick up on the ban, or he would have been denied entry.

 

the consul might even deny a waiver. he won't know until the interview. but coming to the US in 2008 was a bad move

 

 

He was not told he was banned after the 2004 overstay.  He had no clue about the ban.  He was young and stupid.  in 2008 he used a different passport (Italy) and a Visa was not needed.   The 2008 overstay was for 30 days or so and never came up during the recent Visitor visa request.  He was told he had an overstay in 2004 only and that he needed to apply for a Visa Waiver.

[Leo1967 5]

29 minutes ago, jan22 said:

But he applied for ESTA, right?  Did he conceal his overstay on the ESTA application?  And, with the subsequent visitor visa application, did he acknowledge the 2008 entry into the US when he was ineligible for entry at that time because of hus previous overstay?  And the second overstay or just the first one?   Just trying to see what other issues you might face.

Maybe the confusion we have regarding the 2008 visit is that he didn't really overstay the 180 days to a year to be banned the 3 years.  This may explain why he wasn't told he overstayed that visit.  In 2008 he was here for 4 months total which is 120 days.  

[payxibka 10,045]

Just now, Leo1967 said:

Maybe the confusion we have regarding the 2008 visit is that he didn't really overstay the 180 days to a year to be banned the 3 years.  This may explain why he wasn't told he overstayed that visit.  In 2008 he was here for 4 months total which is 120 days.  

Don't get overly excited about this situation until he is found inadmissible.  It is then and only then will you know exactly what you are dealing with.  You cannot change the past.

[jan22 3,056]

2 hours ago, Leo1967 said:

Yes, he applied for ESTA and was denied entry.  He was very honest in the ESTA application and entered his 2008 entry and departure with his Italian passport.  During the Consular interview this past December he was told he had an overstay in 2004 and that he had to file a Visa Waiver.   The consular officer didn't mention the 2008 visit at all. 

I was referring to the 2008 entry when I asked about ESTA....my bad, since it didn't exist in that format in 2008, sorry.  It was the I-94W I should have asked about.  On the I-94W he filled out on the plane for his visa waiver entry into the US, did he admit to his prior overstay on the question about having previously  violated US immigration law?

[Boiler 45,541]

Sounds like Misrep at least.

 

Any ban will be adjudged at the interview and only after that is a waiver filed. 

 

Strongly suggest you at least consult with on the recommend waiver lawyers, you will need to know exactly what happened and when and put it down in a concise manner.

[Leo1967 5]

8 hours ago, jan22 said:

I was referring to the 2008 entry when I asked about ESTA....my bad, since it didn't exist in that format in 2008, sorry.  It was the I-94W I should have asked about.  On the I-94W he filled out on the plane for his visa waiver entry into the US, did he admit to his prior overstay on the question about having previously  violated US immigration law?

I doubt that he admitted that he overstayed a previous entry.  I didn’t know him then so this is just an assumption.  Should I be concerned that he will be denied entry altogether because he entered after overstaying and using a different passport?   Should I give up this idea?