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Thread: K1 Overstay

  1. #1
    Please help me and thank you much:

    I met this Cambodian girl who came to the U.S in October 2005 with K1 visa (Her visa expire April 2006). After the relationship with her petitioner did not work out, I am a US citizen and I met her in January 2006, I love her so much so I married her in May 2006. I tried to apply for her to stay here but when interview they say that she has to go back.
    It is now Dec 2006, she has overstayed her visa. My question to you is that if she go back now will it effect her ability to get back here when I apply the I-130? What do I have to do, we already reserved the ticket but we are so sad and worried.

  2. #2
    Please help me and thank you much:

    I met this Cambodian girl who came to the U.S in October 2005 with K1 visa (Her visa expire April 2006). After the relationship with her petitioner did not work out, I am a US citizen and I met her in January 2006, I love her so much so I married her in May 2006. I tried to apply for her to stay here but when interview they say that she has to go back.
    It is now Dec 2006, she has overstayed her visa. My question to you is that if she go back now will it effect her ability to get back here when I apply the I-130? What do I have to do, we already reserved the ticket but we are so sad and worried.

  3. #3
    So, what you're trying to have us believe is that she didn't understand the restrictions on her K-1 visa? Under the terms of her entry to the United States, she had ninety days to either marry the petitioner...and ONLY the petitioner...and then apply for adjustment of status (I-485), or to leave the country.

    Given that she chose not to marry the petitioner, she was obligated to leave the country within ninety days.

    Why is it that everyone seems to believe that disregarding America's immigration laws will carry no consequence and can be ignored at will?

    Your wife has no choice but to return to her country of origin. As an American citizen, you can sponsor her for immigration...but, because of her immigration history and overstay, you will require a waiver of inadmissibilty. This process will take a long time, and the waiver may not be granted.

  4. #4
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by vutng:
    Please help me and thank you much:

    I met this Cambodian girl who came to the U.S in October 2005 with K1 visa (Her visa expire April 2006). After the relationship with her petitioner did not work out, I am a US citizen and I met her in January 2006, I love her so much so I married her in May 2006. I tried to apply for her to stay here but when interview they say that she has to go back.
    It is now Dec 2006, she has overstayed her visa. My question to you is that if she go back now will it effect her ability to get back here when I apply the I-130? What do I have to do, we already reserved the ticket but we are so sad and worried. </div></BLOCKQUOTE>
    If she goes back, she will be subject to a three year ban. She will then need to apply for a waiver to remove that ban. I would suggest contacting an immigration lawyer to see what your options are.
    "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre

  5. #5
    Under the current law there is NO WAY that your wife can adjust her status here in the US. If a lawyer tells you otherwise, he is just trying to take money from you.

    Your wife came with a K-1 visa. That is a very special visa that can entitle her to residency ONLY if she marries her petitioner. She was supposed to leave the country within 90 days if there was no marriage (no excuses accepted). Right now, she is in the same situation as if she were an EWI.

    The only way for her to adjust her status is leaving the US an applying in her country. She will be denied a visa (because she overstayed) and she will need to file a waiver which may be (or may not be) approved depending on the extreme and unusual hardship that her absence is causig to you the US citizen (those are the exact words in the law. It is not any hardship is has to be extreme and unusual).

    I know it's tough, but they are the consequences of your wife's actions.

  6. #6
    So could you please tell me: is it possible for her to come back here after the ban?....or will she be able to come back?

  7. #7
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by vutng:
    So could you please tell me: is it possible for her to come back here after the ban?....or will she be able to come back? </div></BLOCKQUOTE>
    It is very probable she may be able to come back after the ban; however, you and her do have the option of filing for a waiver at the US Embassy to get approved to come sooner. She will need to file form I-601 and state the facts and circumstances of her previous relationship and why she was not able to go back in a timely manner. I would recommend an immigration attorney to help you throgh this in order to give you the best possible chance.
    "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre

  8. #8
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Cayita:
    Under the current law there is NO WAY that your wife can adjust her status here in the US. If a lawyer tells you otherwise, he is just trying to take money from you.

    Your wife came with a K-1 visa. That is a very special visa that can entitle her to residency ONLY if she marries her petitioner. She was supposed to leave the country within 90 days if there was no marriage (no excuses accepted). Right now, she is in the same situation as if she were an EWI.

    The only way for her to adjust her status is leaving the US an applying in her country. She will be denied a visa (because she overstayed) and she will need to file a waiver which may be (or may not be) approved depending on the extreme and unusual hardship that her absence is causig to you the US citizen (those are the exact words in the law. It is not any hardship is has to be extreme and unusual).

    I know it's tough, but they are the consequences of your wife's actions. </div></BLOCKQUOTE>
    I would disagree. She is not on the same level as an EWI, but overstayed her visa. The special circumstances with K1 is that if one does not marry within 90 days, there are no exceptions to extend the visa or change the visa within that time frame. Furthermore, because of the circumstances, she can file the waiver. I am not sure if the I-130 has been filed yet from the OP, but it does not appear so.

    What should have happened if after the OP and the spouse married, they should have filed for the I-130 and I-485 with USCIS. Since the peitioner is a USC, USCIS waives the immigrants visa overstay, but may impose a fine for approval.
    "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre

  9. #9
    Could you please be kind to tell me what the EWI meant? And she has no problem to come back here right?

    Thank you so much

  10. #10
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by vutng:
    Could you please be kind to tell me what the EWI meant? And she has no problem to come back here right?

    Thank you so much </div></BLOCKQUOTE>
    EWI means Entry without inspection. If you go through a designated port of entry, like an airport when you arrive, then EWI will not apply.

    As I stated, I would suggest that she file the I-601 form to apply for the waiver to be readmitted. Please obtain an immigration attorney for this to give both of you the best chance.
    "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams on Defense of the boston Massacre

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