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My wife and I have what I believe an unusual case. It began 8 years ago when I fell in love with a beautiful Mexican girl while on vacation in Mexico. I stayed almost 2 years in Mexico, and we had a little girl within that time period. I came to the US to begin her immigration process. Back then there were lots of unknowns, having never dealt with the INS previously. We sought help from an Attorney who assisted us with a K1 Visa. A year later she was admitted into the US on the K1 Visa for the purpose to marry a US citizen (me) within 90 days. We did that. 6 months later we went down to our local INS office to continue with the next step in the process, which we knew we needed to apply for permanent residency. When we arrived I presented them with her passport/K1 visa and asked them what forms would be needed. The shorter version of this story is that they told us she now was in violation of her original visa. They told us that she was subject to deportation as her visa had expired. Being very ignorant I said, no she wasn't, we married within 90 days and showed them a certified copy of our marriage license. They said, that that was only part of what we had 90 days for, that the other missed part was to file an I-485 (adjustment of status). That she could proceed with it anyway, but she needed to be aware that overstays are taken very seriously and that she could be ordered for removal should she now apply while in the US on an expired visa in violation of the law. Of course never having broken any law before and trying to do things right, this seemingly remedial mistake quickly sent us into a panic. After a year of separation we were in no hurry to separate again and definitely weren't about to risk her deportation. We sought advice from several attorneys over the next 2 years. They all had confusing, conflicting and very inconsistent advice; it all could be summed up by saying, expensive, time consuming, lengthy (as much as 4 years) and no guarantees. The seemingly best advice came from the INS at the time as well as her local Mexican consulate. This advice can now in retrospect be seen for its errors. But back then I didn't know what I know now, nor did the plethora of information and resources on immigration issues exist online as it does today. Their advice was not risk an order for removal, which carries serious legal repercussions and challenges. They suggested to abandon this visa altogether by returning to Mexico, and there reapply for permanent residency. So that is what we have done. Now 6 months after we applied I learned of the K3 option and also applied for that. The K3 has been approved and we are waiting for the packet from the Ciudad Juarez Consulate. Meanwhile, the I-130 petition has just been approved (3 weeks after the K3). Some other, maybe important factors, is we have 2 children involved, our daughter is with me in the US, as she is starting the 1st grade this year. Our son is in Mexico with my wife, as he is only 2. Anyway on with the question. I have now been told that our interview in Ciudad Juarez may not be the end of my family's separation. That due to her previous overstay they may require a waiver. I have researched this as much as I can to try a get some definitive answer whether or not a waiver requirement is possible given some important facts in our situation. I'm hoping that someone as an immigration expert who has many more years of experience and research knowledge may be able to offer a definitive answer. First, she was never ordered for removal and under INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY #9 part B appears the only reference to overstay violations, this part B is under #9 it's titled ALIENS PREVISOUSLY Removed which isn't the case with my wife. The second important fact is that the reason we where told to leave country then to apply for the I-130, is that she would not be applying for permanent residency while in violation of her original visa. So I'm assuming that during the interview, the main focus of the interview with be to determine admissibility based on a marriage in good faith and on the merits of the current petition not on any undocumented or recorded violations, and abandonment of a previous K1 visa. Is this correct? That is my question. Will she most likely need a waiver and deemed ineligible for a visa due to an overstay, which by the way will only be known due to our honesty and voluntary explanation of this overstay?
Thanks for any and all help that you can provide.
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