Question about my Fiance

[tfbm78 0]

My Fiance came to the US on a Tourist Visa in July of 2007, she is a Venezuelan citizen. She ended up meeting a US citizen and married him in August 2008. The marriage was horrible and she got a divorce in July 2010. She left the US and flew home May 2012. She never became a US citizen and left on her own, she was not deported.

Will this cause an issue on our K1 visa? We have already filed and are waiting on our ROA2. I read online that possibly she may have a 3 year or 10 year ban. Ive also read that since she did not get deported it should only be 3 years? I also read that this might change because she got married to a US citizen here? I'm hoping someone knows for sure?

Thanks,

Bryan

[canadian_wife 1,785]

Well, simply marrying a US citizen does not do much for her. Did she adjust her status to a permanent resident? Did she submit any paperwork that would have altered her status? This is very important as the answers to the questions can determine if she has a ban.

Not being 'deported' is irrelevant. If she has unlawful presence in the US it can lead to a ban.

Good luck

[Pennycat 880]

Did she get a temporary green card? Or a permanent one?

If she was just living here on a tourist visa from 2007-2012 and never applied to adjust status, then she overstayed by over a year and could be subject to a 10 year ban. If she applied to adjust status, got her conditional green card and then never removed conditions, and then lived here after the conditional green card expired (which sounds like it could be from 2010 to 2012), then same thing.

Bans can be overcome by waivers. You just need to prove that it is a hardship to you that she's not allowed to live here.

[tfbm78 0]

Well, simply marrying a US citizen does not do much for her. Did she adjust her status to a permanent resident? Did she submit any paperwork that would have altered her status? This is very important as the answers to the questions can determine if she has a ban.

Not being 'deported' is irrelevant. If she has unlawful presence in the US it can lead to a ban.

Good luck

How do they determine a 3 year or 10 year ban?

[canadian_wife 1,785]

The length of the overstay. But you haven't even told us if there is an overstay. Please do that first

good luck

[tfbm78 0]

Did she get a temporary green card? Or a permanent one?

If she was just living here on a tourist visa from 2007-2012 and never applied to adjust status, then she overstayed by over a year and could be subject to a 10 year ban. If she applied to adjust status, got her conditional green card and then never removed conditions, and then lived here after the conditional green card expired (which sounds like it could be from 2010 to 2012), then same thing.

Bans can be overcome by waivers. You just need to prove that it is a hardship to you that she's not allowed to live here.

Can you explain more on the waivers? How that works? Please

[tfbm78 0]

The length of the overstay. But you haven't even told us if there is an overstay. Please do that first

good luck

Her visa was for 6 months and it expired April 2014. Is that what you mean?

[LionessDeon 2,060]

Her visa was for 6 months and it expired April 2014. Is that what you mean?

You stated she came here on a visitor visa then met someone and married. Did they ever file for an adjustment of status from her visitor visa??

Did she receive a conditional green card?

If not and she just remained in the USA all that time then she overstayed her visitor visa and that may trigger the ban.

Edited December 1, 2015 by LionessDeon

[Pennycat 880]

You're really confusing the issue by not answering the questions. I'll try to explain all the "ifs" but honestly it's a thousand times easier if you just answer.

Basically, a tourist visa is something that they put in your passport. It is generally good for 10 years. NOT meaning that you can come and stay here for 10 years, but that over a 10 year period of time you can come and go as long as you don't stay for more than 6 months at a time (and I believe not more than 6 months in a year).

The clock started ticking on when she needed to leave based on the day that she entered. If you overstay over 6 months and less than a year, you have a 3 year ban. Over a year is 10.

Now, the marriage to a US citizen complicates this. If she just got married and didn't file any other paperwork (to "adjust status") to that of a green card holder, then everything above is still true. Marriage does not do anything for immigration except "unlock" certain things that you're allowed to apply for. You don't apply for them, nothing changes. It is quite possible that she was here illegally/out of status/ overstay/ however you want to think about it for her entire marriage. Unless she applied to adjust status. Then, the previous overstay would have been forgiven and she wouldn't be accruing unalwful presence time (to count toward the ban) while she was waiting for that paperwork to go through. THEN, did she get the temporary green card yes or no? If no, and she divorced... I don't even know. I guess the clock would have either re-started from pause during the AOS process or would ahve started all over again. Either way, if she didn't get the green card and divorced, and stayed for 2 years, that's over a year and a 10 year ban anyway. If she had the temporary green card and then divorced, she still could have "removed conditions" to that of a permanent green card holder and then she wouldn't have any overstay at all, so no ban. She wouldn't STILL have that green card because living outside of the US for more than 6 months is considered abandoning the green card, but that would be great news for you because then you wouldn't have any problem at all.

This is why we need to know: did she apply to adjust status, did she get a green card and if so what type?

In terms of a waiver... nothing you can do now. You have to complete the whole process (interview etc), get rejected based on inadmissibility (due to the ban) and then file a waiver from there.

[Pennycat 880]

Also, generally, no matter what happened (if she was here illegally, if she was deported, whatever), be sure that she doesn't lie about it during the application process. They 100% will know, and misrepresentation (lying for immigration benefits) is a lifetime ban.

[Ash.1101 1,755]

Knowing if she tried to get her green card is very important.

If she didn't try to get her green card at all, then she came in July 2007, her visa would have expired Janurary 2008. Instead of leaving,she got married August 2008, then divorced 2 years later July 2010, THEN finally left May 2012.

If she DIDN'T even attempt to get her green card, she's looking at a 4 year and 4 month overstay, which is without a doubt a 10 year ban.

If she DID get her green card, did she remove conditions on it?


These are things we -need- to know before you can recieve any help. It doesn't matter in this case that she left on her own good free will, if she stayed for almost four and a half years past her visa date.

Also agreeing about not lying. They will know if she applied for a green card, they will know the dates of when she entered the US and when she left. They will know if she stayed here illegally.

Edited December 1, 2015 by Ash.1101

[tfbm78 0]

She never did any kind of paperwork for the green card at all. Just got married and then divorced. They never filed any paperwork at all to become a citizen.

[Pennycat 880]

She never did any kind of paperwork for the green card at all. Just got married and then divorced. They never filed any paperwork at all to become a citizen.

Then the marriage isn't a factor at all. She overstayed her tourist visa 4.5 years and is probably subject to a 10 year ban (probably-- I suppose anything is possible). Your next steps are to continue the process, and whatever you do, do not try to cover this up or lie about it, likely be denied on the grounds of inadmissibility, and then file a waiver to get around the ban. This isn't something you'll want to DIY-- it's much better to use an immigration attorney.

[aaron2020 11,651]

She never did any kind of paperwork for the green card at all. Just got married and then divorced. They never filed any paperwork at all to become a citizen.

It's much easier to give advice when you don't hide the ball.

Your fiancée has a 10 years ban for overstaying in the US for more than a year.

Her prior marriage is immaterial.

The K-1 will be denied because of the ban.

After the K-1 is denied, you can file for a hardship waiver.

She will need to disclose her prior marriage on the immigration forms. Omitting things here like you did in most of this thread will not end well. She will need to disclose her overstay and take her medicine. Lying or omitting information could lead to a lifetime ban.

[tfbm78 0]

Yes, we were 100% honest on all paperwork. We included her marriage and divorce papers with the application.

Is there somewhere I can read up on the hardship waiver's? Ive been searching and havent found any really good info on it.

Thanks

We even included her address's from when she lived in the US. We held back nothing at all.