Hi Everyone,

I am fairly new to VJ and still gathering all the information I need to send in for the I-129F forms. It would be so easy but my dear finace has a complicated case. I was wondering if any of you have had a similar situation and could offer some guidance. Here is the story.

My fiance is from Turkey. When he was in the U.S., he overstayed his visa by a 1 year 8 months. He did leave the U.S. on his own and went back to Turkey, but to complicate things more, while he was here, he got a driver's license and he also worked and to further complicate things, he even paid Income Tax. Which, by the way, I think was horrible for our government to accept since he did not have a social security number.

Anyway, I have all of his addresses while he was here in the U.S. and the dates of each one. Of course this will show that he was in the U.S. for almost 3 years. And while I was putting everything togehter last night to mail, it dawned on me that I am going to have to put his jobs he had here in the U.S. too. This is only going to raise one red flag after another. So I emailed him last night asking him for his jobs that he had while he was here in the U.S. (no doubt he was working without an AED)

So, my question to all is, has anyone had anything even a little similar to this situation and what did you do?

I am so fearful that it does not look good for us!!!

Thank you,
Wendy

Hi Wendy,

You might want to check out the waivers forum. I believe that you will have to file a waiver because of the overstay, the people over there will know more. Your situation is not uncommon.

he probably had an itin. or are you saying he should not pay taxes at all?

Yeah, why shouldn't he pay?? Even the illegals are paying . . . with someone elses SSN many times . . LOL, sorry, it is such a sore point at sometimes.

Not sure you can get the advice that you need in this particular forum, but it sounds like you have some work ahead of you to figure out how to get all this sorted out and explained during filing.

Good Luck!

Thank you. I will check out the waivers forum. Good suggestion.

Its not uncommon at all Wendy. Def good advice to check out waivers forum - you can also call USCIS to confirm if you like, but I'd say you'd have a better chance getting the info here on VJ. It seems are are preparing yourself and that is the first step! Good for you!

WELCOME TO VJ!!!

He will need to file a waiver for the overstay because he has a 10 year ban. The fact that he was able to get a DL is not significant. The fact that he worked illegally will be forgiven via his marriage to you, a USC. ITN numbers are available to people who do not have social security numbers in order to pay tax. This is a good thing in his favor - not a bad one.

USCIS does not care if he overstayed - this is not a "condition" for I-129F approval. And you are required by law, penalty of perjury and fines and/or imprisonment to tell the truth on the forms therefore you need to put all of his job information in the US. Again, it's not an issue for I-129F petition approval. The issue will come at the interview where he will be denied due to his illegal presence and will need to submit a 601 waiver and a hardship letter from you. I suggest you check out the 601 forum on immigrate2us.net if you have not already - there are many people in similar situations and you could start to get a good understanding of what the hardship letter will need to entail and what the timeline is like for waiver adjudication/approval rates in Turkey.

It sounds like it might not be as bad as you think. The waiver sounds very promising. I'm crossing my fingers for you!
Christine

Hi Kitkat1,

Thank you so much for all that information. I have checked out the afore mentioned website and I am finding it very helpful. I looked at some of the hardship letters so I could follow a similar format. I was reading on that website that at the interview my fiance should have his waiver and hardship letter in hand. Is this true?

Thank you again for your helpful information.

Christine - Thank you for your good wishes!!!

Hi Kitkat,

I am wondering what your basis was for saying illegal work in the US can be forgiven via marriage to a USC. I am curious because I am on K-1 and just worked and did not overstay. I hope you can enlighten me with this.

Thanks,
cd

USCIS cannot use an overstay or illegal work as a reason to deny AOS if you are married to a US Citizen and entered the country legally.

http://www.americanlaw.com/aos.html

Unauthorized Employment, Unlawful Status or Failure to Maintain Status
Aliens who have engaged in unauthorized employment, who are not in lawful status at the time of filing of the adjustment application or who have failed to continuously maintain status since their entry into the United States are barred from adjustment of status. However, this statutory bar does not apply to immediate relatives of United States citizens or certain special immigrants.

^^ I always thought that was if the foreign spouse had remained in the US. If the OP's fiance has returned to Turkey, doesn't that mean it WON'T be overlooked now in the K1 process?

If the person left the country, went through the waiver process for the overstay, entered on a legal visa, there is no issue of previous work at AOS. Meaning, it doesn't matter if the person worked illegally previously - still forgiven at AOS based on the marriage to a USC. It won't be "overlooked" exactly - it's acknowledged on the I-129F paperwork but at the consulate level, they will deal with the overstay - illegal work *could* come up but rarely does since USCIS forgives it at AOS. Hope that makes sense.



Wendya, it's definitely a benefit to have the hardship letter and evidence prepared. Some consulates allow it to be submitted right then and there and if you have it ready, you won't lose any time. They will require the actual waiver to be filled out there, as they need to put in the denial code, but you could have the rest of the form ready and filled out. You also need to pay a fee - $265 I think - as well as have fingerprints taken and pay a fee for this - $85 I think.

Thanks, that is for when you are adjusting status in the US then.

Right - but it's also unlikely to be an issue at the consulate level since they know it is forgiven by USCIS at AOS (and it's included on the original I-129F that would have been approved so it's not like they don't know about it - they just don't make it an issue).

Do you think it would have been better if we are married now and apply for spouse visa instead? How about if I have a ban for 5 years for previously working on a valid tourist visa? (Just asking...thanks)

If you are already facing a 5 year ban and need a waiver, it shouldn't make much difference because normally waivers are available to fiances or spouses of USCs. If the waiver requires a hardship letter, sometimes it's easier to prove hardship as a spouse, but that usually applies in cases where the non-USC was contributing to income and child-rearing while in the US and hardship to the USC is based on now not having them there. Cases where illegal work is forgiven via marriage is when the non-USC already has a valid visa and is in the country i.e. entered on a visitor visa, overstayed, worked illegally, married a USC, never left the country, and applied for AOS. If you are currently out of the country and know that you are ineligible for a visa for 5 years, whether you or married or not will not change this. What are the details of the ban? What does your lawyer say (I think I remember that you have a lawyer, right?)

Yes, L.S. is helping us with the waiver and the K-1 process. We are just awaiting for the result of the I-212, and hopefully we'll get approved soon. I appreciate your information.

I still don't understand about your 212 in country filing. Were you deported? I know that in some cases it's an option to file in the country, but normal procedure is to file upon visa denial. Is there a reason you chose in country? It takes so much longer, it just seems like a strange decision. Wht about the illegal work - was that included?

I think only I-601 should be filed at the local DHS office after your visa denial. If I was required to file for I-601, I would have needed to refile my I-212 with the I-601. My I-212 is for working on a valid tourist visa.

Why do you need it? Can't you skip it altogether knowing that once you have your visa and are married, it will be forgiven? Very confusing . . .

I was expeditiously removed upon re-entry on a valid tourist visa due to previous work. They gave me a 5 year ban. I am outside the US and only a fiancee.

Does that mean automatic denial of the K1 and the need to file the 212 at your consulate or will you wait for the 212 approval and then file your I-129F?

We filed for the I-212 at the CSC after we are approved with the I-129F. I had my interview and we are now waiting for the result of the waiver.

And did they deny the K1 at the interview pending results of the 212? I guess it wasn't all that strange to them that you did it that way then.

No, I'm on AP until I get the results. I think you can do that with I-212, because L.S. said that if we had to file the I-601 too, then we would need to do it at the consulate. Good thing I didn't need the I-601.

Might I suggest that you address this entire situation along with any physical evidence that you can think of with the initial petition? It won't stop the denial if that is standard procedure, but if the USCIS is aware of this from the start then hopefully it will cut corners later. Think about it, they will already know everything anyway, you might as well take the opportunity to present your case while you can.

Because it doesn't work that way. The USCIS only processes the initial petition and in the case of an I-129F for a K1, they are only looking for the bare minimum - that the petitioner is a USC, that the couple has met in the prior two years, and that any IMBRA information is provided. That's it. Even when it's clear on the petition that person entered the US illegally and stayed, for example, the USCIS service center can't do anything. They can only process the petition and pass it to the consulate. It's up to the consulate to approve or deny, and if they deny, they have to first determine if the person is eligible to file a waiver in the first place. You can't "present your case" until they give you the option to do so -- at that time you file the waiver and hardship letter. While obviously there are some exception when people file in the US i.e. cd1111, it is not the norm when a person is interviewing at a consulate outside the US.