What is the correct way to go about this process for our situation?

[Tdesign 0]

My Girlfriend was recently declined entry into the United States with her tourist visa. She was banned for 5 years citing visa fraud. There is no criminal history involved, just that she overstayed on a prior trip by 2 months. We plan on marriage but don't want to commit to that (outside of the US) in case she can't get her ban waived. She is going over the form (I-601) but we are having a hard time figuring out an order for what to file first. Should she file for a K1 first? Do I file a 1-129F? How do I say she is my fiance on that form? Maybe we are wrong on all of it! We just need a basic order of paperwork filing.

 

On a side note, I own a small business and as a result my income shows as that in the poverty level. Will this have an impact on my sponsorship of my girlfriend?

[Pennycat 880]

You'll need a waiver showing extreme hardship to you if she can't live here. This is something that lawyers are generally recommended for, but you may also want to check out the waivers forum. And yes. Unless you've got other assets to make up for the lack of income, that low of an income will negatively impact you sponsoring her (you'll definitely need a co-sponsor for the green card process, and likely just to get the visa in the first place). There's no flexibility on this. But your bigger issue is the ban. That can be tricky to overcome.

[Boiler 43,429]

She may have a bar for misrep as well, her visa was voided as soon as she overstayed. I212 for deportation can be filed at any time. Joint Sponsor if you do not meet the sponsorship requirements.

 

[Tdesign 0]

9 minutes ago, Boiler said:

She may have a bar for misrep as well, her visa was voided as soon as she overstayed. I212 for deportation can be filed at any time. Joint Sponsor if you do not meet the sponsorship requirements.

 

I misspoke. She did NOT overstay her first visit, I thought that was the case. Apparently she had an extension filed. Immigration banned her for earning income with a part time job.

 

As far as income. I have assets in the business and personal. How do I go about doing this? Co-sponsoring is probably not going to work...

Edited March 20, 2017 by Tdesign
add'l content added

[KULtoATL 1,551]

Earning an income even with just a part time job is not allowed on a B2. Any job for that matter really.

 

If you're doing the fiancee path, it should be you filing an I-129F with USCIS and wait for it to be approved first before she's to apply for K-1 on the embassy level. However, you guys would have to do something to deal with the ban first. This, I don't know the exact steps and forms 

 

@geowrian Any idea what's the best step for them from here? Same as the guy whose Belizean fiancee got banned?

[geowrian 22,335]

28 minutes ago, KULtoATL said:

Earning an income even with just a part time job is not allowed on a B2. Any job for that matter really.

 

If you're doing the fiancee path, it should be you filing an I-129F with USCIS and wait for it to be approved first before she's to apply for K-1 on the embassy level. However, you guys would have to do something to deal with the ban first. This, I don't know the exact steps and forms 

 

@geowrian Any idea what's the best step for them from here? Same as the guy whose Belizean fiancee got banned?

The USC can still file the I-129F petition, then the beneficiary files for the K-1 visa. However, it will be denied due to the ban. At that point, the waiver is needed to overcome the ban and get the visa.

 

As for when the waiver can be applied for, it depends on exactly what the ban is for. Unauthorized work is a valid reason for the ban, but was the ban actually for the unauthorized work or was there misrepresentation involved as well? If she claimed to have not worked illegally at any point (visa application, to a CO, or to CBP), then misrepresentation is on the table.

 

If the bar includes misrepresentation, then both I-601 and I-212 waivers are needed. The I-212 covers the unauthorized work bar, but the I-601 would be needed for the misrepresentation. I believe the I-601 can only be filed after the denial in that case. The I-212 can be filed any any time. But I will definitely defer to others, and would suggest seeking an immigration attorney in this case. While obtaining a hardship waiver for a K-1 is possible and others have done so without issues, I think it's generally a better case with a CR-1 since there is a legal relation (spouses) between the petitioner and beneficiary.

 

This process will not be quick. The waivers required will likely add close to a year (or more) to the processing timeline, and are not a guarantee.

Edited March 20, 2017 by geowrian

[Boiler 43,429]

I212 covers the Deportation and unlike the I 6011 can be filed at any time, different requirements.

 

i601 and I 212 when both are needed needed and then would be filed together after the visa refusal, so the issue is is this a solo I 212 or will an I 601 be needed.

[geowrian 22,335]

28 minutes ago, Boiler said:

I212 covers the Deportation and unlike the I 6011 can be filed at any time, different requirements.

 

i601 and I 212 when both are needed needed and then would be filed together after the visa refusal, so the issue is is this a solo I 212 or will an I 601 be needed.

Thanks! I had something (someone? ) kicking me in the back of the head saying that was the case, but I just blamed it on a headache.

Edited March 21, 2017 by geowrian

[Tdesign 0]

Thanks for the answers folks. Trying to wrap my head around all of these things is a full time job.

 

I'm worried about my income. What will happen? Will immigration deem me unfit to sponsor? How does that work?

[geowrian 22,335]

4 minutes ago, Tdesign said:

Thanks for the answers folks. Trying to wrap my head around all of these things is a full time job.

 

I'm worried about my income. What will happen? Will immigration deem me unfit to sponsor? How does that work?

For a K-1, an I-134 (from you) would be submitted at the interview. This shows proof of your ability to support the intending immigrant so they won't become a public charge. This requires 100% of the federal poverty level for your household (or 3x the difference in assets) as a minimum. Some COs may accept a joint sponsor, while others may not.

 

For a CR-1, an I-864 (from you) would be submitted at the interview. This requires 125% of the federal poverty level for your household (or 3x the difference in assets) as a minimum. Joint sponsors are permitted if you don't meet the requirements.

 

Both forms require proof of income and/or assets, such as current pay stubs, a letter from your work, tax transcript (1 year for I-134, 3 years for I-864), etc.

 

Poverty guidelines:

https://www.uscis.gov/system/files_force/files/form/i-864p.pdf

[Pennycat 880]

Check out the guide here.

 

It's a three step process from now to green card (assuming no problems, which you might have):

Step 1: You petition USCIS to let her apply for a K1 visa through you. USCIS will make sure that you guys meet the baseline requirements (are legally able to be married to each other, have seen each other in the last 2 years, you do not have certain criminal histories on your record, you as a couple don't set off red flags for human trafficking or terrorism or all the stuff DHS is concerned about). If you pass this test, they pass you along to the State Department, represented by a US embassy abroad, which is

 

Step 2: She applies for the K1 visa. At some point after USCIS sends your application to the embassy, the embassy will contact her with a list of things she needs to do and documents she needs (medical appointments, legal documents, application forms, including an affidavit of support from you demonstrating that you meet the income requirement). This is where there's a deeper dive done on her and her background and your relationship. *If the visa is issued*, she moves to the US on that visa, you get married and move on to...

 

Step 3: Apply for her permanent residency (aka green card aka "adjusting status"). THIS is the step where 100% for sure if you do not meet the income requirement, she will be rejected. The embassy in theory has some leeway on this for reasons (the affidavit of support you submit at that point is not legally binding; the one at this step IS) but in practice, they're not going to issue someone a visa who will be unable to adjust status. 

 

The way you solve the income problem is to get a co-sponsor. It can be any US citizen who is able to meet the income requirement for their own household.

 

Your significantly bigger issue is that you may not get through Step 2. Because she has a ban. It's a ban from any visa, fiance, work, spouse etc. If that ban is still in effect, her visa will be denied in Step 2 *and then* you apply for the waiver.  So Step 2.5. That's the point at which a lawyer is usually recommended. Here's the forum on Visajourney with other folks going through the waiver process.

 

If you want to go down this road, you simply start out at Step 1: do everything in the guide section and wait for them to forward it off to the embassy. 

Edited March 22, 2017 by CatherineA

[Pennycat 880]

7 minutes ago, geowrian said:

For a K-1, an I-134 (from you) would be submitted at the interview. This shows proof of your ability to support the intending immigrant so they won't become a public charge. This requires 100% of the federal poverty level for your household (or 3x the difference in assets) as a minimum. Some COs may accept a joint sponsor, while others may not.

 

For a CR-1, an I-864 (from you) would be submitted at the interview. This requires 125% of the federal poverty level for your household (or 3x the difference in assets) as a minimum. Joint sponsors are permitted if you don't meet the requirements.

 

Both forms require proof of income and/or assets, such as current pay stubs, a letter from your work, tax transcript (1 year for I-134, 3 years for I-864), etc.

 

Poverty guidelines:

https://www.uscis.gov/system/files_force/files/form/i-864p.pdf

I could be wrong/outdated but I've long been under the impression it's more an embassy/country policy than a CO discretion thing re: joint sponsor for K1. 

 

That said, it's easier financially (if they need a co-sponsor) to go CR1, and possibly a better case for the waiver, which is the big concern here.

[geowrian 22,335]

Just now, CatherineA said:

I could be wrong/outdated but I've long been under the impression it's more an embassy/country policy than a CO discretion thing re: joint sponsor for K1. 

 

That said, it's easier financially (if they need a co-sponsor) to go CR1, and possibly a better case for the waiver, which is the big concern here.

It certainly is more common with certain embassies, but it's still up to the discretion of each CO. For instance, Manila generally does not permit a joint sponsor for the I-134, but there have been instances of people on VJ doing it with a family member. Obviously I cannot verify this, but I don't have a reason to disbelieve them either.

 

Agreed.

[Tdesign 0]

On 3/22/2017 at 6:30 PM, CatherineA said:

Check out the guide here.

 

It's a three step process from now to green card (assuming no problems, which you might have):

Step 1: You petition USCIS to let her apply for a K1 visa through you. USCIS will make sure that you guys meet the baseline requirements (are legally able to be married to each other, have seen each other in the last 2 years, you do not have certain criminal histories on your record, you as a couple don't set off red flags for human trafficking or terrorism or all the stuff DHS is concerned about). If you pass this test, they pass you along to the State Department, represented by a US embassy abroad, which is

 

Step 2: She applies for the K1 visa. At some point after USCIS sends your application to the embassy, the embassy will contact her with a list of things she needs to do and documents she needs (medical appointments, legal documents, application forms, including an affidavit of support from you demonstrating that you meet the income requirement). This is where there's a deeper dive done on her and her background and your relationship. *If the visa is issued*, she moves to the US on that visa, you get married and move on to...

 

Step 3: Apply for her permanent residency (aka green card aka "adjusting status"). THIS is the step where 100% for sure if you do not meet the income requirement, she will be rejected. The embassy in theory has some leeway on this for reasons (the affidavit of support you submit at that point is not legally binding; the one at this step IS) but in practice, they're not going to issue someone a visa who will be unable to adjust status. 

 

The way you solve the income problem is to get a co-sponsor. It can be any US citizen who is able to meet the income requirement for their own household.

 

Your significantly bigger issue is that you may not get through Step 2. Because she has a ban. It's a ban from any visa, fiance, work, spouse etc. If that ban is still in effect, her visa will be denied in Step 2 *and then* you apply for the waiver.  So Step 2.5. That's the point at which a lawyer is usually recommended. Here's the forum on Visajourney with other folks going through the waiver process.

 

If you want to go down this road, you simply start out at Step 1: do everything in the guide section and wait for them to forward it off to the embassy. 

Thank you for this very thorough post Catherine, this is VERY helpful. 

[Tdesign 0]

I have one more question, though probably a stupid one. Is there any way for my girlfriend to return to the US while this whole thing is processing? I just want to be clear because she mentioned it being a possibility.