Should I apply for a K1 for my Mexican Fiance

[Kimant 0]

I met my boyfriend 3 yrs ago in the US. His Visa expired 2 mos after we met but he stayed. He moved back to Mx 3 mos ago and I moved here 1 mo ago. A Mx atty told us that because he overstayed his Visa it wouldn't matter if we got married here - the US may not allow him to enter the US as my spouse. Mx atty suggested I file the K1 from Mx but that it would probably be denied but at that time we could ask the US Embassy here to forgive him for his past "sin." We don't know how the US would know he overstayed since he didn't work under his real name. Is what the Mx atty stating sound right?

[Kathryn41 3,207]

Your Mexican lawyer has given you good and accurate advice. You can apply for a K-1 and at the interview stage it will be denied because of the overstay. At that time you can apply for a waiver (read the guides here at the top of the waiver forum), or he can wait out his automatic 10 year ban and the two of you live in Mexico.

How will they know? Because you never, never, never lie to USCIS. Where the application requests address and employment, you fill them out honestly. When they ask where you met, you tell them that you met in the US. During the interview which is necessary they will ask him questions about the details of your relationship. How will you keep your stories straight? Seriously, there are so many traps waiting for you if you or he lie about the details of your meeting and living and working in the US that the lies will be discovered by USCIS. They are experts at ferreting out such details. They have had years of experiencing at doing just that - and they start out suspicious of every relationship to begin with!

Now, the biggest reason not to lie and deny being in the US? Right now, he faces a 10 year ban that is waiverable. If he lies or misrepresents himself to USCIS, he receives a lifetime ban from ever entering the US legally ever again - and it will probably not be waiverable. So, listen to your attorney. You may wish to retain his services since he has given you the right information even if it was something you didn't want to hear.

You know the really ironic part of this? If he hadn't left the US 3 months ago and you two had got married, he would have been allowed to file for permanent residency from within the US, and his out of status overstay would have been forgiven when it was approved.

Good luck to you. Do read the guides at the top of this forum, and check out the section on waivers. http://www.visajourney.com/forums/index.php?showforum=113

You may also wish to visit the regional forum that discusses Mexican citizens and their US partners.

http://www.visajourney.com/forums/index.php?showforum=96

Edited June 29, 2008 by Kathryn41

[Kimant 0]

Is the ban really for 10 years? I have read that it's only for the amount of time that the person stayed in the US illegally?

[malego77 2]

You can get married in Mexico and apply for a K3 or IR1/CR1 visa. Or well, you can apply for a K1 visa. Anyway, when the consul will ask him about her overstay in USA, the consul can decide if he need to fill it out a waiver in Cd Juarez. This will happen to any choice to bring him to USA. You could get married inside USA when he overstayed and he could adjust status in USA, but the problem is that he got out USA before... Anyway, still there are choices to bring him to USA. Good luck.

[Kimant 0]

You can get married in Mexico and apply for a K3 or IR1/CR1 visa. Or well, you can apply for a K1 visa. Anyway, when the consul will ask him about her overstay in USA, the consul can decide if he need to fill it out a waiver in Cd Juarez. This will happen to any choice to bring him to USA. You could get married inside USA when he overstayed and he could adjust status in USA, but the problem is that he got out USA before... Anyway, still there are choices to bring him to USA. Good luck.

Thanks - the only reason we had to come back was because he had to finalize his divorce. It would have been real convenient to have gotten married in the U.S.

[Kathryn41 3,207]

If the person has been without status for 180 days or less, there is no ban. If it is between 6 months and 1 year, then there is a three year ban. If it is more than 1 year, then it is a 10 year ban. Your original post said that you met him 3 years ago - 2 months before his visa expired, so that sounds like he has been out of status for 2 years and 10 months. Subtract the 3 months that he has been in Mexico since he left and it is still 2 years and 7 months that he was in the US without legal status. The 10 year ban kicks in at being 1 year out of status. The ban is not for the same amount of time for which he was in the US illegally.

If he had to be in Mexico to complete the divorce then you really didn't have any other option. Whatever you do, don't lie to US immigration about the overstay and hope they won't find out. It would be much, much worse. It sounds like you have a knowledgeable lawyer available to you. Talk to him about the waiver. Good luck.

Edited June 29, 2008 by Kathryn41