overstay fiance, scared of losing my love

[ninmo068 1]

Hello everyone from One of the Newbies!

To say the least, a little scared of losing my love, due to mistiming, the stupid volcano, and lack of financing to comply, thx to high plane ticket prices.

After visiting my love twice in his country, needless to say I was in heaven when he stated he was coming to the US to see me. The problem started, due to lack of knowledge of how our country works, my love came to the US on a visa waiver. After weeks of heaven, long talks, and our relationship growing every day. We started having talks change from how wonderful it is to how could we not do this forever.

I filed for divorce from a long estranged ex that was due to just pure laziness, and then hope of OUR relationship starting. Well needless to say the not very good divorce lawyer, delayed the filing which caused my marriage not to be done in time. So then the heartbreaking decision came upon us, that we would start having to prepare for him to return to his country. Only to have the Volcano blow up, the already High plane tickets went higher, and we didn't find out that an extension could have been sought until after it ended.

So now I can't send him home, he has to overstay, and we are very afraid of what to do now. We talked to a lawyer who agrees that we appear to be stuck. I can prove everything, the timing, the divorce, the payments, of why we are in this problem now.

Question is..... Do you think that i am going to lose him forever due to how our situation has developed? When we started this we were good friends online of course, then a visit / vacation it became a little more, then a visit / vacation became a little more then again. There was no intention of Marriage, or him staying here. Matter of fact i wanted to stay there.. LOL. Any thoughts, advise, possible issues that we could face would be appreciated.

[LT.Nora 7]

Well it all depends how long has he overstayed? Read USCIS website, they seem flexible for people who overstay their visa due to not being able to fly home because of the vulcano.

If he stays here, he better be prepared for the "fun" of being an illegal (talking from experience): not being to able to work, not being able to drive (equal to not having legs, if you don't live in a big city) and just generally feeling dehumanized. That's really something to consider.

On the better note, if you are planning on getting married after your divorce is finalized, you can file for adjustment of status and if approved he would receive a conditional green card.

Hope that helps a little..

[ninmo068 1]

Well it all depends how long has he overstayed? Read USCIS website, they seem flexible for people who overstay their visa due to not being able to fly home because of the vulcano.

If he stays here, he better be prepared for the "fun" of being an illegal (talking from experience): not being to able to work, not being able to drive (equal to not having legs, if you don't live in a big city) and just generally feeling dehumanized. That's really something to consider.

On the better note, if you are planning on getting married after your divorce is finalized, you can file for adjustment of status and if approved he would receive a conditional green card.

Hope that helps a little..

[ninmo068 1]

Well hopefully in total, his overstay will only be 42 days. That will be just after my divorce is final, and we could be married.

[Rob and Jill 82]

Well hopefully in total, his overstay will only be 42 days. That will be just after my divorce is final, and we could be married.

Why would he come over with a one way ticket for a "visit" or was there another reason the ticket prices are effecting his trip home now?

I will tell you this much. I went overseas on a return ticket without a booked return date. I was grilled like CRAZY as to when & how I was going to get home.

Edited May 18, 2010 by Rob and Jill

[ninmo068 1]

Why would he come over with a one way ticket for a visit?

He didn't have a one way. He came into the airport where i was on vacation, we spent the vacation together. We then went back to my home... and enjoyed my city. His ticket was for quit a length, but when it came time for him to go back we missed the flight. Then he rebooked and a snow storm hit, and the airline wouldn't let him rebook again. So now we are stuck with me paying for the ticket back. Just has been mistiming over and over.

[VanessaTony 3,567]

Well hopefully in total, his overstay will only be 42 days. That will be just after my divorce is final, and we could be married.

From everything I've read recently, AOSing from the VWP isn't possible once the I-94 is expired.

Overstaying right now isn't a big issue. He might make himself ineligible for the VWP but he's not going to get banned and it won't stop him applying for a spouse/fiance visa. He should go home (he won't have a ban unless it's over 180 days, then it's a 3 year ban, 365 days = 10 year ban) and you should apply for a fiance (k1) or spouse visa (cr1). Personally I think the CR1 is the best option.

There was a thread yesterday or the day before about a couple that applied for AOS but didn't send the right documents so by the time they sent it again he was past the I-94 expiration date and officers came to his door and detained him. I think you should look into this right now. You don't want to risk it if this is what you're thinking.

Above all else KNOW that overstaying right now DOES NOT stop him from getting a spouse or fiance visa. He WILL NOT have a ban from it. He will need to note it where asked but otherwise, not an issue. Make sure you keep ALL paperwork about the volcano etc so if he wants to apply for a visitor visa down the track you have proof of why the overstay was "accidental".

Good luck!

Edited May 18, 2010 by Vanessa&Tony

[ninmo068 1]

From everything I've read recently, AOSing from the VWP isn't possible once the I-94 is expired.

Overstaying right now isn't a big issue. He might make himself ineligible for the VWP but he's not going to get banned and it won't stop him applying for a spouse/fiance visa. He should go home (he won't have a ban unless it's over 180 days, then it's a 3 year ban, 365 days = 10 year ban) and you should apply for a fiance (k1) or spouse visa (cr1). Personally I think the CR1 is the best option.

There was a thread yesterday or the day before about a couple that applied for AOS but didn't send the right documents so by the time they sent it again he was past the I-94 expiration date and officers came to his door and detained him. I think you should look into this right now. You don't want to risk it if this is what you're thinking.

Above all else KNOW that overstaying right now DOES NOT stop him from getting a spouse or fiance visa. He WILL NOT have a ban from it. He will need to note it where asked but otherwise, not an issue. Make sure you keep ALL paperwork about the volcano etc so if he wants to apply for a visitor visa down the track you have proof of why the overstay was "accidental".

Good luck!

Thank you for your insight to this.... TO ALL of EVERYONES insight. I am sure there are alot of people scared of losing the person they love over paperwork. I have all the paperwork from EVERYTHING i even have were my divorce judge said on record, that she would waive the 60 day rule for my divorce on record if she could. Due to she understood what it caused down the road for my life now and the immigration issue. CR-1 ?? what is the difference.. and the attorney i talked to mentioned the i-485. What is that?

[Summerluv 0]

Sorry if I sound harsh... But if you don't even know what I-485 is, you obviously have done no homework at all. There are TONS of information available online. I would really suggest start Googling first, then come here and ask questions on things you don't understand. You will get SO MUCH MORE outta this forum if you ask more specific and well-informed questions.

Sorry again, don't mean to offend you, just think if you do some research it will really help you greatly.

[ninmo068 1]

Sorry if I sound harsh... But if you don't even know what I-485 is, you obviously have done no homework at all. There are TONS of information available online. I would really suggest start Googling first, then come here and ask questions on things you don't understand. You will get SO MUCH MORE outta this forum if you ask more specific and well-informed questions.

Sorry again, don't mean to offend you, just think if you do some research it will really help you greatly.

LOL... I understand. The i-485 is the Application to Register. Permanent Residence or Adjust Status. I was trying to remember off the top of my head which form was which, Due to i don't have the information that the attorney completed in front of me. I am new to the process... and i think that some of my smarts is a little impaired at the moment due to FEAR.

Thanks again... researching away. =)

[VanessaTony 3,567]

Thank you for your insight to this.... TO ALL of EVERYONES insight. I am sure there are alot of people scared of losing the person they love over paperwork. I have all the paperwork from EVERYTHING i even have were my divorce judge said on record, that she would waive the 60 day rule for my divorce on record if she could. Due to she understood what it caused down the road for my life now and the immigration issue. CR-1 ?? what is the difference.. and the attorney i talked to mentioned the i-485. What is that?

The CR-1 is a Visa for married couples. The K1 is a visa for engaged couples. There's also the K3 for married couples but the CR1 is cheaper and far superior. In each of these cases these visas are carried out with the immigrant in their home country. They're permitted to visit (usually) and the spouse/fiance from the US is permitted to visit them, but they will interview in their home country, do medicals etc. The explanations of those visas are here: http://www.visajourney.com/content/guides

The I-485 is for Adjustment of Status (AOS). Obviously the lawyer you spoke to is suggesting the you AOS from the VWP. Basically, rather than go home and apply for an official visa where they KNOW the person intends to immigrate, he's suggesting you skip that part and try and adjust his VWP status to LPR (greencard). This is a very risky route to take. If the AOS is denied (whether like in my example because it's passed the I-94 expiry or other reasons), he WILL get a ban and he won't be able to apply for a fiance/spouse visa until he has served his ban time in his home country. There are hardship waivers (which you can look into if you want) that might overturn the ban but it's VERY rare that it happens.

So your options are:

1. Have him stay in the US, get married and try and Adjust Status (using the I-485 and I-130) to LPR.

2. Get married, have him LEAVE the US and apply for a CR-1 visa

3. Have him leave the US and apply for a fiance visa.

Have a look at the link I posted. Look around for the pros and cons of each option. As much as I LOVE the idea that I could have AOS'd while I was visiting in the US, knowing that if denied I would not be able to appeal (you give up that right with the VWP) and I would be deported and spend MORE time away from my man, I decided that going home where I could work and save money for our future was the best idea. Being apart sucked of course but I knew we would be together again and that I had done the right thing by leaving when i did. If I could go back the one thing I'd change is i'd have got married there and applied for a CR-1 so I could work as soon as I got here. Not only is it cheaper in the long run but being able to work would have been a great thing.

Hope that helps

Edited May 18, 2010 by Vanessa&Tony

[Brother Hesekiel 2,235]

Good post from Vanessa, albeit a bit too cautious for my personal taste. Yet better safe than sorry is certainly good advice here as well.

Here's the short version:

if you want to get married quickly and don't want to live apart anymore, have him stay, get married, and apply for AOS. The chances that he gets in trouble for overstaying are close to zero, as long as he doesn't get in trouble with the law.

If he needs to go back soon, have him go back, the file the K-1 for him. Problem is, even if the overstay of less than 180 doesn't trigger an automatic ban, it still can trigger one. It's not very likely, but it's possible.

I guess it all depends on how soon your divorce becomes final, how soon you want to get married again, and whether or not he needs to go back to England to take care of business. The whole AOS process alone can take several months.

[VanessaTony 3,567]

Good post from Vanessa, albeit a bit too cautious for my personal taste. Yet better safe than sorry is certainly good advice here as well.

Here's the short version:

if you want to get married quickly and don't want to live apart anymore, have him stay, get married, and apply for AOS. The chances that he gets in trouble for overstaying are close to zero, as long as he doesn't get in trouble with the law.

If he needs to go back soon, have him go back, the file the K-1 for him. Problem is, even if the overstay of less than 180 doesn't trigger an automatic ban, it still can trigger one. It's not very likely, but it's possible.

I guess it all depends on how soon your divorce becomes final, how soon you want to get married again, and whether or not he needs to go back to England to take care of business. The whole AOS process alone can take several months.

My only issue is this: http://www.immigrantjustice.org/litigationupdate/7thcircuit/bayo012010blog.html specifically:

"5. The next question is whether there's a conflict between INA 245© - which bars VWP visa overstays from adjusting, except for immediate relatives - and the VWP waiver provisions. The CtApp resolved the apparent ambiguity by interpreting 245©(4) to apply only where someone applies for adjustment of status before falling out of VWP status, and thereafter awaits adjudication of the Adjustment application." [emphasis added]

Also this: http://britishexpats.com/forum/showthread.php?t=651746 specifically this:

"I don't know what else this case might mean (there are some other issues that may be setting new precedent on other topics) but I do think that the posters here who have claimed 'overstay doesn't matter' should be aware that it might matter now, and people adjusting from a VWP should know that what was, in the past, may not be, in the future."

[trillium13 84]

My only issue is this: http://www.immigrantjustice.org/litigationupdate/7thcircuit/bayo012010blog.html specifically:

"5. The next question is whether there's a conflict between INA 245© - which bars VWP visa overstays from adjusting, except for immediate relatives - and the VWP waiver provisions. The CtApp resolved the apparent ambiguity by interpreting 245©(4) to apply only where someone applies for adjustment of status before falling out of VWP status, and thereafter awaits adjudication of the Adjustment application." [emphasis added]

Also this: http://britishexpats.com/forum/showthread.php?t=651746 specifically this:

"I don't know what else this case might mean (there are some other issues that may be setting new precedent on other topics) but I do think that the posters here who have claimed 'overstay doesn't matter' should be aware that it might matter now, and people adjusting from a VWP should know that what was, in the past, may not be, in the future."

It does seem that things may be changing. The OP has reason to worry, I think. Personally in this situation I'd seek the advice of a good lawyer who keeps up with things like this.

I may be way off. But it seems like the OP needs to choose between:

1. sending her fiance home (married or unmarried) and applying for a K1/CRI, with a possible risk of a ban

2. marrying now and applying for AOS after the I-94 has expired, with possible risk of denial due to overstay

Am I understanding right?

The question of overstay has been pretty much a non issue as far as I can tell, until more recently. My husband was a VWP adjuster, with long overstay. We had no problems at all, this was just last year.

It just seems like I am reading more often that the overstay may now be an issue.

It seems to me that if the OP's fiance has overstayed less than the 180 days that he would be better off to go home at this point. There seems to be less risk involved that way, IMO. I personally would have taken the less risky option, had there been one.

I am also wondering if the OP's divorce being in such close proximity to a new marriage would raise any red flags.

[Rebecca Jo 1,962]

From everything I've read recently, AOSing from the VWP isn't possible once the I-94 is expired.

Overstaying right now isn't a big issue. He might make himself ineligible for the VWP but he's not going to get banned and it won't stop him applying for a spouse/fiance visa. He should go home (he won't have a ban unless it's over 180 days, then it's a 3 year ban, 365 days = 10 year ban) and you should apply for a fiance (k1) or spouse visa (cr1). Personally I think the CR1 is the best option.

There was a thread yesterday or the day before about a couple that applied for AOS but didn't send the right documents so by the time they sent it again he was past the I-94 expiration date and officers came to his door and detained him. I think you should look into this right now. You don't want to risk it if this is what you're thinking.

Above all else KNOW that overstaying right now DOES NOT stop him from getting a spouse or fiance visa. He WILL NOT have a ban from it. He will need to note it where asked but otherwise, not an issue. Make sure you keep ALL paperwork about the volcano etc so if he wants to apply for a visitor visa down the track you have proof of why the overstay was "accidental".

Good luck!

Vanessa -

There has been no change in the law that prohibits an adjustment filing from the VWP.

*edited because some days I cannot spell*

Edited May 19, 2010 by JohnnyQuest