FIANCE VISA IF HE HAD BEEN HERE ILLEGALLY BEFORE

[Emailmaribel 0]

HELLO EVERYONE!

FIRST OF ALL I WOULD LIKE TO THANK YOU ALL FOR HAVING SUCH A WONDERFUL FORUM. IT IS VERY EDUCATIONAL AND INFORMATIVE. I HAVE BEEN READING IT FOR A FEW WEEKS AND HAVE LEARNED A LOT FROM IT.

HOWEVER, I HAVE A QUESTION THAT MAYBE SOMEONE COULD HELP ME. THIS A BRIEF SUMMARY:

MY BOYFRIEND AND I WERE LIVING TOGETHER FOR ABOUT 8 MONTHS. I AM A US CITIZEN, HOWEVER HE WAS HERE ILLEGALLY. HE IS ORIGINALLY FROM COLOMBIA AND CAME HERE THRU MEXICO. HE HAD TO LEAVE BACK TO COLOMBIA DUE TO A FAMILY EMERGENCY AND OBVIOUSLY CAN'T COME BACK IN ANYMORE. THE ONLY RECORD OF HIM BEING IN THE USA EVER IS A DUI THAT HE GOT IN 2002, BUT HE COMPLETED EVERYTHING AS HE WAS SUPPOSED TO. AND TO BE HONEST HE WASNT EVEN DRUNK BUT THERE WAS A LANGUAGE BARRIER WITH THE POLICE OFFICER. BUT THATS IRRELEVANT RIGHT NOW.

I WOULD LIKE TO APPLY FOR A FIANCE VISA AND GET HIM BACK INTO THE USA. WHEN HE GETS HERE, OBVIOUSLY GET MARRIED AND APPLY FOR RESIDENCY. HOWEVER, HERE IS THE BIG QUESTION.......WILL THEY PENALIZE HIM FOR BEING HERE ILLEGALLY BEFORE AND WHAT IS THE POSSIBILITY OF GETTING WAIVER APPROVED IF NEEDED?

WHAT DOES EVERYONE HERE ADVISE WE DO? I HAVE CONSULTED THREE ATTORNEYS AND EACH ONE TELLS ME SOMETHING DIFFERENT. I AM SO CONFUSED!

[TracyTN 237]

First, please stop using all caps when you type. It's akin to SHOUTING.

Second, to understand what consequence might be involved, we'd need to know exactly how long he was in the US illegally. I'm surprised, though, that an immigration attorney wasn't able to give you a straight answer.

[MrTee12 64]

With the history he has K1 is not the best option.

You have better chances getting married first and going through the CR1 process.

[Emailmaribel 0]

Sorry TracyTN about the all caps. You are correct. He was here illegally for about 8 years.

MrTee12, but if we get married first in Colombia, isnt it harder to get the waiver approved, etc etc?

For a Fiancé visa do we have to apply for a 'forgiveness' document too? Or do we do that here when applying for a residency?

[MrTee12 64]

Sorry TracyTN about the all caps. You are correct. He was here illegally for about 8 years.

MrTee12, but if we get married first in Colombia, isnt it harder to get the waiver approved, etc etc?

From what I know...every embassy raises a "red flag" when they see someone was in the United States illegally. It's going to be tough, especially if you are petitioning for a K1 visa. I just think that CR1 is a better process in your situation (and its cheaper). You may need to get a legal attorney to help you with this matter.

Edited June 23, 2010 by MrTee12

[Emailmaribel 0]

From what I have read on this Forum though, if we get married in Colombia, and I apply for him to come here, I would have to apply for a 601 waiver and for some people the Waiver has taken up to 2 years to get approved.

This process seems so difficult and confusing.

[TracyTN 237]

An overstay of 8 years means he currently has a ban from the US of 10 years.

You're right in saying a 601 waiver must be filed (once the visa is denied) - that waiver must prove an extreme hardship to you, the US citizen, if he is not allowed to emigrate. Crafting that waiver in a way that will get it approved is tricky, and not something I'd do alone. I would find an immigration attorney with experience in 601 waivers through Columbia to help me. That's about the best shot you've got.

Whether or not that takes 2 years, I'm sure I don't know. Seems a bit of a long time, but I suppose each consulate could have different wait times.

Edited to add - I disagree slightly with the poster who suggested this could be easier on a CR1. You'll still have to overcome the ban and have a successful waiver no matter which visa type you pursue.

Edited June 23, 2010 by TracyTN

[GlobeHopperMama 95]

The others are correct, for an overstay of 8 years, he is under the 10-year ban of entry under INA 212a9B. This means that he will be unable to enter the US under any visa (fiance, spouse, visitor, student, etc.) for 10 years without an approved waiver. For the Fiance or Spouse visa, this is the I-601 waiver.

No, under the law there is no difference whether he applies for the I-601 waiver on a Fiance or Spouse visa. The waiver is adjudicated exactly the same way in either case. However, in rare cases, some consular employees get confused and attempt to tell K1 applicants that they aren't eligible for the waiver. If this happens, you simply need to print up the legal statutes or even the I-601 instructions which clearly state that fiances are eligible.

As far as I know, Colombian waivers (which get sent to Panama's DHS office for processing) are being processed in 9-12 months right now, plus several more months for transfer between offices and other procedures. Yes, it's a long time, but there's really no other way with a prior overstay.

For more info and support, I suggest visiting immigrate2us.net, which is a forum full of people going through the waiver process and dealing with the heartache that comes with it!