Tourist Visa to K1 visa -overstay?

[TheDane 0]

Hi Everybody!

New here at this great and helpful forum!..

Hope anyone can help me/us or give me/us some guidance.

Here is our situation.

First I have come here several times on a Visa Waiver to visit friends and travel, I now have a Tourist Visa from Denmark, multiple entry good for 10 years since 2008. ( got it to be able to travel longer than the 90 days) I have travelled to The States for those two years, usually 5-6 months at a time, to visit friends there, of which one of them since has become my boyfriend. So the last time I entered the United States through Chicago the Officer gave me a hard time, because I have spend more time in The States than in my home country Denmark for the last two years! ( and I'm between the age of 25-30, not married, no kids!)

I said that I was just coming to ski with friends for about three months until March 21st. ( I Know I probably should have said that I was visiting my boyfriend instead, but I have been told that it is bad to say you have a boyfriend in the states when you come to visit!) Anyway after a long talk he granted me entry until the 21st of March this year, and told me that I really need to spend more time in Denmark that I'm spending in the States.

Here is our problem.

I haven't had any questions or problems up until this time going through Customs, so I thought he was just going to Stamp my passport, and give me another 6 months as previous times, without any questions or problems. So I kind of panicked sitting there and just threw out a date.. So probably if I would have said June 21, I probably could have stayed till then.

Anyway..I have always left on time, and truly haven't come here any time with the intension to stay and get married anytime soon!

Okay, so now when I leave this time it will be very hard for me to re-enter the next time.. (and I certainly can't come back anytime soon) so actually my boyfriend and I have now talked about getting married just so that I can travel easier. We do love each other though! :-) :-)

So our plan is now to apply for the K1 visa.

We just talked to an immigration Lawyer and he said that when we have filed for the K1 visa, it is fine and okay for me to just overstay my granted visa period and stay longer than the 21st of March, that it doesn't make any difference or will not create any problems at my fiancee interview or the process of our case!

Here is our/my question:

-Is this correct??? true?? That it is fine for me to just stay longer without creating any problems?? That waiting for the K1 interview it is fine to stay even up until my interview date in Copenhagen, Denmark!??

I would think that it is always best to play by the rules and leave on the 21st as told to have a better case for out K1 visa application!

BUT, it would be nice and better to be able to stay longer with my boyfriend/fiancee if possible!! :-)

Hope I have explained it properly to understand, and hope somebody can give us some guidance or help. :-)

[yohino 22]

Not true at all.

If you are going for the K-1 make very very sure you leave in time!

I think the attorney might have thought you guys were trying to AOS, and then his advise would have been correct since then you should def not leave the States until you have a decision.

Edited January 2, 2011 by yohino

[KeithandDonna 0]

I would get a 2nd opinion. I have read that some people have had a lot of problems becuase they overstayed the visa.

[Inky 1,110]

If you stayed in the US till the interview... how would you get your medical done and your papers collected and filled out and your police certificates etc etc etc.

The right thing to do would be to file the K-1 and return home after your vacation. Not stay in the US and overstay etc.

[canadian_wife 1,791]

We just talked to an immigration Lawyer and he said that when we have filed for the K1 visa, it is fine and okay for me to just overstay my granted visa period and stay longer than the 21st of March, that it doesn't make any difference or will not create any problems at my fiancee interview or the process of our case!

Welcome to VJ! Time to ditch that lawyer. ANY lawyer authorizing you to break immigration law is not worth the money you spent to talk to him

Why woudl you want to complicate your case? Any overstay will have to be answered for and your reply of "I just felt like it" isn't going to go over well when you interview for a K-1 visa

There is SO much to do for your interview prep. As Inky said, you need birth certificates, police certificates, medicals, etc. NONE of that can be done while you are in the US

Stay your authorized stay and depart, file the K-1 now if you like

Good luck

[TheDane 0]

Thank you all very, very much!!

Your replies are very helpful! And thank you for answering so fast!!

Does anyone have great experience and success with any great Lawyer/Law firm here in The States that they have the name and information on?? For a K1 visa Process.

Thank you!

[Inky 1,110]

Most people on VJ have been screwed by lawyers! Some haven't been and had ok process.

If you can do it yourself most will say do it yourself and save 2-3 grand. You have more time than a lawyer to look at your papers and make sure everything is filled out spelled correctly and in order. You have more time to check on your case and get updates and respond to things than lawyers do.

[Brother Hesekiel 2,235]

Happy New Year!

I've read your story with interest, as I experienced the same scrutiny back in 1993 and thus can relate to a bit to what you must have felt when being questioned by the CBP Officer.

You are correct in assuming that once you leave the US, you shouldn't be coming back to the US for a while. You've appeared on CBP's radar screen due to your many visits, and it's possible that the next time you enter with a B2 you'll get a full 6 months without problems, but it's also possible that you will be pulled into secondary inspection and given a hard time.

An unwritten rule, but a rule of thumb, is that you should spend more time outside the US then inside the US. Another rule, and this is a written one, is that you are a US resident purely for tax purposes once you spend more than 180 days on any given calendar year inside the US, whether you are a US citizen, resident, illegal alien, or even "tourist."

The reason why CBP acts this way, is that they are required to assume that everybody who visits the US has the intention to stay and live in the US. Thus, they want to make sure that the visitor doesn't use her non-immigrant visa, such as the B2, to immigrate to the US.

If you file for a K-1 visa, you clearly tell CBP that you do intent to immigrate to the US. So there's no fear involved that you may immigrate, it simply is a given. The fact that you file for a K-1 also shows that you don't want to abuse your B2 for immigration purposes, but that you and your fiance have chosen to do it "the right way" (for lack of a better term).

I agree with your immigration attorney: if you overstay your B2 now for a few days, it has no, zero, none, nada impact on the K-1 at all.

Once you overstay for 180 days, you would trigger a 3-year bar that would prevent you from reentering, unless an I-601 waiver for the overstay is submitted. Overstay of less than 180 days do not trigger anything. Overstay of even 1 day prohibits the foreigner to use the VWP again, so they would have to apply for a B2 instead. Well, you do have a B2 already.

Another option -- and I'm not suggesting you do this, but merely want to show it for informational purposes -- would be if you got married in the US on your B2 and then adjust status (AOS) from within. This is prohibited if the intention exists to do this when arriving, but since you don't even know about this option until now, this is not the case here. So if your fiance would now surprisingly propose to you and you got married, that would make you an immediate relative of a US citizen, which would allow you to adjust status to a resident from within the US. A related problem would be that you couldn't leave the US until your AOS petition is approved, a bit simplified stated, and that can take 6 months or so. Since I doubt that you are prepared to do this at this time, it's most likely not a viable option for you.

In closing, therefore, I agree with your attorney. As long as you don't overstay for 180 days, it will have no impact on your K-1, no matter what some less informed members think about it.

Good luck!

[TheDane 0]

Hi again!

I really appreciate the help!

...So if I was to file for K1 visa, and overstay for say two months. Then decide that I don't want to go through with the the whole thing after all. Then in say three years I want to come to The States for just two weeks of vacation.. Would it then be a problem for me that I have overstayed my visa? Or applied for a K1 visa??

I obviously think and believe in our relationship, but if it should happen that it didn't work out or I was to change my mind after filing for the K1 visa.. Then what happens in the future and when/if I want to travel to the states again?

Thanks!

[Brother Hesekiel 2,235]

Now it gets a bit weird for my taste.

If you file for a K-1 visa, you can still visit with your B2 while it is being processed. However, if you come back too early, you might run into the problems I outlined, and it's possible that CBP give you only a few days or simply sends you back home. Not very likely, but possible.

Okay, now the K-1 is approved, you enter the US with it. Requirement of the K-1 is that you marry your fiance within 90 days of arrival. Once that's done, you apply for Adjustment of Status ($1,070), which eventually results in you getting a (conditional) 2-year Green Card.

If you do not marry your fiance, you'll have to leave once your I-94 expires. That's 6 months after you enter. If you overstay, it's the same as if you overstayed on the B2. You don't trigger the 3-year bar until the overstay reaches 180 days but they have your overstay on record anyway and every time you come back on a B2, you run a risk of encountering huge problems.

Understand this: if you overstay a few days or weeks, and then immigrate, the overstay becomes a non-issue. But if you overstay, apply for a K-1 but do not get married, then "visit' again on your B2, your chance of encountering problems is getting bigger and bigger. With the K-1, you showed immigration intent. Yet, if it didn't work out, that doesn't mean that you have given up on the idea to immigrate to the US. I'd say it's very possible that they revoke your B2 or restrict your ability to visit for longer periods of time or very often severely.

[TheDane 0]

Once again "just Bob" thank you for your information! You have been of great help!

Sorry, if it sounded confusing or weird, just don't want to get into trouble no matter what my/our decision ends up being.

Thank you for answering my questions very well!!

Happy New Year! :-)

[sciencenerd 56]

You could also get married now, return to your home country, and then come over on a CR1 visa and get permanent residency that way. It seems to me the only potential issue if you just got married now and filed for AOS is if you misrepresented yourself to immigration when arriving. It's not totally clear from your post whether you actually lied to immigration (said you were visiting friends to go skiing but were actually visiting your boyfriend) or if you just didn't offer information that they didn't ask for. If you lied, you'll possibly have more problems since it would be a material misrepresentation (likely would depend on what IO documented). If you didn't, it doesn't seem like there would be any problem with just getting married and doing AOS now. Good luck. This isn't circumventing immigration laws - the law allows you to file for AOS on a tourist visa if you did not commit fraud (ie: come over on a tourist visa with the intention of immigrating). Some people don't like it because it is easier to not have to file for an immigrant visa, but them perceiving it as unfair doesn't mean that it's dishonest or fraudulent. Good luck