Question re: K-1 and overstay

[smashrun 10]

Hi everyone

I am new here and just beginning the K-1 process. Here is some background info:

My fiancée and I met in the US in July 2010. He arrived in the US in 1998 under a VWP and stayed. He left voluntarily in Sept 2010 for family reasons. According to him, there is nothing in his passport from 1998 showing amount of time allowed etc. His passport was not stamped by US officials when he left in Sept 2010. The official even told him to come back soon! He has no criminal record in the US.

Here is my question: What is the likelihood that this overstay will be detected? I have heard that entry/exits were not always well tracked prior to 9/11. Should we disclose this (when/where?) or only tell if asked? Of course, it would be ideal to avoid going through the 601 process but I don’t want to jeopardize our chances of getting him back here. We have not filed anything yet.

Thanks so much for your advice!

smashrun

[Anh map 2,098]

Not being truthful is a big no no. He will have to list where he's lived for the last 5 years. So the information will be there.

The "it isn't written in my passport" excuse won't fly. Trying that would just make a person sound foolish.

[Steph1988 11]

did he not hae an 1-94 he had to hand in on his way out?

[Steph1988 11]

nah be seriously this is a though one. your right things have really changed since 9/11 if there was no i-94 id say you prolly get away with it. this tends to happen for some people lol! can you prove extreme hardship with out your fiance if you have to do the waiver

[VanessaTony 3,567]

You have two choices:

1. Don't tell them and end up with a lifetime ban for material misrepresentation

2. Tell them and have to apply for a waiver for the 10 year ban.

Even if there is a chance they won't know about it are you really willing to risk a lifetime ban on the chance they do? I certainly wouldn't but it's your choice.

Edited May 29, 2011 by Vanessa&Tony

[Penguin_ie 5,986]

Chances are good they know- he was here then years and there will be a record of it somewhere (taxes, lease, bank account, drivers license, bills etc). Even if they do not find out now, they may later, such as when he files for removal of conditions or citizenship, and then he'll be deported and can never come back. Not worth it.

[Andie 147]

I have been into the US on VWP several times and never had an exit stamp but the details are in their system.

[smashrun 10]

Thank you all for your responses! Good information.

@Steph1988: There was no I-94. You're right, it's a tough one!

@Penguin: Very helpful information. There would be tax records and a driver's license record for sure. He also divorced in the US so that is public record.

@Vanessa&Tony: You're right, not worth risking a lifetime ban.

@anhmap: I agree, using that as the sole excuse would be foolish. I was just providing an example of why we thought he might not be tracked in the system.

I really appreciate the insight - I will be updating my info here as we begin our paperwork process. Thanks!

[Ryan H 3,790]

I have been into the US on VWP several times and never had an exit stamp but the details are in their system.

US does not have exit stamps. When a person departs, they hand their I-94 to airline personnel when they check-in for the flight or cruise ship personnel if they will disembark the ship in another country. If they are leaving by land (Canada or Mexico), they hand the I-94 to the border agent of the other country.

[dindo and patty 20]

Please explain further regarding your fiance having previously divorced in the US. What is your fiance's current status in the US then if previously married and then divorced??? Just a bit confusing. If previously married, did your fiance ever adjust status???

Thank you all for your responses! Good information.

@Steph1988: There was no I-94. You're right, it's a tough one!

@Penguin: Very helpful information. There would be tax records and a driver's license record for sure. He also divorced in the US so that is public record.

@Vanessa&Tony: You're right, not worth risking a lifetime ban.

@anhmap: I agree, using that as the sole excuse would be foolish. I was just providing an example of why we thought he might not be tracked in the system.

I really appreciate the insight - I will be updating my info here as we begin our paperwork process. Thanks!

[smashrun 10]

@dindo&patty:

He divorced his spouse (also not a USC) who originally came with him in 98. She was from the same country. So, he would never have qualified to adjust status based on his previous marriage.

[Used to be broken 143]

Hi everyone

I am new here and just beginning the K-1 process. Here is some background info:

My fiancée and I met in the US in July 2010. He arrived in the US in 1998 under a VWP and stayed. He left voluntarily in Sept 2010 for family reasons. According to him, there is nothing in his passport from 1998 showing amount of time allowed etc. His passport was not stamped by US officials when he left in Sept 2010. The official even told him to come back soon! He has no criminal record in the US.

Here is my question: What is the likelihood that this overstay will be detected? I have heard that entry/exits were not always well tracked prior to 9/11. Should we disclose this (when/where?) or only tell if asked? Of course, it would be ideal to avoid going through the 601 process but I don’t want to jeopardize our chances of getting him back here. We have not filed anything yet.

Thanks so much for your advice!

smashrun

What country? Different rules for Canada I think.

[Anh map 2,098]

What country? Different rules for Canada I think.

Not that different. There is a lot of documentation of the overstay. It may be worth spending a few $$ to speak with an immigration attorney that has experience with overstays.

[smashrun 10]

Not that different. There is a lot of documentation of the overstay. It may be worth spending a few $$ to speak with an immigration attorney that has experience with overstays.

Not Canada. Good advice anh - I have spoken with an attorney but will not be using one for the filing process.

[JimVaPhuong 4,863]

They have a record of his entry in 1998. His exit was either properly recorded or it wasn't. If it was properly recorded, then they know he overstayed by 12 years. If it wasn't then they will demand evidence that he left before a ban would have kicked in. If he can't provide it then they are free to presume he left just before showing up at the US consulate to apply for a visa. Either way, he's got a 10 year ban beginning whatever day they determine he left the US.