3 or 10 year ban.

[Simon and Janet 6]

Hey guys,

I have a question about an overstay and i'm a bit confused about the outcome.

I entered on Jan 23 2010 on the k-1 meaning my 90 day period of stay ended somewhere around April 23 2010. I sent in my AOS paperwork in January 2011 and got the NOA1 for that January 26 2011. Giving me an overstay of about 8 months to that point.

My question is that if i leave the US without getting my green card and abandoning the visa, do i have an 8 month overstay triggering a 3 year ban or do i will it be judged a 14 month overstay and incuring a 10 year ban because i abandoned the visa?

Thanks,

S&J

[Barbara J 115]

Hey guys,

I have a question about an overstay and i'm a bit confused about the outcome.

I entered on Jan 23 2010 on the k-1 meaning my 90 day period of stay ended somewhere around April 23 2010. I sent in my AOS paperwork in January 2011 and got the NOA1 for that January 26 2011. Giving me an overstay of about 8 months to that point.

My question is that if i leave the US without getting my green card and abandoning the visa, do i have an 8 month overstay triggering a 3 year ban or do i will it be judged a 14 month overstay and incuring a 10 year ban because i abandoned the visa?

Thanks,

S&J

What overstay? You entered on K1 you married within 90 days all legal and you have fulfilled your obligation as far as the K1 goes. What visa have you abandoned? You have done AOs and are pending yes? You can't go anywhere til you get AP if you applied for it or get GC.

[Simon and Janet 6]

If the relationship has broken down and i wish to leave and i do so without receiving the GC?

[bt1 42]

If the relationship has broken down and i wish to leave and i do so without receiving the GC?

If you leave after you get your GC, what good would that do for you?

[Simon and Janet 6]

If you leave after you get your GC, what good would that do for you?

If i write to USCIS and withdraw the application and leave rather than having 'Green Card denied - Abandoned'. I just want to know that if i wish to return to the U.S in a few years or so for a vacation i can do so with getting to POE and been told i have a 10 year ban.

[TheSahlis 10]

Are you sure you are in an overstay status...you fulfilled the requirements of the K-1 in that you married with in the 90 days.

from USCIS web site:

After the Fiancé(e) Visa is Issued

Once issued, the fiancé(e) visa (or K-1 nonimmigrant visa) allows your fiancé(e) to enter the United States for 90 days so that your marriage ceremony can take place. Once you marry, your spouse may apply for permanent residence and remain in the United States while USCIS processes the application. For additional information, see the “Green Card” link to the right.

i dont see anywhere that you have to apply for AOS just that you are then elegable to, and I cant find anything that says that you have to leave, I think but cant swear to it that you are just considered a non-immigrant visa holder till AOS is complete. The 90 limit as far as I can tell is only to get married which from your timeline you did.

now where you may have issues is if you leave the US with out completing your AOS ( though there may be some kind of waiver for this also ) you might have to start the i-130 process from the start and beleve me it can be painfull and long.

Im no visa guru but im sure that if I have someting wrong someone else will correct it, thats whats great about VJ.

Edited June 16, 2011 by TheSahlis

[ryna 132]

The overstay clocks starts ticking when the I-94 from the K-1 expires. It is put on hold when you receive your NOA1 for AOS and is forgiven upon approval of the GC based on marriage to a USC. If a person were to leave the US, even with AP, after 180 days of overstay, they would not be allowed back in for 3 years. More than 1 year of overstay, 10 years... Your overstay at this point is the time between the I-94 expiration and your AOS NOA1 date.

I don't know that there is any option of avoiding it if you withdraw the AOS... As far as I know, getting the GC is the only way to erase what you already have accumulated...

Edited June 16, 2011 by ryna

[Harpa Timsah 13,258]

Wow, lots of bad information in this thread.

Ryna is correct. Overstay/days of illegal presence accumulate once the I-94 expires on a K-1 visa if you did not file for AOS, even if you marry within the 90 days. The OP will have a 3 year ban if he leaves now, because any time while AOS is pending is a period of authorized stay. If the OP were to get the GC, the overstay days would be forgiven/erased.

I am sorry things aren't working out for you. 3 years isn't too long. Best of luck to you.

[Simon and Janet 6]

The overstay clocks starts ticking when the I-94 from the K-1 expires. It is put on hold when you receive your NOA1 for AOS and is forgiven upon approval of the GC based on marriage to a USC. If a person were to leave the US, even with AP, after 180 days of overstay, they would not be allowed back in for 3 years. More than 1 year of overstay, 10 years... Your overstay at this point is the time between the I-94 expiration and your AOS NOA1 date.

I don't know that there is any option of avoiding it if you withdraw the AOS... As far as I know, getting the GC is the only way to erase what you already have accumulated...

If the ban is 3 years... then so be it. I'm more concerned that if i withdraw the AOS application, the overstay may be considered to be from the k-1 i-94 date until the day i exit the country with is over 12 months, rather than being i-94 date until NOA1 date which is 8 months.

[ryna 132]

If the ban is 3 years... then so be it. I'm more concerned that if i withdraw the AOS application, the overstay may be considered to be from the k-1 i-94 date until the day i exit the country with is over 12 months, rather than being i-94 date until NOA1 date which is 8 months.

Personally, if you already know you're leaving, I'd leave before taking any action on the AOS. If, by some chance, the GC is approved without an interview, the overstay will be forgiven, although you will have abandoned your residency after 6 months away which, obviously, is no concern to you. And, if you withdraw it after you leave, your "overstay" will be frozen at the length of time between the I-94 and NOA1 instead of adding overstay days after withdrawing it.

Good luck with everything

[Simon and Janet 6]

Personally, if you already know you're leaving, I'd leave before taking any action on the AOS. If, by some chance, the GC is approved without an interview, the overstay will be forgiven, although you will have abandoned your residency after 6 months away which, obviously, is no concern to you. And, if you withdraw it after you leave, your "overstay" will be frozen at the length of time between the I-94 and NOA1 instead of adding overstay days after withdrawing it.

Good luck with everything

Thank you very much for the information. The situation sucks....but other people have had worse to deal with, so i just have to take my penalty and deal with it.

And you're right Harpa, 3 years isn't TOO long to deal with, i just hope that i can apply for a visiting visa without too much of a problem when the time comes.

[Brother Hesekiel 2,235]

I think I need to chime in here.

First, never mind the bar. The bar is only a default that prevents somebody to return within a 3 or 10 year time period. Just ignore the bar, or assume it has been served. Somebody who overstayed, even by 1 day, is not eligible to use the VWP anymore. Such a person would then need to apply for a B2 in order to visit the Land of the Brave and Free again, and that's the killer.

See . . . as you may know, every tourist visa application is evaluated on its own merit. The Consular Officers are drilled to assume that anybody wanting to visit the US will overstay and live there. For that reason, many people without any negative history are simply denied their B2 visas. However, a person who has a documented overstay in the US, plus had filed an application for immigration, will only in the most unusual of circumstances ever be allowed to travel to the US again on a non-immigrant visa.

In layman's terms: if you abandon your AOS, it will end your American Dream.

[Simon and Janet 6]

Like you said, everyone who enters the country, whether it be VWP or visa's is a threat to stay and live in the US. I overstayed during the process, i didn't come over as a tourist and decide to not go home or get deported. This just means i have to go above and beyond in being prepared to come back if/when i get a B2 in the future. If i come over prepared, bring ties to my homeland... letters from employer, rent/mortgage details, whatever else, as well as everything i've received from USCIS in this process, answer all things asked to me truthfully then i'd be confident in being able to enter.

[VanessaTony 3,567]

Like you said, everyone who enters the country, whether it be VWP or visa's is a threat to stay and live in the US. I overstayed during the process, i didn't come over as a tourist and decide to not go home or get deported. This just means i have to go above and beyond in being prepared to come back if/when i get a B2 in the future. If i come over prepared, bring ties to my homeland... letters from employer, rent/mortgage details, whatever else, as well as everything i've received from USCIS in this process, answer all things asked to me truthfully then i'd be confident in being able to enter.

The overstay is from your I-94 expiry to your AOS NOA1. Your NOA1 puts you in a period of "authorised stay" so the only time to worry about is the 8 months.

I think that as you entered on a K1 (not a visitor/student etc visa) that your chances are greater over overcoming the overstay to get a visitor visa. You will need STRONG ties though. Still might not be possible but you fulfilled the terms of your visa and honestly thought your relationship would work. You went the proper route so hopefully that bodes well for you.

I am sorry you're going through this

Edited June 17, 2011 by Vanessa&Tony

[Boiler 43,436]

You were good for the 90 days.

If you do not adjust everything after that will count towards the ban so 10 year.

You would have been here more than a year after the 90 days.