Over stay of Visa Waiver

[DeeMart 0]

Hi All

I am very new to this and very very frustrated - here is my plight!

I met my now husband in 2000 on the internt and to cut a long story short I visited him on a visa waiver in 2009 for 6 weeks, again in May 2010 for 3 months and again in December 2010 on a visa waiver - In Feb 2011 we got married and started the immigration process. The lawyer that we saw in the USA advised me that I would be ok up until August and by then the immigration process should we well and truly under way. In about May 2011, we decided that we would come to Australia and live and did not follow through with my immigration in the States. My husband (Jeff) has a 15 year old daughter and so it took us a while to get ourselves sorted (mainly financially) but also trying to get consent from Jeff's daughter's mother for her to travel to Australia with us. To cut another long story short we could not get his daughter's passport and so Jeff and I travelled to Australia on 7 December 2011 without her. In March 2012 we found out that we could not renew Jeff's visa and his daughter still had not joined us in Australia and so he went back to USA.

So, I overstayed my visa waiver by quite a substantial period of time.

Now I am in Australia and Jeff is in USA and we have decided to live in the USA, until his daughter turns 18, when we will probably return to Australia.

My question is, because I overstayed my visa waiver will the USA Government approve my I-130 application and in turn give me a K3 Visa? Or is there any other way??

On top of all that I have dual nationality and entered the US on my UK passport and left on my Australian.

AND on top of that I cannot get my name changed on my passport in Australia without first registering my name with BD&M - so much red tape.

Any advice would be appreciated.

Thank you in anticipation

Dee

[Boiler 45,670]

So you have a 3 year ban which could be waived by filing an I 601 showing his extreme hardships if it not granted to you.

Was she 15 or is she 15, just wondering if it is worth the hassle of going through the US process when you would then be doing a U turn and heading back down under.

[Penguin_ie 5,994]

First thing: forget the K3, it is obsolete, you will get the CR-1 spousal visa.

You overstayed more than 180 days but less than a year, so have a three year ban. They will approve the I-130 petition your husband sends in, but you will be denied a visa at interview. You can then file a waiver for the ban, but it can be difficult to get approved with your previous history and future plans.

[jhm3 15]

An overstay of more than 180 days but less than a year would indeed trigger a 3-year ban, but might the fact that the OP "started the immigration process" be relevant here? It depends on what she means by "started the immigration process", of course, but if she had a pending AOS application for any length of time, even if it was subsequently abandoned, might that reduce the period of "unlawful presence," perhaps to less than 180 days, in which case no ban would be in effect?

I hope that's the case, but if not, yes, I believe you would need to apply for an immigrant visa, be denied because of the ban, and then petition for a hardship waiver. Good luck!

[Boiler 45,670]

No

[DeeMart 0]

No

Thanks everyone for your help. I thought as much, the short answer is no. Toree (the daughter) is now 16 and although able to get her own passport without her mother's consent. Immigration and even a Visa needs both parents consent - I believe.

This really sucks - I just want to be with my husband!!!!!!

PS We didn't file anything in regards to my immigration to the US in 2011.

Thanks again

Dee

[Penguin_ie 5,994]

Since she is 16 now, Boiler has a good point- between the normal visa process and the waiver afterwards, it'll take you a year or more to get a visa even if approved, and is stressful and expensive. To do all that only to turn around a year or less later and move back may not be your best option, as hard as it is to be apart now- concentrate on getting your husband a permanent visa to Australia when the daughter is 18.

[DeeMart 0]

YUP

I think it is a fair bit easier to get Jeff to stay here permanently although I little bit more expensive, these days.

Thanks again

[jaycali 415]

YUPI think it is a fair bit easier to get Jeff to stay here permanently although I little bit more expensive, these days.Thanks again

Yep, and if you ever plan to move back to the US, the 3 year bar will likely be over by then.