fiance overstayed visa, left the country, now what?

[melindamarie 1]

My boyfriend came to the United States from Brazil as a foreign exchange student in 2005. He had no intentions of overstaying his visa when he came however, because of Brazil's poor economy and his success in America, he stayed. He also provided for his family back in Brazil by working here. He went back in December of 2011 because he wanted to renew his visa and come back legally. I was weary about it - afraid he would be banned because of the overstay, but he insisted it was fine because he knew several people that had overstayed longer and came back without an issue. (Not sure how in the world that happened..) We had discussed marriage before he left. Since he left, I have visited him in Brazil and we have decided that we would like to get married and him be able to come back here but we have no idea where to start. He recently applied for just a tourist visa (trying to get back as quickly as he could - and when going through the airport to go back to Brazil in December, no one even looked at his passport so he thought he was okay) and was denied because of his overstay, obviously. However, he was not banned and the U.S. Embassy in Sao Paulo said he could reapply in three months or try the fiance visa. They said that it would work towards his favor that he was in college the whole time he was in the U.S. He never got into any kind of trouble and wasn't deported. He went back to Brazil on his own free will. We have a legitimate relationship with plenty of proof, but I know it will be hard to get the fiance visa because of his overstay. I know you can file for a waiver of inadmissibility but we could still get denied. We have already spent 7 months apart and I'm at a point now where I just want to be with him but I also want it to all be legal to avoid a future mess. Would it be easier if I lived and worked in Brazil for a year or so, while married to him, and apply for the spouse visa? Has anyone gone through a situation similar to this? No clue what our next move should be. We just want to have faith it will work before we put so much time and money into it. Thanks so much.

Edited June 15, 2012 by melindamarie

[aleful 1,905]

My boyfriend came to the United States from Brazil as a foreign exchange student in 2005. He had no intentions of overstaying his visa when he came however, because of Brazil's poor economy and his success in America, he stayed. He also provided for his family back in Brazil by working here. He went back in December of 2011 because he wanted to renew his visa and come back legally. I was weary about it - afraid he would be banned because of the overstay, but he insisted it was fine because he knew several people that had overstayed longer and came back without an issue. (Not sure how in the world that happened..) We had discussed marriage before he left. Since he left, I have visited him in Brazil and we have decided that we would like to get married and him be able to come back here but we have no idea where to start. He recently applied for just a tourist visa (trying to get back as quickly as he could - and when going through the airport to go back to Brazil in December, no one even looked at his passport so he thought he was okay) and was denied because of his overstay, obviously. However, he was not banned and the U.S. Embassy in Sao Paulo said he could reapply in three months or try the fiance visa. They said that it would work towards his favor that he was in college the whole time he was in the U.S. He never got into any kind of trouble and wasn't deported. He went back to Brazil on his own free will. We have a legitimate relationship with plenty of proof, but I know it will be hard to get the fiance visa because of his overstay. I know you can file for a waiver of inadmissibility but we could still get denied. We have already spent 7 months apart and I'm at a point now where I just want to be with him but I also want it to all be legal to avoid a future mess. Would it be easier if I lived and worked in Brazil for a year or so, while married to him, and apply for the spouse visa? Has anyone gone through a situation similar to this? No clue what our next move should be. We just want to have faith it will work before we put so much time and money into it. Thanks so much.

no.

it doesn't matter if you file a fiance or spousal visa if you marry, he still would need a waiver, because he has a 10 year ban, and you send the hardship letter. You can marry him and file the i130 for consular processing and he will file the waiver and you the hardship letter. but if you live in Brazil, how can you show that you have hardships and that you cannot move to Brazil if you live there?

[melindamarie 1]

no.

it doesn't matter if you file a fiance or spousal visa if you marry, he still would need a waiver, because he has a 10 year ban, and you send the hardship letter. You can marry him and file the i130 for consular processing and he will file the waiver and you the hardship letter. but if you live in Brazil, how can you show that you have hardships and that you cannot move to Brazil if you live there?

So we should go ahead and apply for the fiance visa, let it get denied, and then apply for the I-130 waiver? Or do those at the same time?

[KayDeeCee 4,893]

So we should go ahead and apply for the fiance visa, let it get denied, and then apply for the I-130 waiver? Or do those at the same time?

I-130 is not a waiver. That is the form for filing for a spousal visa. Have a read through the waiver forum here: http://www.visajourney.com/forums/forum/113-waivers-i-601-and-i-212-and-administrative-processes-221g/

[jaycali 415]

You can apply, expect to get denied, but bring an I-601 hardship waiver to the interview. For advice on the hardship waiver, I would consult with the people over at www.immigrate2us.net as they are more experienced on waivers.

You were right about him not returning. never go with "someone else did this and it was fine" when it comes to immigration. Overstay of 1 year + usually results in a 10 year bar from entry, only waivable with an I-601 waiver. The sad part is that if he hadn't left, and you had gotten married, no waiver would have been required, and he wouldn't have had to leave.

[Harpa Timsah 13,258]

There is a slight chance he won't need a waiver, if he had D/S in his passport. I personally disagree with this interpretation of the law, but it can and has been interpreted this way in past cases. It sounds from your explanation of his interview that he was denied for immigrant intent, not for a ban per se (they told him to apply for the fiance visa). The tourist visa is not the correct visa for him if he is planning to not only de facto live in the US on it, but also immigrate on it. I would file the K-1 visa and see if he is denied. Be prepared for the waiver no matter what.

And, the fact that he left of his own volition has nothing to do getting a ban or not. He lived in the US illegally.

[jaycali 415]

There is a slight chance he won't need a waiver, if he had D/S in his passport. I personally disagree with this interpretation of the law, but it can and has been interpreted this way in past cases. It sounds from your explanation of his interview that he was denied for immigrant intent, not for a ban per se (they told him to apply for the fiance visa). The tourist visa is not the correct visa for him if he is planning to not only de facto live in the US on it, but also immigrate on it. I would file the K-1 visa and see if he is denied. Be prepared for the waiver no matter what.And, the fact that he left of his own volition has nothing to do getting a ban or not. He lived in the US illegally.

This is correct. If his I-94 said D/S and not an actual date, he wouldn't need a waiver as he wouldn't have "accumulated unlawful presence" until ordered removed by an immigration judge. If he was a student, this is actually likely what happened.

Edited June 15, 2012 by jaejayC

[JohnR! 5,495]

However, he was not banned and the U.S. Embassy in Sao Paulo said he could reapply in three months or try the fiance visa.

In that case, I would bet you will not need to file a waiver, otherwise the consulate would have not suggested he try again in three months.

Good luck with the K-1!

Edited June 15, 2012 by Gegel

[melindamarie 1]

This is correct. If his I-94 said D/S and not an actual date, he wouldn't need a waiver as he wouldn't have "accumulated unlawful presence" until ordered removed by an immigration judge. If he was a student, this is actually likely what happened.

I have never heard of this before? What is the D/S? He said he had a visa type R and class J1.. a student visa. Not sure if this helps or not...

[melindamarie 1]

I-130 is not a waiver. That is the form for filing for a spousal visa. Have a read through the waiver forum here: http://www.visajourney.com/forums/forum/113-waivers-i-601-and-i-212-and-administrative-processes-221g/

I meant the I-601. Sorry! I will have a look at that though. Thank you.

[JohnR! 5,495]

I have never heard of this before? What is the D/S? He said he had a visa type R and class J1.. a student visa. Not sure if this helps or not...

Duration of status means that he was authorized to stay in the US as long as his status remained unchanged. In other words, as long as he remained a student he enjoyed the privilege of staying in the US. It all depends on the type of program through which he came to the US initially.

source: http://travel.state..../info_1298.html

Admission to the U.S. and your Duration of Stay

Upon arriving at a port-of-entry and when admitted, a CBP officer places a small white card, Arrival-Departure Record, Form I-94 or a small green card, Form I-94W for VWP travelers, in your passport. This card is very important as it shows permission to be in the U.S. On this card, the CBP officer records either a date or duration of status (D/S) in the lower right hand corner. If your I-94 or I-94W contains a specific date that signifies the date you must exit the U.S. Some students, exchange program participants, and temporary workers (e.g., foreign diplomats) will be admitted for D/S. If you have D/S on your Form I-94, you may remain in the U.S. as long as you continue your course of studies, remain in your exchange program, or qualifying employment. The date or D/S notation, shown on your Arrival-Departure Record, I-94 or I-94W is the official record of your authorized length of stay in the U.S. You cannot use the visa expiration date in determining or referring to your permitted length of stay in the U.S.

Edited June 15, 2012 by Gegel

[Harpa Timsah 13,258]

I have never heard of this before? What is the D/S? He said he had a visa type R and class J1.. a student visa. Not sure if this helps or not...

Oh, if he had a J1 visa then he probably had a specific "leave by" date. Some F1 visas have D/S or "Duration of Status." Expect to file the waiver for the ban then.

[melindamarie 1]

Oh, if he had a J1 visa then he probably had a specific "leave by" date. Some F1 visas have D/S or "Duration of Status." Expect to file the waiver for the ban then.

I think he did have a specific date, but he was a student the whole time he was here.

[JohnR! 5,495]

1339787155[/url]' post='5453822']

I think he did have a specific date, but he was a student the whole time he was here.

Melinda, the cunsolate must have given him a letter explaining the reason they declined his visa this time around. There should be indication as to whether the ban applies to him in that letter. Have home check it out.

[Harpa Timsah 13,258]

You wrote this:

He had no intentions of overstaying his visa when he came however, because of Brazil's poor economy and his success in America, he stayed. He also provided for his family back in Brazil by working here. He went back in December of 2011 because he wanted to renew his visa and come back legally.

And now you write this:

I think he did have a specific date, but he was a student the whole time he was here.

I think we are all under the impression that he overstayed at least a few years (2005 was 7 years ago and college does not take that long) and worked illegally. Now you say that's not true?