Overstay as minor, able to file k-1?

[inukim09 0]

Hello all,

This is my very first post here so please be patient with me

So heres my story... I arrived in the states with my parents as a minor, 7 years old, and somewhere down the road, my parents and i over stayed our visa. I graduated highschool and also college here in the states. After graduating college, i decided it was time for me to go back to South Korea, since there was nothing much i could do in the states (with no drivers license and ability to work). I believe there is no solid record of me over staying my visa since i was not finger printed in my entry to the states. the only visible evidence of my extended stay is the record of me departing the states.

I am in the states right now with a Visa waiver program, trying to figure out ways to immigrate back to the states. I'm returning to korea in about a month since my VWP expires soon after that. I've consulted an attorney regarding my case but he didn't seem to know so much more than i do with the possible options of my immigration back to the states.

If my boyfriend and i were to file for a K-1 visa, will there be a problem down the road regarding my "extended" stay in the states? am i officially labeled by the government as someone who held illegal status?

This is such a frustrating situation for me.

[Holly2234 66]

I cant help but it might be worth mentioning how old you were when you left the US and how long you were away for so that other members can help you better.

[inukim09 0]

I cant help but it might be worth mentioning how old you were when you left the US and how long you were away for so that other members can help you better.

Thanks for the advice, i was 23 when I left the US and i was in Korea for about three weeks.

[Holly2234 66]

The only thing that springs to mind is this http://e3visa.info/2009/12/01/immigration-reform-2010-the-dream-act/ but i dont know much about it or if you could qualify since you left the country. You are no longer there illegally since you are on VWP and it is important not to overstay on that if you plan to file a K-1 and marry your boyfriend.

Another possibility would be to marry in the US now and do AOS but again, i dont know the legal side of it. Also, since you have been granted entry the VWP, that kind of indicates that there isnt record of you having been there. But it would more than likely come up about where you have been all of those years.

Im sorry i cant help! Just a few things that came to mind. You will probably need an attorney for whatever you do so it might be worth having a look around for one more experienced with over stayers. Good luck.

[inukim09 0]

The only thing that springs to mind is this http://e3visa.info/2009/12/01/immigration-reform-2010-the-dream-act/ but i dont know much about it or if you could qualify since you left the country. You are no longer there illegally since you are on VWP and it is important not to overstay on that if you plan to file a K-1 and marry your boyfriend.

Another possibility would be to marry in the US now and do AOS but again, i dont know the legal side of it. Also, since you have been granted entry the VWP, that kind of indicates that there isnt record of you having been there. But it would more than likely come up about where you have been all of those years.

Im sorry i cant help! Just a few things that came to mind. You will probably need an attorney for whatever you do so it might be worth having a look around for one more experienced with over stayers. Good luck.

Thank you for your input! I wish Obama's immigration reform applied to me but JUST MY LUCK, i just had to leave the country when it first became public. ):

[Asia 2,498]

It's weird that you could apply for ESTA at all, since you were illegaly for 4 years (child's illegal presence is accumulated after he's/she's 18 years old).

Isn't there (in the ESTA form) any question of being illegaly in the US in the past?

[KayDeeCee 4,893]

Once you turned 18 you began to accrue overstay. You should have a 10 year ban so I am not sure how you are able to use the VWP to re-enter the US. Since you should have a 10 year ban, your K-1 would be denied and you will need a waiver to overcome the denial and ban.

[inukim09 0]

Once you turned 18 you began to accrue overstay. You should have a 10 year ban so I am not sure how you are able to use the VWP to re-enter the US. Since you should have a 10 year ban, your K-1 would be denied and you will need a waiver to overcome the denial and ban.

That was what I was confused about. There were no matters of returning my I-94 on my way of the states, nor there was any sort of suspicion in my returning with vwp. I had a travel agent in Korea take care of all my forms including ESTA, did I commit visa fraud without even knowing it?

[Boiler 45,658]

You have a 10 year ban for the overstay.

You used the VWP when not eligible to do so.

[JimVaPhuong 4,863]

That was what I was confused about. There were no matters of returning my I-94 on my way of the states, nor there was any sort of suspicion in my returning with vwp. I had a travel agent in Korea take care of all my forms including ESTA, did I commit visa fraud without even knowing it?

No, you didn't commit visa fraud. You got lucky. The ESTA application does ask some pretty specific questions, including if you've ever been deported, denied admission, or denied a visa. They DON'T ask if you've ever previously overstayed your lawful presence in the US. You can't technically lie about a question you were never asked.

The fact that your ESTA was approved is not the same as a waiver for the ban. The ban doesn't exist until an immigration officer determines it exists, and that hasn't happened yet. Once an immigration officer determines the ban exists then you need a waiver to overcome it. It doesn't matter if you've used ESTA half a dozen times in between.

You may not be as lucky from here on. The DS-230 does specifically ask you to list the dates you previously visited the United States. It also specifically asks if you were previously unlawfully present for more than 180 days and departed less than 3 years ago, or if you were unlawfully present for more than 1 year and departed less than 10 years ago. You're going to have to answer those questions.

[Boiler 45,658]

Usually I agree with your posts but there are 2 things here I do not:

From the London consulate web site:

those who have been refused admission into, or have been deported from, the United States, or have previously overstayed on the VWP are not eligible to travel visa free under the Visa Waiver Program

Now the INA I have not checked.

The overstay ban kicks in as soon as you leave, no need for their to be a finding, that would apply in D/S cases.

[inukim09 0]

No, you didn't commit visa fraud. You got lucky. The ESTA application does ask some pretty specific questions, including if you've ever been deported, denied admission, or denied a visa. They DON'T ask if you've ever previously overstayed your lawful presence in the US. You can't technically lie about a question you were never asked.

The fact that your ESTA was approved is not the same as a waiver for the ban. The ban doesn't exist until an immigration officer determines it exists, and that hasn't happened yet. Once an immigration officer determines the ban exists then you need a waiver to overcome it. It doesn't matter if you've used ESTA half a dozen times in between.

You may not be as lucky from here on. The DS-230 does specifically ask you to list the dates you previously visited the United States. It also specifically asks if you were previously unlawfully present for more than 180 days and departed less than 3 years ago, or if you were unlawfully present for more than 1 year and departed less than 10 years ago. You're going to have to answer those questions.

wow thank you so much for all that information! I'm glad i didn't add another mark to my already soiled record. It does look like my immigration to the US seems almost impossible. at this point, im feeling pretty hopeless. :\ I just find it very strange that i have not been stopped during entry. Same goes for my brother. He departed the US after he graduated college with the same situation as me. He had to go serve in the mandatory army program in Korea. However, he has been back and forth twice already since his initial departure from the US. Is there something i'm missing here? Are we just THAT lucky??

[inukim09 0]

Usually I agree with your posts but there are 2 things here I do not:

From the London consulate web site:

those who have been refused admission into, or have been deported from, the United States, or have previously overstayed on the VWP are not eligible to travel visa free under the Visa Waiver Program

Now the INA I have not checked.

The overstay ban kicks in as soon as you leave, no need for their to be a finding, that would apply in D/S cases.

I think i somehow got through the loop hole with that one, since i never overstayed on a VWP. I overstayed on a e2 visa (after changing B2 to E2)

[pushbrk 12,969]

Usually I agree with your posts but there are 2 things here I do not:

From the London consulate web site:

those who have been refused admission into, or have been deported from, the United States, or have previously overstayed on the VWP are not eligible to travel visa free under the Visa Waiver Program

Now the INA I have not checked.

The overstay ban kicks in as soon as you leave, no need for their to be a finding, that would apply in D/S cases.

Yes, the OP got lucky in that they were not eligible for the VWP but because no specific question was asked about previous overstay, they got lucky. The best bet now is to stay and adjust status, as leaving again followed by a K1 or CR1 visa process WILL result in triggering a ban.

The DS230 is obviously not used in the AOS process and the I-485 does not ask the applicant about previous overstays or to list their previous visits.

The problem with my own recommendation is that the couple may not be ready to make the marriage decision before the current VWP visit expires. I'm just saying there is currently an open door.

[Boiler 45,658]

I would be surprised if there was not at least an in country I 601 required.