When do I disclose that my Fiance overstayed?

[sabinucsb 1]

I need some help, but my story is a little long:

My Fiance moved here in Sept 2012, and was here as a visitor. She told the CBP that she would only be staying for 2 weeks, but ended up staying a little less than a year. A lawyer advised that we would need a I-94 to get the ball rolling on any documentation, so she advised us to return to Canada and pretend that her trip here didn't happen, so we intended to get a I-94 with the story that she had only been in the US for 2 months instead of the 11 she had been. We drove to Vancouver and expected a quick return with the I-94, but unfortunately the CBP stopped us and long story short, she was refused at the border under 212(a)(7)(A)(i)(I), and we had to return to Canada. What followed was the worst 3 days of my life, I had to drive her back to her parents home in Alberta, and I had to return to USA without her. Now I am working on getting her back here ASAP, and my question is this:

When do I disclose that information?

The CBP officer told us that we should have no problem in getting a K-1, and that was the best route to take. I'm filling out the I-129F and all the documents that go with it according the very helpful guide on this website, but I'm afraid that if I do include this information in the packet that it will hurt our chances of getting approved, but that if I don't include it, it will hurt our chances when she goes to interview at the embassy.

Also, are there any extra steps I need to take, aside from the ones to listed on the guide, because another lawyer told me that I would have to file a I-212, even though it specifically states that I would not have to because we were merely refused entry into USA and were not removed by the Government. Suffice to say, I won't be using either of those lawyers again.

[belinda63 2,981]

Wo she came to the US claiming to be visiting but with intent to immigrate.

An attorney told you, wrongly, that she needed an I-94 although she is from Canada and they don't give those.

Then she left the US and tried to return with the intent to immigrate again, and was caught.

She currently has a three year ban from entering the US. You need to file the K-1 and be totally honest on all the forms. One lie and she could get a life-time ban. After her visa is denied you can file the I-601 waiver for her overstay.

Good Luck.

[CaizLurol 36]

Wow, the attorney gave you incorrect info and wrong advice! You can't lie and say she was here for 2 months when records show she was here for 11!! I believe the ban is 10 years and not 3 because she overstayed more than 6 months. You will have to apply for a waiver (I-601). Instead of the K-1, I'd just get married in Canada and file the I-130 along with the waiver...

Good luck!

[sabinucsb 1]

So, do I need to file the I-601 prior or in conjunction with the I-129F? Or do I have to file the I-129F, wait for it to be rejected and then file the I-601?

The CBP officer told us that if we apply for the K-1, that we would not have any problems since we were honest with them about our lawyer who advised us and that we hadn't had any criminal record in the past. The form is an extra $585, so anything I could spare is a great benefit to me, but if it is going to be rejected anyways it would be best to do it right away, no?

[belinda63 2,981]

oops wait, maybe bad advice. She was authorized to stay for up to six months being from Canada right. So if she left prior to overstaying by six months she has no ban and no waiver needed. I was originally thinking total time stayed.

[lost_at_sea 995]

So, do I need to file the I-601 prior or in conjunction with the I-129F? Or do I have to file the I-129F, wait for it to be rejected and then file the I-601?

The CBP officer told us that if we apply for the K-1, that we would not have any problems since we were honest with them about our lawyer who advised us and that we hadn't had any criminal record in the past. The form is an extra $585, so anything I could spare is a great benefit to me, but if it is going to be rejected anyways it would be best to do it right away, no?

It's totally stupid. You can't do the waiver until you've done the petition and applied for the visa (and eventually get denied). It's punitive. You must be found "inadmissible" before you can apply for the waiver, even if you are already 100% sure you are inadmissible.

Edited September 25, 2013 by lost_at_sea

[ryna 132]

Wow, the attorney gave you incorrect info and wrong advice! You can't lie and say she was here for 2 months when records show she was here for 11!! I believe the ban is 10 years and not 3 because she overstayed more than 6 months. You will have to apply for a waiver (I-601). Instead of the K-1, I'd just get married in Canada and file the I-130 along with the waiver...

Good luck!

I believe it would be an overstay of 5 months in her case because Canadians can stay for 180(?) days (6 mo) in any year, so I don't think the 10 year ban is in effect.

[inlovesalem 17]

HOLAY!! So glad we opted out of using a lawyer...yours sounds like he's on crack! He is soooo misinformed and so sad to see that he is giving this false information to people.

[sabinucsb 1]

The CBP Officer told us 5 years, but I'm looking at the form now, and it doesn't say anything, so I'm assuming it's the 3 year ban. But the officer was very specific in saying that she would only be banned from coming back to the US as a visitor, but that if she had a K-1 Visa, she would be allowed entry into the US.

About the lawyer...It was actually 2 different lawyers...The first said we needed the I-94 before anything else. The second looked at our documentation for inadmissibility and then wrote me to say I would have to file the I-212. I looked at those instructions, which say that if you were merely refused entry to the US and no formal removal was done that you should not file that form.

So still do the I-129F + G325a, wait for it to get rejected, then file the I-601? I see on the flow chart now that that is the case, but I don't understand why the CBP officer would tell us that this ban would not affect our ability for a K-1 visa when clearly it looks like it does...

Maybe it has to do with our specific Determination of Inadmissibility? 212(a)(7)(A)(i)(I) ? has anyone had experience with this specific type of Inadmissibility?

[inlovesalem 17]

Wo she came to the US claiming to be visiting but with intent to immigrate.

An attorney told you, wrongly, that she needed an I-94 although she is from Canada and they don't give those.

Then she left the US and tried to return with the intent to immigrate again, and was caught.

She currently has a three year ban from entering the US. You need to file the K-1 and be totally honest on all the forms. One lie and she could get a life-time ban. After her visa is denied you can file the I-601 waiver for her overstay.

Good Luck.

How do you know she has a 3 year ban? by this? 212(a)(7)(A)(i)(I)?

Just curious

[ryna 132]

The CBP Officer told us 5 years, but I'm looking at the form now, and it doesn't say anything, so I'm assuming it's the 3 year ban. But the officer was very specific in saying that she would only be banned from coming back to the US as a visitor, but that if she had a K-1 Visa, she would be allowed entry into the US.

About the lawyer...It was actually 2 different lawyers...The first said we needed the I-94 before anything else. The second looked at our documentation for inadmissibility and then wrote me to say I would have to file the I-212. I looked at those instructions, which say that if you were merely refused entry to the US and no formal removal was done that you should not file that form.

So still do the I-129F + G325a, wait for it to get rejected, then file the I-601? I see on the flow chart now that that is the case, but I don't understand why the CBP officer would tell us that this ban would not affect our ability for a K-1 visa when clearly it looks like it does...

Maybe it has to do with our specific Determination of Inadmissibility? 212(a)(7)(A)(i)(I) ? has anyone had experience with this specific type of Inadmissibility?

The CBP officer is saying that she won't be allowed entry as a visitor because she has known immigrant intent. There won't be a ban to overcome with the I-601 waiver to get the K-1. She just can't enter the U.S. until she has it in hand. You Canucks have it good!

Edited September 26, 2013 by ryna

[lost_at_sea 995]

So still do the I-129F + G325a, wait for it to get rejected, then file the I-601? I see on the flow chart now that that is the case, but I don't understand why the CBP officer would tell us that this ban would not affect our ability for a K-1 visa when clearly it looks like it does...

Many staff are ill-informed or fail to understand what people actually want to know.

You'll file the waiver after the visa denial - that'll happen at the interview. Check the instructions for the I-601. You'll be #3 in the list of "who may file this form?". http://www.uscis.gov/files/form/i-601instr.pdf If she doesn't actually have a ban in force, then all this is moot and you'll just get the visa. I guess that's one reason why they won't let you even think about waivers until post-interview - knowing if you have a ban can be confusing/unclear.

Edited September 26, 2013 by lost_at_sea

[inlovesalem 17]

I received an i-94 once coming through Montreal and was stamped to return by a certain date, and she also threw out fraud accusations because I went down again almost immediately after returning to Canada (to secure my new job starting in a month's time)...anyhow she scared the poop out of me, and 212(a)(7)(A)(i)(I) seems to ring a bell...but I was never banned...when I returned again during the holidays I wasn't even asked for any ties to Canada...Just what I'm going for and who I would be staying with and for how long.... My boyfriend, for holidays, two weeks. But I may be wrong about that number being on my I94? but there was a long number written on it

[sabinucsb 1]

So say she goes to the Interview with a I-601. Is there anyway they grant her approval on the spot, or would that not be a good idea? I'm trying to get a sense of how much time that will add to the length of time she gets the visa...If it's just a case of having that form when she goes to the interview, well let's just say I want her here as quickly as possible and anything I can do to speed that along I will do.

[lost_at_sea 995]

So say she goes to the Interview with a I-601. Is there anyway they grant her approval on the spot, or would that not be a good idea? I'm trying to get a sense of how much time that will add to the length of time she gets the visa...If it's just a case of having that form when she goes to the interview, well let's just say I want her here as quickly as possible and anything I can do to speed that along I will do.

I think you should read the instructions: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bb515f56ff55d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

And then take a look at this section of the forum: http://www.visajourney.com/forums/forum/113-waivers-i-601-and-i-212-and-administrative-processes-221g/

They won't grant the waiver "on the spot" if she filed in in-person on the day of her interview (even if they allowed her to do that). The form is processed and may take days/weeks/months to be granted, and then they will decide whether to approve the visa now that they can waive the ban. It's not like a definite period of time that's added on.

Edited September 26, 2013 by lost_at_sea