Applying for K-1 after ban

[InsanelyOne 8]

Due to a series of unfortunate events my fiancé became out of status while he was in the US studying at university on an F-1 visa. Sadly it was a related to him switching schools and although he was enrolled full time throughout his stay they claimed he was out of status because the paperwork for the school transfer was done incorrectly. The decision couldn't even be appealed. He was ordered to leave the country immediately AND they considered him as having overstayed from the original date of his transfer which was over a year.... thus he has a 10-year ban!!! It was so sad and so unfair but we got our affairs in order and left the US just over 9 years ago. Now that it's time to start the process of returning to the States I've contacted a lawyer to handle everything. I'm taking no chances so I'm willing to pay the bucks to get it done right. Based on everything I've read, we can't even apply until the ban is over in Sept 2015. According to my lawyer that's not quite true. She insists that we can apply earlier and we just need to time it such that the K-1 visa is issued after the ban expires. Thus she feels we could start the process as early as 6 months before.

Anyone have any opinions on this?

[kzielu 1,144]

You can start your process whenever you want to, the ban needs to be over at the time of interview at the embassy.

My recommendation - ditch the lawyer, with ban over this is going to be a simple case as it sounds you have plenty of relationship evidence. Also make sure that your fiance has the ban at all - what was his date of departure ? It if was D/S, he may not have a ban.

[InsanelyOne 8]

Sorry.. I don't know all the lingo. What's "D/S"?

[kzielu 1,144]

Duration of Stay - it's what he would have had put on his I-94 at POE (rather than a date by which he had to leave US).

[InsanelyOne 8]

12/2006 is what's on his I-20. That's over a year after we left the US.

[jan22 2,897]

The authorized length of stay (whether date-specific or D/S) is not the issue -- the issue was whether he remained in that status. You don't indicate who they were when you said "they" said he was out of status -- I assume it was USCIS. If so, you're right about the ban.

The good news is that the others are right -- the ban just needs to be over before the visa can be issued. So, if it's already been more than 9 years, I would say file any time now. If it seems to be moving too fast to more-or-less ensure that the interview would be after the ban was served, you can always slow down the process by when you submit the required documents. But I would file the I-129f right now.

Good luck!

[InsanelyOne 8]

Thanks for the replies. We're going to get started soon.

[Boiler 43,401]

Begs the question why K1 and why did you not consider a waiver.

[Mike-eeh and Odie 192]

If it's going to be about a year any way, why not just do the CR-1?

[InsanelyOne 8]

Begs the question why K1 and why did you not consider a waiver.

What would a waiver do? It's still next to impossible for him to get any kind of visa to the U.S. The K-1 is pretty much our only hope.

If it's going to be about a year any way, why not just do the CR-1?

We're a same-sex couple. Finding somewhere to get married legally is a nightmare.

[Boiler 43,401]

I 601 for the overstay

[InsanelyOne 8]

I 601 for the overstay

At this point it really doesn't matter. Even if we start the process now, the ban will be over by the time he's ready to get the K-1 visa.

[Boiler 43,401]

True, time line would be similar, if you have a ban, like others have pointed out probably not the case.