Am I barred from entry now!!!!!?????

[kilmerj 0]

Sure hope someone can help or point us in the right direction.

Okay here's the story.... My son who was in the United States Air Force finally decided to marry his longtime girlfriend who lives in the UK. They did all the precursory steps and acquired a K1 visa. She traveled to the US on her K1 visa and they were married within the 90-day timeframe permitted. However they took NO FURTHER ACTION after they were married. She stayed in the US for 15 months before she had to return to the UK because her mother got very ill and required hospitalization. They are now under the impression that she is banned from entering the US for 10 years. Is this true?

We wanted her to come visit for Thanksgiving this year. Can she still be permitted into the US on a 90-day tourist visa?

What are our options?

Thanks in advance.

J. Kilmer

[Pitaya 2,577]

~Moved from K1 to Moving and Traveling During US Immigration Forum~

~Inquiry about visitor travel to US after AOS abandonment~

[JohnR! 5,495]

Yes, she most likely has a ban on entering the US for 10 years and in all likelihood she won't be allowed back into the US without a tourist visa, since her VWP privileges should have been revoked. She will need to apply for a tourist visa and go through the process, including filing for a waiver, which may or may not be granted, depending on her specific case. This may take up to one year.

However, if they are still married and not separated, her husband can petition for her greencard, (CR/IR visa) provided she intends to come and live in the US. In that case she will need to file for a waiver, as part of her visa process, which for spouses of USC is just a formality. The entire process should take a little more than one year.

Good luck.

Edited November 3, 2014 by JohnR!

[kzielu 1,149]

True.

[MacUK 983]

The problem you'll have is that she has less chance of being approved for a tourist visa as she has shown definite immigrant intent. The CO is likely to presume that she will use a B2 visa to bypass the CR1 process and would be obliged to refuse the visa.

As has already been said, she will never be able to travel via VWP again.

It's not impossible for her to get a B2 but you shouldn't count on her being back for Thanksgiving.

[MmmBlondie 8]

Maybe its best they try the CR1 as travel on a tourist visa is unlikely and using her WVP is not going to work.

Can I ask why they married but did not start the AOS process in the 15months she lived in the US before returning back to the UK? I hope everything works out for them though & please thank your son for his service. My husband is also US AF and I'm very proud.

[Nich-Nick 3,354]

I know an American married to a foreigner who left the country and couldn't come back because of a long overstay. The CR1 was denied. They applied for a waiver. It was also denied. I read the entire denial report which was quite detailed...about 3-4 pages single spaced. I was surprised that they outlined all the reasons in such detail. It was generally because they did not prove extreme hardship to the American. I didn't think whoever prepared their waiver did a great job, but there was the usual minor children to care for, a job with licensing he couldn't transfer to another country (loss of income), an elderly relative to care for, an ex-military serviceman, and psychiatric evaluation of stress related depression cause by the separation. They denied it and pointed out where the waiver fell short, mainly for lack of better documentation to prove each point.

So an immigration attorney who specializes in waivers would be essential in my opinion, based on the denial I read.

[UnaMexicana 153]

So sorry to hear about her situation. Indeed, this is the time to contact a good immigration lawyer with experience in waivers. Get two or three opinions and then decide what is the best route.

All the best,

UnaMexicana

[belinda63 3,039]

All the above applies but to clarify for you, the son, the foreign spouse, and other readers. Having a USC spouse does not grant any immigration benefits or rights to live in the US to a foreign spouse. They did correctly by applying for the K-1 and getting married in the 90 day time frame. But after the marriage they should have filed AOS (adjustment of status) to obtain her green card. Just getting married did nothing to grant her rights to live in the US. Just as a person from another country who comes to the US and marries a USC or has a USC child does not automatically have the right to live in the US legally. There are procedures to follow and paperwork to file and of course money to pay.

Since she remained in the US for more than 365 days after her period of authorized stay she has a 10 year ban which began on the day she left the US. The ban can be overcome but it is unlikely she will get a tourist visa with a. an overstay and b. a USC spouse. She no longer qualifies to use the VWP. There are now two options: 1. File for the CR-1 visa, which will be denied, then file the I-601 waiver for the overstay. or b. serve out the 10 year ban.

[NigeriaorBust 4,087]

It would be hard for a USC to prove hardship when the spouse lives in the UK. Definately an uphill battle.

[Transborderwife 4,666]

Not being judgemental but I have a question. Was he in the Air Force while they were married? Don't most branches of the military require you to report any relationships with foreign nationals?