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K-1 Visa Overstay

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I've been reading around this website and I apologize in advance if I am posting in the wrong area, I wasn't sure what was best.

I am currently seeing someone who is not a US citizen. We've been together for a little less than a year and now have some serious issues to figure out.

He originally came to the US on a K-1 visa, but did not get married to the woman. This was almost two years ago and now he has been an overstay since that point.

Were at the point in our relationship where I am comfortable talking with a lawyer about how we can take things to the next level (get married, etc.... I have been married once before so I am cautious and making sure to take things slow) but there's so much I don't understand about the K1 overstay.

If anyone could help me understand it would be greatly appreciated!

1. Is it true that an adjustment of status for a person with a K-1 overstay is nearly impossible without returning to home country and facing the 10 year ban? I know people with overstays from student visas and work/travel visas who successfully got married and did not have to leave the country. Is the fiancee visa just different? Or do I happen to know some lucky people?

2. What are the best questions to ask a lawyer during a consultation?

3. What options do we have if he is subjected to the 10 year ban from the US? Our options for employment and livelihood in his country is not so great.

4. Anyone have any good news or success stories about K1 overstays for me? Im in need of a little hope right now!

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I've been reading around this website and I apologize in advance if I am posting in the wrong area, I wasn't sure what was best.

I am currently seeing someone who is not a US citizen. We've been together for a little less than a year and now have some serious issues to figure out.

He originally came to the US on a K-1 visa, but did not get married to the woman. This was almost two years ago and now he has been an overstay since that point.

Were at the point in our relationship where I am comfortable talking with a lawyer about how we can take things to the next level (get married, etc.... I have been married once before so I am cautious and making sure to take things slow) but there's so much I don't understand about the K1 overstay.

If anyone could help me understand it would be greatly appreciated!

1. Is it true that an adjustment of status for a person with a K-1 overstay is nearly impossible without returning to home country and facing the 10 year ban? I know people with overstays from student visas and work/travel visas who successfully got married and did not have to leave the country. Is the fiancee visa just different? Or do I happen to know some lucky people? If he did not marry the original petitioner, he cannot marry anyone else and apply for legal status therefore he will have to return to his home country. He does not face a 10 year ban. However, if you want to petition for him he will have to do the process all over again.

2. What are the best questions to ask a lawyer during a consultation? Not much a lawyer can do, but to advise to return and start the process again with you as the petitioner

3. What options do we have if he is subjected to the 10 year ban from the US? Our options for employment and livelihood in his country is not so great.

4. Anyone have any good news or success stories about K1 overstays for me? Im in need of a little hope right now!


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Why would he not face the 10 year ban? Since he has been here illegally for more than 1 year?

Also, is it true that him failing to follow through and marry on his first K-1 visa, he likely will not be granted another? Or this is my understanding, especially taking into consideration his overstay.

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He needs to go home to his home country now. He currently has no legal basis to stay in the US. After he returns home, then you can start a fiance or spouse visa process. Realize that the consequences of his previous overstay will likely warrant scrutiny.


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He will have to leave the US, he cannot adjust his status inside the US by marriage to you; this is a provision of the K-1 visa to prevent exactly what he did. He will have a 10 year ban when he leaves the US. He will receive extra scrutiny due to his failure to comply with the provisions of the K-1 visa as it looks like he is just looking for a green card. You are going to need a lot of proof of having a real relationship and I would suggest getting married and applying for the spousal visa.

You will file the petition and when it is approved he will be schedule for an interview. At that time his visa will be denied and he will be told why; you will need to file a hardship waiver to overcome the ban showing why 1. you need him in the US with you and 2. why the two of you can't live in another country together. That is if he is only denied for the overstay. It is quite possible they will deny him for lack of a real relationship or other reasons.

Good luck to you and a word of warning. I have seen attorneys make say they could do things they can't just to get your money. If your attorney says he can stay in the US and adjust status get details of how this will be done.

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He will have to leave the US, he cannot adjust his status inside the US by marriage to you; this is a provision of the K-1 visa to prevent exactly what he did. He will have a 10 year ban when he leaves the US. He will receive extra scrutiny due to his failure to comply with the provisions of the K-1 visa as it looks like he is just looking for a green card. You are going to need a lot of proof of having a real relationship and I would suggest getting married and applying for the spousal visa.

You will file the petition and when it is approved he will be schedule for an interview. At that time his visa will be denied and he will be told why; you will need to file a hardship waiver to overcome the ban showing why 1. you need him in the US with you and 2. why the two of you can't live in another country together. That is if he is only denied for the overstay. It is quite possible they will deny him for lack of a real relationship or other reasons.

Good luck to you and a word of warning. I have seen attorneys make say they could do things they can't just to get your money. If your attorney says he can stay in the US and adjust status get details of how this will be done.

Im not sure I understand 100%.....because of the previous K-1 visa he would have to leave the us....the suggestion would be for us to get married and then he leave the us (subject to 10 year ban) and once the ban is over petition for spouse visa?

I'm sorry if I don't understand....but if thats how I understand its a pretty crappy situation!

Likely we will have to find some way to make things work, hopefully find some travel opportunities...because us traveling and living in his country (el salvador) is not ideal...not the opportunities we have been working hard for, and sadly his main reason for not returning after K1 expired (fears of going back to the country)

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You can marry now and file for a CR-1, or get engaged and file for a K-1, but he is ineligible to file for adjustment of status within the US due to the reasons stated above. A K-1 can only ever adjust status through marriage to their original petitioner, and unfortunately that isn't you. At some point, if he wishes to get legal he will have to return to his home country. At that point the ten year overstay bar will kick in, and he will be denied at either his CR-1 or K-1 interview. He can then file an I-601 seeking a waiver of that inadmissibility.

Since he already obtained a K-1 once and didn't use it correctly then expect additional scrutiny this time around, no matter which choice you make.

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The issue is he did not live up the his agreement to marry within 90 days. Whatever his reason was not to return to El Salvador, he was informed to return home when his I-94 expired. Since he didnt, and that was almost two years ago, he is subject to removal and a ten year ban. If you still want to have a relationship, you are still able to marry, but he will have to adhere to the ban before he is able to return to the US.

You cannot adjust his status while he is still in the US.


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Im not sure I understand 100%.....because of the previous K-1 visa he would have to leave the us

Correct, because he is here illegally. You do not enter in the equation, even if you were to become married.

....the suggestion would be for us to get married

That is suggested because it ever so slightly increases the odds of obtaining a visa in the future.

and then he leave the us (subject to 10 year ban) and once the ban is over petition for spouse visa?

Correct.

I'm sorry if I don't understand....but if thats how I understand its a pretty crappy situation!

His fault, not yours. He knew what he had to do and didn't do it.

Likely we will have to find some way to make things work, hopefully find some travel opportunities...because us traveling and living in his country (el salvador) is not ideal...not the opportunities we have been working hard for, and sadly his main reason for not returning after K1 expired (fears of going back to the country)

Good Luck and that reason he has stated for not going back works against any visa in the future......if he fears returning so much, why is he wanting to marry you so he can stay longer and legally? Just saying.


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Before he goes anywhere, consult an immigration attorney first. What with Obama granting amnesty to millions of illegals, he might just be able to stay in the USA.

There is no amnesty.

Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

Day 341 (12/10/18) Interview was scheduled for 1/14/19

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Obama never signed an Executive Order granting amnesty as he announced. If he did or will several states already have cases in Court to prevent it from going through. To advice someone to remain illegally in the country because they might receive amnesty of some type at some point in the future is irresponsible when there is a path, albeit costly and long, for him to become legal.

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