Overstayed, need to leave US for family - what are my options?

[Blue_blood 10]

Hello there. My situation - I came on a tourist visa VWP Dec 13 and got married shortly after. My VWP expried in March 14, I have not filed for AOS since. I need to return to my home country asap for a family emergency and am confused with the various options (or limits) I have at this point. I believe they are:

a) file for AOS now, travel out on an AP. My worry is that I would have to be back in time for the interview processing and my husband might be gone (boot camp) for the interview.

b) travel out now (are there consequences upon leaving the US after overstaying a year?) and have my husband file for C1 or K3 (not sure about the difference), wait for the visa while taking care of my father at home. Waiting time about a year?

c) travel together and file for DCF.

I am absolutely overwhelmed with those choices, partly because I am pregnant and worried very much about my family at home. Any help / illumination would be greatly appreciated, I feel that I am not getting the full scope of understanding of the differences in the processes. Thank you!

[vicks5721 18]

Really I am certain that VWP you are not meant to use for intention to get married. You may get banned for 3 years for overstaying a year, sorry it is the truth. But if you did file now for AOS you may get to stay but it very unlikely as they will know you overstayed and so I doubt it would be approved. If you leave for sure you will be banned for 3 years and from using VWP again or you file for C1 or K3, you will have difficulties though. It probably isn't impossible to get C1 visa but it not be simple in your situation.

Edited February 23, 2015 by vicks5721

[NancyNguyen 1,657]

You have 3-year ban now. Another month you stay, it will be 10-year ban. Forget B, C

You said he would go for boot camp, and then in option C, he would live with you in Germany?

File AOS now then expedite AP due to emergency. But AP is not even your entry guarantee at POE because the fact is that you are overstaying now.

Sorry for dilemma but good luck anyway.

[belinda63 2,981]

Since you say you overstayed a year I guess your VWP expired March 2014? An overstay of 180 days or less is a three year ban. An overstay of 365 days or more is a 10 year ban.

a. File for AOS now.....It will take about 60-90 days to receive AP. You can have it expedited if you show proof of a family emergency. There might be issues re-entering with AP.

b and c At the interview you will be denied for the overstay. This will extend the process by many months and cost more money.

[vicks5721 18]

You have 3-year ban now. Another month you stay, it will be 10-year ban. Forget B, C

You said he would go for boot camp, and then in option C, he would live with you in Germany?

File AOS now then expedite AP due to emergency. But AP is not even your entry guarantee at POE because the fact is that you are overstaying now.

Sorry for dilemma but good luck anyway.

Yep this is true, 10 year ban for 1 year overstay and 3 year ban for 180 days.

The only true thing you can do now is he comes to live with you in Germany.

As overstaying you won't get a visa from US embassy, that I had forgotten about. It's the sad truth.

[vicks5721 18]

You have 3-year ban now. Another month you stay, it will be 10-year ban. Forget B, C

You said he would go for boot camp, and then in option C, he would live with you in Germany?

File AOS now then expedite AP due to emergency. But AP is not even your entry guarantee at POE because the fact is that you are overstaying now.

Sorry for dilemma but good luck anyway.

Yeah when you would go to POE to return to America they would know you overstayed and can deport you, they have the power to make that decision

[Love Marry Stay 1]

This is one of the those cases where you should contact an immigration lawyer and discuss your options. It may cost you some money, but going through with the process, to be denied at the interview is not worth the time and money filing. Get some professional advice before proceeding. Good Luck!

[ValerieA 350]

If you leave the country before getting AP (or a green card) you will have a ban, and will have to file for a spousal visa from your home country along with a waiver for the ban. If you can wait 2-3 months before leaving, that would be best, as you can file AOS now and you will have your AP in 2-3 months, allowing you to leave the country and re-enter.

[ValerieA 350]

But if you did file now for AOS you may get to stay but it very unlikely as they will know you overstayed and so I doubt it would be approved.

This is absolutely untrue. Overstay is forgiven for the spouse of a US citizen (just don't leave the country, it only kicks in then).

[Blue_blood 10]

Really I am certain that VWP you are not meant to use for intention to get married. You may get banned for 3 years for overstaying a year, sorry it is the truth. But if you did file now for AOS you may get to stay but it very unlikely as they will know you overstayed and so I doubt it would be approved. If you leave for sure you will be banned for 3 years and from using VWP again or you file for C1 or K3, you will have difficulties though. It probably isn't impossible to get C1 visa but it not be simple in your situation.

Hi, thank you for your response but you absolutely assumed and read something into my post that is not there. I did not come with the intention to get married (hence tourist visa and not K1). I can definetely stay if I file for AOS, as a spouse of an American citizen overstay does not matter as long as you entered legally (which I did over VW). I was told this by two USCIS people on the phone - there is no ban if I simply stay, file and wait. The only problem is the AP which is EXACTLY my problem as I need to go home sooner rather than later. I would appreciate constructive feedback and not trying to paint me a criminal with the limited info you have read. Thank you.

[Blue_blood 10]

You have 3-year ban now. Another month you stay, it will be 10-year ban. Forget B, C

You said he would go for boot camp, and then in option C, he would live with you in Germany?

File AOS now then expedite AP due to emergency. But AP is not even your entry guarantee at POE because the fact is that you are overstaying now.

Sorry for dilemma but good luck anyway.

Thank you for your response Nancy. The ban will only come into place if I leave on an AP and even then it is a possibility only, depending on the immigration officer upon return. Why do you say B and C are impossible? Please explain. I am just trying to think of options, technically after boot camp he could come for DCF, but I think this option would require him to stay longer.

Thank you again.

[Blue_blood 10]

Since you say you overstayed a year I guess your VWP expired March 2014? An overstay of 180 days or less is a three year ban. An overstay of 365 days or more is a 10 year ban.

a. File for AOS now.....It will take about 60-90 days to receive AP. You can have it expedited if you show proof of a family emergency. There might be issues re-entering with AP.

b and c At the interview you will be denied for the overstay. This will extend the process by many months and cost more money.

Thank you for your constructive response. The ban only comes into place if I leave, that is what you mean, correct? I was told by USCIS that there are NO consequences as long as I file and don't leave the country. This is why AP is a risk, because the ban *might* happen upon return, not if I wait until AOS is through completely. Thank you!

Yep this is true, 10 year ban for 1 year overstay and 3 year ban for 180 days.

The only true thing you can do now is he comes to live with you in Germany.

As overstaying you won't get a visa from US embassy, that I had forgotten about. It's the sad truth.

This is simply not correct. If you entered the US legally, you can file *anytime* (of course, for various reasons the sooner the better) for an AOS and will NOT be denied as a spouse. This is USCIS information.

[NancyNguyen 1,657]

Thank you for your response Nancy. The ban will only come into place if I leave on an AP and even then it is a possibility only, depending on the immigration officer upon return. Why do you say B and C are impossible? Please explain. I am just trying to think of options, technically after boot camp he could come for DCF, but I think this option would require him to stay longer.

Thank you again.

No immigrant visa without a waiver once your ban kick in. File AOS asap and stay until it completes, 3-6 months. Leave with AP and you will take risk being denied entry. Good luck.

[vicks5721 18]

Hi, thank you for your response but you absolutely assumed and read something into my post that is not there. I did not come with the intention to get married (hence tourist visa and not K1). I can definetely stay if I file for AOS, as a spouse of an American citizen overstay does not matter as long as you entered legally (which I did over VW). I was told this by two USCIS people on the phone - there is no ban if I simply stay, file and wait. The only problem is the AP which is EXACTLY my problem as I need to go home sooner rather than later. I would appreciate constructive feedback and not trying to paint me a criminal with the limited info you have read. Thank you.

I wasn't painting you as a criminal sorry if it seemed that way, I was telling you the truth. I didn't realise you had a visa, you said VWP which doesn't need a visa. Also you have already spoken to USCIS then you didn't need to ask here anyway my words may sound too harsh sorry about coming off like that. Any tourist visa is for tourism, if you came at first just for tourism and no intention to get married that is okay usually, though in general immigration does want people to apply for K1 or C1 visa if they do intend to marry at all that is generally the right thing to do by law. I don't know your full story of course. Good luck anyway what you decide to do

Edited February 23, 2015 by vicks5721

[Blue_blood 10]

This is one of the those cases where you should contact an immigration lawyer and discuss your options. It may cost you some money, but going through with the process, to be denied at the interview is not worth the time and money filing. Get some professional advice before proceeding. Good Luck!

Thank you. I am wary of this as my friends have had bad experiences with wrong information given and I wanted to post here first to see if there are others with experience. Thank you again.