waiver for overstayed K-1

[Chiara 0]

I came on a K-1 visa last March, got married within the required 90 days. My husband however did not send documents for my adjustment of status for financial reasons. After a while I realized that our marriage wasn't working out for different reasons, so I left him, and he never filed for AOS for me. This caused me to overstay my fiancee visa for over 6 months, but it hasn't been a year yet. I initiated the divorce, but I don't know if it will be over before it's a year of overstay. I'm planning to leave the US before that happens if I can and then remarry and apply for a waiver. How likely is it that my waiver will be approved since it wasn't exactly my fault I overstayed my visa, thinking that the marriage would work out and that he still had time to file for me if I stayed with him? How long does it usually take for a waiver of that kind to be processed? I'm planning to file for I-130 with another person after leaving the country.

You insights will be greatly appreciated!

[kitkat1 5]

I came on a K-1 visa last March, got married within the required 90 days. My husband however did not send documents for my adjustment of status for financial reasons. After a while I realized that our marriage wasn't working out for different reasons, so I left him, and he never filed for AOS for me. This caused me to overstay my fiancee visa for over 6 months, but it hasn't been a year yet. I initiated the divorce, but I don't know if it will be over before it's a year of overstay. I'm planning to leave the US before that happens if I can and then remarry and apply for a waiver. How likely is it that my waiver will be approved since it wasn't exactly my fault I overstayed my visa, thinking that the marriage would work out and that he still had time to file for me if I stayed with him? How long does it usually take for a waiver of that kind to be processed? I'm planning to file for I-130 with another person after leaving the country.

You insights will be greatly appreciated!

You did not overstay your fiance visa. It's is good for one entry into the country and requires marriage within 90 days. You did all of this.

Consult a qualified immigration attorney before you do anyting.

[Chiara 0]

I did overstay the visa, but not unlawfully, because that visa is supposed to be overstayed. However, since I didn't go through the AOS process, it kind of puts it in the gray area. I did consult an attorney, but he didn't say how long a waiver could take. I guess mine is a rare case, but if anyone had a similar experience, I would be happy to hear about it.

[kitkat1 5]

I did overstay the visa, but not unlawfully, because that visa is supposed to be overstayed. However, since I didn't go through the AOS process, it kind of puts it in the gray area. I did consult an attorney, but he didn't say how long a waiver could take. I guess mine is a rare case, but if anyone had a similar experience, I would be happy to hear about it.

Again, you did not overstay. There is no time requirement for when you needed to file AOS. Most people file earlier but some people wait years.

What kind of waiver did your lawyer say you need and why? It's a "rare case" because there is no case - no waiver is necessary.

[Boiler 43,462]

I did overstay the visa, but not unlawfully, because that visa is supposed to be overstayed. However, since I didn't go through the AOS process, it kind of puts it in the gray area. I did consult an attorney, but he didn't say how long a waiver could take. I guess mine is a rare case, but if anyone had a similar experience, I would be happy to hear about it.

Again, you did not overstay. There is no time requirement for when you needed to file AOS. Most people file earlier but some people wait years.

What kind of waiver did your lawyer say you need and why? It's a "rare case" because there is no case - no waiver is necessary.

She is out of status after 90 days.

If she does not adjust then the overstay will be from that point.

If you can leave within the 90 days plus 6 months (or is it 180 days), then there will be no waiver required.

After that there will be. Just like any other overstay.

Should have left a few months back. Waiver is very Consulate specific as far as how long.

Edited February 20, 2007 by Boiler

[kitkat1 5]

I was under the impression she had already left.

Clearly more than 180 days constitutes an overstay. The reason for the overstay does not matter. The country and the consulate you are dealing with makes all the difference.

[Boiler 43,462]

I was under the impression she had already left.

Clearly more than 180 days constitutes an overstay. The reason for the overstay does not matter. The country and the consulate you are dealing with makes all the difference.

Not my impression, but would not be the first time I have been wrong.

I am going to guess Russia, could be horribly wrong.

[Chiara 0]

Not too far from Russia, actually. Why did you assume that btw?

The circumstances required that I stayed, for a while I was hoping things would get better with the marriage, I wasn't planning on leaving when I got married after all!

What information should I include in the waiver that would be compelling? Did anybody have experience with waivers in Warsaw, Poland?

[john_and_marlene 162]

This is a good reason to not delay the AOS filing. The fact of the matter is, any time after the 90 days and before the AOS is filed are days out of status (overstay). It's not generally a problem because the overstay is forgiven along with an AOS approval. I think it is a great disservice to the foreign spouse to delay the AOS. If anything precludes the filing of the AOS, the foreign spouse can find themselves in a very unfavorable position. For instance, if the USC dies before the filing, the foreign spouse will have to leave the U.S. Accidents happen every day. The filing of the AOS should be an absolute priority.

[kitkat1 5]

Not too far from Russia, actually. Why did you assume that btw?

The circumstances required that I stayed, for a while I was hoping things would get better with the marriage, I wasn't planning on leaving when I got married after all!

What information should I include in the waiver that would be compelling? Did anybody have experience with waivers in Warsaw, Poland?

Check the 601 forum on www.immigrate2us.net

The USC has to write a letter detailing extreme hardship if your visa is denied and he has to relocate to Poland permanently. The letter and the waiver are not filed until your visa is denied at the interview. Then it's a matter of waiting - don't know how long it takes in Poland but I would expect a minimum of 6 months.

[Boiler 43,462]

Not too far from Russia, actually. Why did you assume that btw?

The circumstances required that I stayed, for a while I was hoping things would get better with the marriage, I wasn't planning on leaving when I got married after all!

What information should I include in the waiver that would be compelling? Did anybody have experience with waivers in Warsaw, Poland?

Check the 601 forum on www.immigrate2us.net

The USC has to write a letter detailing extreme hardship if your visa is denied and he has to relocate to Poland permanently. The letter and the waiver are not filed until your visa is denied at the interview. Then it's a matter of waiting - don't know how long it takes in Poland but I would expect a minimum of 6 months.

I would go with www.immigrate2us.net, should be others going through Warsaw there, or who have been.

Country guess, just the use of language, struck me as being East European, not sure exactly why.

This is a good reason to not delay the AOS filing. The fact of the matter is, any time after the 90 days and before the AOS is filed are days out of status (overstay). It's not generally a problem because the overstay is forgiven along with an AOS approval. I think it is a great disservice to the foreign spouse to delay the AOS. If anything precludes the filing of the AOS, the foreign spouse can find themselves in a very unfavorable position. For instance, if the USC dies before the filing, the foreign spouse will have to leave the U.S. Accidents happen every day. The filing of the AOS should be an absolute priority.

The adjudication of the AoS is the important thing, but obviously the sooner you file the sooner it can be adjuducated.

Does not seem the isssue here as the marriage feel apart early on.

[dwar49 0]

Not too far from Russia, actually. Why did you assume that btw?

The circumstances required that I stayed, for a while I was hoping things would get better with the marriage, I wasn't planning on leaving when I got married after all!

What information should I include in the waiver that would be compelling? Did anybody have experience with waivers in Warsaw, Poland?

Check the 601 forum on www.immigrate2us.net

The USC has to write a letter detailing extreme hardship if your visa is denied and he has to relocate to Poland permanently. The letter and the waiver are not filed until your visa is denied at the interview. Then it's a matter of waiting - don't know how long it takes in Poland but I would expect a minimum of 6 months.

I would go with www.immigrate2us.net, should be others going through Warsaw there, or who have been.

Country guess, just the use of language, struck me as being East European, not sure exactly why.

This is a good reason to not delay the AOS filing. The fact of the matter is, any time after the 90 days and before the AOS is filed are days out of status (overstay). It's not generally a problem because the overstay is forgiven along with an AOS approval. I think it is a great disservice to the foreign spouse to delay the AOS. If anything precludes the filing of the AOS, the foreign spouse can find themselves in a very unfavorable position. For instance, if the USC dies before the filing, the foreign spouse will have to leave the U.S. Accidents happen every day. The filing of the AOS should be an absolute priority.

The adjudication of the AoS is the important thing, but obviously the sooner you file the sooner it can be adjuducated.

Does not seem the isssue here as the marriage feel apart early on.

Here is the law on overstays

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e) ) prior to the commencement of proceedings under section 235)(1) or section 240 , and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

It doesnt matter which country, which embassy this law applies to everyone.

If the AOS was not filed, once you go over the 6 month point you will be classed as ineligible for admission.

Under certain circumstance you can apply for a waiver (family related visas are one of them) however the person filing the petition must prove Extreme hardship on their part (your husband, fiancee, mother, father who ever filed petition) if they had to move overseas to be with you. This is not easy to do!!!!!

Also one of the questions asked of you will be "Have you ever been the benificary of an approved fiancee/marriage visa before" You will have to answer yes and then you are going to have to explain why you are doing it again.

One other thing, just filing for the original AOS does not give you leave to remain in the country indefinitly. The original AOS is only good for 2 years, at that time you must still be married to the original petitioner to be granted permenant status. If you have divorced and remarried in the meantime you have to file an AOS all over again and could end up having difficulties with that.

My advice (I am not a lawyer and you need to get one to be sure of this) leave the country as soon as possible. The sooner the better. If you are already over the 6 month point, leave prior to the 1 year overstay point. When your new hubby/fiancee applies you will be required to file a waiver and that is when the country you are a resident of comes into play. Each embassy handles waivers differently and has different time frames and waiver issues. Timelines vary and change over the course of the year. If you do engage an attorney talk to more than one, many immigration attorneys will take your money and not do alot for you. There are good one and bad ones, make sure you retain one that has good reputation.

Edited February 21, 2007 by dwar49

[Boiler 43,462]

There are somes errors in the commentary but I can not bethered to correct them. OP has her answer anyway.

[dwar49 0]

Errors? Such as?

[Boiler 43,462]

It doesnt matter which country, which embassy this law applies to everyone.

If the AOS was not filed, once you go over the 6 month point you will be classed as ineligible for admission.

Under certain circumstance you can apply for a waiver (family related visas are one of them) however the person filing the petition must prove Extreme hardship on their part (your husband, fiancee, mother, father who ever filed petition) if they had to move overseas to be with you. This is not easy to do!!!!!

Also one of the questions asked of you will be "Have you ever been the benificary of an approved fiancee/marriage visa before" You will have to answer yes and then you are going to have to explain why you are doing it again.

One other thing, just filing for the original AOS does not give you leave to remain in the country indefinitly. The original AOS is only good for 2 years, at that time you must still be married to the original petitioner to be granted permenant status. If you have divorced and remarried in the meantime you have to file an AOS all over again and could end up having difficulties with that.

My advice (I am not a lawyer and you need to get one to be sure of this) leave the country as soon as possible. The sooner the better. If you are already over the 6 month point, leave prior to the 1 year overstay point. When your new hubby/fiancee applies you will be required to file a waiver and that is when the country you are a resident of comes into play. Each embassy handles waivers differently and has different time frames and waiver issues. Timelines vary and change over the course of the year. If you do engage an attorney talk to more than one, many immigration attorneys will take your money and not do alot for you. There are good one and bad ones, make sure you retain one that has good reputation.

Edited February 21, 2007 by Boiler