waiver for overstayed K-1

[dwar49 0]

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.

Okay not going to argue about this, but as i have the time i can put all the references to the statements i placed in my original post, the one i do happen to have handy refers to the AOS. The only mistake i made was in saying she had to refile the AOS. O did make a mistake there, actually here is what happens at the end of the conditional period.

Who May File This Petition?

If you were granted conditional resident status through marriage to a U.S. citizen or permanent resident, use this form to petition for the removal of those conditions. If you are still married, the petition should be filed jointly by you and the spouse through whom you obtained conditional status. However, you may apply for a waiver of this joint filing requirement if:

You entered the marriage in good faith, but your spouse subsequently died;

You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;

You entered the marriage in good faith and have remained married, but have been battered or subjected to extremecruelty by your U.S. citizen or permanent resident spouse; or

3. Evidence of the Relationship.Submit copies of documents indicating that the marriageupon which you were granted conditional status was enteredin ''good faith'' and was not for the purpose of circumventingimmigration laws. Submit copies of as many documents asyou wish to establish this fact and to demonstrate thecircumstances of the relationship from the date of themarriage to the present date, and to demonstrate anycircumstances surrounding the end of the relationship, if ithas ended. The documents should cover, but not limited to,the period from the date of your marriage to the filing of thispetition. Examples of such documents are:

The termination of your status and removal would result inextreme hardship.

I stand corrected and will be more specific in the future. I am still looking up what happens if you were never granted conditional residence. Prior to the marriage ending in divorce.

[Boiler 43,462]

It is not just the petitioners hardships that count, those of other USC's and PR's do.

Success rate obvioulsy varies, if you are going through CDJ, Mexico which must have the most trade, it is a very good shot. I have never seen a properly worded waiver refused through CDJ, must be one out there. And they handle hundreds if not thousands every week.

It is not a case of filing the AOS, it is the adjudication. An abandoned AOS is no different to no AOS.

If you divorce then as a CPR you file solo. You mention some of the issues you need to address, to my surprise many people noe get their 10 year GC without interview in these circumstances. You do need to be divorced, not seperated.

[kitkat1 5]

It is not just the petitioners hardships that count, those of other USC's and PR's do.

Success rate obvioulsy varies, if you are going through CDJ, Mexico which must have the most trade, it is a very good shot. I have never seen a properly worded waiver refused through CDJ, must be one out there. And they handle hundreds if not thousands every week.

It is not a case of filing the AOS, it is the adjudication. An abandoned AOS is no different to no AOS.

If you divorce then as a CPR you file solo. You mention some of the issues you need to address, to my surprise many people noe get their 10 year GC without interview in these circumstances. You do need to be divorced, not seperated.

Depends on the consulate. Some don't take into account the hardships of anyone but the petitioner. Others request a letter from the beneficiary as well.

Success rates in CDJ have been trending downward - there have been quite a few denials in the past few years. The assumption has been that they did not provide enough evidence in the form of documentation and focused only on financial and/or emotional hardship. London apparently has the highest approval rate.

The OP would mostly like end up with the waiver being transferred to Frankfurt where approval rates are also high.

[John & Annie 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.

Have you checked this out.

I was under the impression and was told by a USCIS immigration officer that a person entering on a K1 visa, once married was lawfully present in the United States.

There have been cases here on VJ that people have waited over two years to file for AOS and not had to file a wavier. How could this be?

She is still married to the USC?

[kitkat1 5]

I was under the impression and was told by a USCIS immigration officer that a person entering on a K1 visa, once married was lawfully present in the United States.

There have been cases here on VJ that people have waited over two years to file for AOS and not had to file a wavier. How could this be?

She is still married to the USC?

Those people stayed married to the original petitioner and eventually filed for AOS. She did not stay married, did not file AOS, did not leave (yet) and another USC is going to petition for her. That visa will be denied due to her illegal presence and at THAT point she will need a waiver to overcome it.

[John & Annie 0]

I was under the impression and was told by a USCIS immigration officer that a person entering on a K1 visa, once married was lawfully present in the United States.

There have been cases here on VJ that people have waited over two years to file for AOS and not had to file a wavier. How could this be?

She is still married to the USC?

Those people stayed married to the original petitioner and eventually filed for AOS. She did not stay married, did not file AOS, did not leave (yet) and another USC is going to petition for her. That visa will be denied due to her illegal presence and at THAT point she will need a waiver to overcome it.

I understand these are two different situations.

My question is, if you have married within the 90 days, are you legally present in the US?

Obviously if you file for adjustment you are in a pending status. I am talking about if you do not file.

[john_and_marlene 162]

I was under the impression and was told by a USCIS immigration officer that a person entering on a K1 visa, once married was lawfully present in the United States.

There have been cases here on VJ that people have waited over two years to file for AOS and not had to file a wavier. How could this be?

She is still married to the USC?

Those people stayed married to the original petitioner and eventually filed for AOS. She did not stay married, did not file AOS, did not leave (yet) and another USC is going to petition for her. That visa will be denied due to her illegal presence and at THAT point she will need a waiver to overcome it.

I understand these are two different situations.

My question is, if you have married within the 90 days, are you legally present in the US?

Obviously if you file for adjustment you are in a pending status. I am talking about if you do not file.

If you do not file, the days after your I-94 expire are out of status days. They will count against you if you don't make it eventually to an AOS approval.

If you file for AOS while in status, no overstay days accrue. If the AOS is denied, no overstay accrued.

If you file for AOS out of status, the overstay days stop with the I-485 receipt--unless the AOS is denied in which case all days since the I-94 expired are overstay days.

[John & Annie 0]

That still does not answer the question.

is the spouse "legally present" in the US

[kitkat1 5]

That still does not answer the question.

is the spouse "legally present" in the US

Apparently only until the I-94 expires. At that date plus 180 days, illegal presence begins to accrue. This normally wouldn't impact anyone because AOS is normally filed in a timely fashion. Even if it wasn't, overstay is forgiven via marriage to a USC.

[john_and_marlene 162]

Illegal presence begins at the expiration of the I-94. After 180 days of illegal presence a 3 year ban is imposed.

No, you are not here legally after the I-94 expires if AOS is not filed. That's why those who end up divorced or widowed after not filing for a long time find themselves in a serious situation with no relief. They have large overstays and are not eligible to adjust status. When they do leave/are deported, they also have bans from reentry depending on the amount of time they stayed.

[Boiler 43,462]

That still does not answer the question.

is the spouse "legally present" in the US

Apparently only until the I-94 expires. At that date plus 180 days, illegal presence begins to accrue. This normally wouldn't impact anyone because AOS is normally filed in a timely fashion. Even if it wasn't, overstay is forgiven via marriage to a USC.

I was out of status for a week or so, my I-94 had expired and I did not have my receipt. Technically deportable. The AOS receipt got me back into status and I subsequently adjusted.

[John & Annie 0]

That still does not answer the question.

is the spouse "legally present" in the US

Apparently only until the I-94 expires. At that date plus 180 days, illegal presence begins to accrue. This normally wouldn't impact anyone because AOS is normally filed in a timely fashion. Even if it wasn't, overstay is forgiven via marriage to a USC.

I was out of status for a week or so, my I-94 had expired and I did not have my receipt. Technically deportable. The AOS receipt got me back into status and I subsequently adjusted.

Yeah, I did some research.

we were misinformed by a immigration officer