Will previous overstay be an issue at NOA2 or Consultate Interview?

[C8787 2]

Question:

Is overstay grounds for K1 denial at moment of NOA2, or it is something that comes up at consulate?

There is uncertainty around whether or not I have a 13 month overstay between AOS/485s while I was in the states (family process, father is LPR). I was denied based on age (took them so long I crossed 21) so I left. When AOS was denied, the letter said I would have to leave because I was in the country while processing. I left a few months after that. I've consulted various immigration experts and none are clear on whether or not I actually accrued any unlawful presence.

Now I'm engaged to a USC and in K1 process.

My question is, at what part will this come up - if it's an issue?

Thanks!

[Penguin_ie 5,986]

If it is an issue, it will come up at interview.

How many months after the denial of AOS did you leave? How long ago was it? The ban may be spent already, IF there is one...

[C8787 2]

I left 87 days after the final denial. When the original petition was denied, we filed a motion to reopen. It took 13 months to get the receipt, but it was filed immediately. It's never come up in the past at POE- I traveled between the states and Latin America a lot for work while 485 was being processed and entered the US 18 times without issue or mention of unlawful presence. I don't know if they look for that, but I would assume so? That's why I'm so confused.

13 months were in 2010-2011 timeframe, so if there's a ban, it hasn't elapsed yet. I would have to file a waiver. Don't want to go down that rabbit hole of thought just yet.

[Starkilla09 366]

You're fine. If there was any sort of ban you wouldn't have been allowed entry to the U.S as CBP checks that before admission. At the point where your immigrant benefit was pending USCIS adjudication you were automatically in lawful presence until it was adjudicated (which in this case was denied) before your unlawful presence began to kick in. Besides your 87 days overstay doesn't carry a ban as well because you have to be unlawfully present for at least 180 days to kick in 3 year ban or 1 year or more for the 10 year ban to kick in.

[Penguin_ie 5,986]

I agree that your overstay in the 87 days, and there is no ban for that.

You will get questions about it, and your whole AOS process at interview, and they will likely look a little closer at your bonafide relationship evidence to make sure you are not using your fiance for a greencard (be sure you have lots of evidence of tiem spent togetherm, and, preferably, have her be there for the interview) but you should be fine