Leaving USA

[tubesman 3]

My wife came here on a K1 visa, we were married before the expiration. That was June 2014. She has to return to the Philippines. We do not have an AOS on file and cannot file one now. Someone on Yahoo suggest that there may be a 10 year penalty before she can return. Is this true? I know I have to refile to get her back but this whole reason for her trip is a clusterf***.

[cristina16 81]

My wife came here on a K1 visa, we were married before the expiration. That was June 2014. She has to return to the Philippines. We do not have an AOS on file and cannot file one now. Someone on Yahoo suggest that there may be a 10 year penalty before she can return. Is this true? I know I have to refile to get her back but this whole reason for her trip is a clusterf***.

NO. Since you have not filled for AOS she didn't abandoned anything. She just cannot come back without a valid visa. You need to file IR1 for her.

[tubesman 3]

It did seem bogus to me. This is a family emergency and HOPEFULLY when it is all resolved, I will have a wife with a clear head and lower bills so I can have fun with the lady I love!

[cristina16 81]

It did seem bogus to me. This is a family emergency and HOPEFULLY when it is all resolved, I will have a wife with a clear head and lower bills so I can have fun with the lady I love!

I hope so too. Good luck!

[Cyberfx1024 7,978]

But the problem is that you never filed for AOS for her. So YES she might incur a ban in leaving. Even if she goes back to the Philippines you will still have to file a CR1 to get her back here in any case, so why not file for AOS first and then you can file for paperwork allowing for to leave the country and come back while it is processing. But it's up to you in any case, but y'all really messed up by not filing her AOS yet.

[Hypnos 6,576]

She has a bar under INA 212 that will kick in the day she departs the US. If she overstayed at least 180 days but less then 365 days (from the day her I-94 expired to the day she departs the US) then she will incur a three year bar. If she overstayed 365 days or more (which seems likely given the details you gave) then she will trigger a ten year bar on the day she departs the US.

You would need to file an I-130 for her, then once she is found inadmissible at her visa interview (due to the overstay bar) she would then need to file an I-601 seeking a waiver of her inadmissibility. She would need to demonstrate why it would be a hardship to you - not to her - if she were not re-admitted to the US.

Edited October 23, 2015 by Hypnos

[cristina16 81]

I misunderstood you. You didn't file for AOS since June 2014 wedding? And she stayed in US all this time, she is out of status and overstayed her K1 visa. When is she going home? Yes, you will have problems if you will not file for AOS before she go home.

[tubesman 3]

She needs to leave very soon. How likely is a waiver from the I-601?

[baron555 934]

My wife came here on a K1 visa, we were married before the expiration. That was June 2014. She has to return to the Philippines. We do not have an AOS on file and cannot file one now. Someone on Yahoo suggest that there may be a 10 year penalty before she can return. Is this true? I know I have to refile to get her back but this whole reason for her trip is a clusterf***.

You could file AOS now and schedule a quick INFOPASS meeting and ask for an expedited AP so she can leave soon and be able to re-enter the US when her business is complete.

[Cathi 5,618]

NO. Since you have not filled for AOS she didn't abandoned anything. She just cannot come back without a valid visa. You need to file IR1 for her.

wrong, she never adjusted status so she has an over stay. Depending on how long the over stay is the ban will either be 3 or 10 years. He will have to file for a cr1/ir1 and when she is refused at her interview he will have to file a waiver,

[aaron2020 11,651]

Dude, you didn't file for AOS. You let your wife overstay her visa and created this "clusterf...". It's not bogus that she will get a 10 years ban for overstaying her visa. It's the law.

File for AOS and get her AP before she leaves if you want her to be able to come back. This is the solution to your problem.

If you let her leave without AP, then you will dig yourself a bigger hole. A CR1/IR1 will be denied. A waiver would be needed. It will take a year or more for her to be able to come back if everything goes smoothly.

Best of luck.

Edited October 23, 2015 by aaron2020

[aaron2020 11,651]

She needs to leave very soon. How likely is a waiver from the I-601?

You cannot file the waiver until the CR1/IR1 is denied. You will need to prove an extreme hardship (aside from missing each other) to get the waiver. The likelihood of getting the waiver depends on your extreme hardship.

If she needs to leave soon, then you are screwed. Be prepared for her not coming back for at least a year. She will not be allowed on the plane to the US.

Edited October 23, 2015 by aaron2020

[Ryan H 3,795]

Moved from K1 Process & Procedures to Working & Traveling During US Immigration forum.

[AmAjjD 33]

http://www.uscis.gov/green-card/green-card-processes-and-procedures/travel-documents/emergency-travel

Honestly I would consult with an immigrations lawyer on your best option for getting her in/out of the country. It seems like you dug the hole that you are now trying to get out of unfortunately.

[Ryan H 3,795]

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