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leapingpanther

Filling out DS-160 for K-1 with uncertain past OPT status

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Filed: K-1 Visa Country: China
Timeline

Hi everyone,

Long-time lurker of this very helpful forum. My fiancee and I are in the middle of the fiancee visa (K-1) process. Our I-129 has been approved and now my fiancee needs to submit her DS-160. This will be with the Guangzhou, China consulate if it makes any difference.

We are stuck on how best to answer the following question on the DS-160 in relation to evidence for a past Optional Practical Training/OPT status for my fiancee and would really appreciate your help - "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?"

My fiancee has been in the U.S. a few times and the last time she was here on a F-1 visa for her masters. Following that she entered into a 12 month OPT period (which generally requires you to 1) work at least 20 hours a week, paid or unpaid, at a position related to your study and 2) document this appropriately with school/SEVIS). You are also allowed a 90 day grace period of unemployment under OPT.

The problem is that my fiancee was involved in an unpaid project that had flexible working arrangements during her OPT (she had filed this project in SEVIS). Furthermore, we are not sure what type of documentation is required to satisfy both her duration of work on this project and that she satisfied the 20 hour per week requirement. As noted before it was very flexible working arrangements so it is possible there were a few weeks where she did not meet the 20 hour requirement although we think this was unlikely the case. My fiancee also never updated her SEVIS record at the end of her OPT period when she left the country and participated in a few other unpaid side projects that were not documented in SEVIS. So I am not sure if she might have been out-of-status as well for whatever reason. And my understanding that being out of status would mean she is violating the terms of a past U.S. visa.

We think we have a few choices of responding to this question.

  1. Respond yes to the question, and note my fiancee might be out of status under the OPT since we might not have evidence to indicate she was always working 20 hours per week per the OPT requirement.
  2. Respond no to the question, since to the best of belief this is the case. If the consulate asks for more information, we will respond appropriately with the best we have.
  3. Respond no to the question, but attach an affidavit explaining our thought process and the potential problem with documentation. An attorney we spoke to suggested this option but our letter from the consulate noted we were not supposed to include additional documents in our DS-160 submission.

We are wondering if people have insight how to answer this question and how the government looks at these SEVIS/OPT records for the purpose of approving a K-1. We obviously want to be truthful in our answers to the question above but at the same time we do not want to accused of misrepresenting our answers on the DS-160 if for some reason we fail to provide evidence to prove my fiancee was in status during her OPT.

As a related question, I understand there is no statutory bar for less than 180 days of unlawful presence. Presumably any issues with my fiancée being out of status of her OPT, as long as it is under 180 days, would also not result in any bars either?

Thanks so much in advance!

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Did she ever re enter the US after the out of status time frame?

Your NOA2 was approved so it slipped past the USCIS/NVC steps but by no means should you lie because a CO would deny when/if he notices it and you can receive a lengthy ban.

Like you stated, you cannot include any documentation with your ds160 so during you interview, you should put it out there in front. You introducing it with the CO can take the potential bite out out of him/her. They do review the application before you sit in front of them and have developed a line of questioning pre interview. Put yourself in their position and how would you view the application and how would you question it.

Edited by bigjailerman

 

 

K1 Journey Begins

 

NOA1 on March 3, 2016

NOA2 on May 26, 2016

NVC Rcvd Case June 13, 2016

NVC Case and Rcpt # June 16, 2016

Case to Embassy June 16, 2016

Case Ready at Embassy June 20, 2016

Lab July 8 for minor and July 11, 2016 for Fiance

Medical July 11, 2016

Biometrics ACS July 12, 2016

Interview Approved July 14, 2016

Visa Issued via DHL July 16

Visa Arrived July 1

POE September 23, 2016 JFK

Marriage !!!!!!!!!!!! September 30, 2016

 

Next Step AOS..........

  • November 12, 2016 - Express mail to Chicago Lockbox
  • December 5, 2016 - Electronic Notifiaction for AOS, rcvd 11/15
  • December 11, 2016 - NOA1 for EAD, 765 and 485, also accepted fingerprint fee.
  • December 28, 2016 - Biometrics
  • February 14 - EAD  & Advanced Parole Approved and being mailed. 
  • May 4 2017. Approved without interview, Card being Produced
  • May 7, 2017 recvd approval for i485
  • May 10 2017 rcvd Green Cards in mail.!!
  • Next step in 20 months to remove conditions.

 

Removal of Conditions Begins by end of first week of February

 

  • February 5, 2019   - Printing package;
  • February 11, 2019 - ROC package mailed;
  • February 13, 2019 - Package delivered to Dallas Tx;
  • February 15, 2019 - Credit Card Charged;
  • February 19, 2019 - Electronic Notification Rec'd, Case Location LIN - Nebraska;
  • February 21, 2019 - Received NOA with 18 month extension for wife ONLY, not 14yo dependent who is on application;
  • March 12, 2019      - Notified USCIS that we never rcvd i797 for 14 yo minor, they provided a case # and submitted a Svc Request
  • May 2.2019             -  No forward motion, we called again and despite there was an officer assigned to this service request nothing happened/ no extension. We filed an InfoPass and have an appointment for Monday 6th for passport stamp.
  • May 6, 2019 - Attended InfoPass appointment in Philadelphia local USCIS local office for 930. This was for a never rcvd 797 for our 14yo dependent. Arrived 9:15, not crowded at all. No extra photos or fingerprint taken. We were in the car (lots of parking available) at 945. Pleasant female officer, she updated and checked for no changes. Stamped passport, explained is valid for 1 year. The took the green card which expired 5/4/19. No issues or problems.. I asked about the non receipt and she said it's pretty common.. 
  • August 23 - Biometrics NOA, scheduled for 9/3 @1pm
  • September 3 - Biometrics
  • September 4 -Fingerprint Review was completed
  • January 8 - ROC, Card Being Processed, Citizenship is next!
  • January 15 - Card Delivered
     

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Filed: K-1 Visa Country: China
Timeline

Did she ever re enter the US after the out of status time frame?

Your NOA2 was approved so it slipped past the USCIS/NVC steps but by no means should you lie because a CO would deny when/if he notices it and you can receive a lengthy ban.

Like you stated, you cannot include any documentation with your ds160 so during you interview, you should put it out there in front. You introducing it with the CO can take the potential bite out out of him/her. They do review the application before you sit in front of them and have developed a line of questioning pre interview. Put yourself in their position and how would you view the application and how would you question it.

Thanks for the advice. With respect to her re-entering the U.S., she has not entered the U.S. after her OPT expired. How might that change the calculus?

Good point - we will definitely have her be forthright and the situation. I guess my question is for the purpose of the question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" whether we should say NO or YES for now? Or maybe the answer doesn't matter since the CO will go over everything for the interview anyway?

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Filed: Citizen (apr) Country: Argentina
Timeline

Thanks for the advice. With respect to her re-entering the U.S., she has not entered the U.S. after her OPT expired. How might that change the calculus?

Good point - we will definitely have her be forthright and the situation. I guess my question is for the purpose of the question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" whether we should say NO or YES for now? Or maybe the answer doesn't matter since the CO will go over everything for the interview anyway?

To the best of her knowledge, has she done any of those things? I would answer no, because she will have the information to back that answer up at the interview.

In my own experience, I have never violated the terms of a visa. At my interview, the CO accused me of overstaying a B2 (never happened, I had extended my visa with a law firm). It had been more than 10 years and I had been granted a new 10 year B2 after the alleged overstay she was accusing me of. I had all the information she asked me. She wanted to know the POE and thankfully I even had the name of the law firm I used. As I mentioned, more than 10 years had passed and the lawyer told me that they didn't have any records that were more than 7 years old.

So, to the best of my knowledge I had NEVER overstayed a visa. I was always very careful not to. My answer to that question was No

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To the best of her knowledge, has she done any of those things? I would answer no, because she will have the information to back that answer up at the interview.

In my own experience, I have never violated the terms of a visa. At my interview, the CO accused me of overstaying a B2 (never happened, I had extended my visa with a law firm). It had been more than 10 years and I had been granted a new 10 year B2 after the alleged overstay she was accusing me of. I had all the information she asked me. She wanted to know the POE and thankfully I even had the name of the law firm I used. As I mentioned, more than 10 years had passed and the lawyer told me that they didn't have any records that were more than 7 years old.

So, to the best of my knowledge I had NEVER overstayed a visa. I was always very careful not to. My answer to that question was No


 

 

K1 Journey Begins

 

NOA1 on March 3, 2016

NOA2 on May 26, 2016

NVC Rcvd Case June 13, 2016

NVC Case and Rcpt # June 16, 2016

Case to Embassy June 16, 2016

Case Ready at Embassy June 20, 2016

Lab July 8 for minor and July 11, 2016 for Fiance

Medical July 11, 2016

Biometrics ACS July 12, 2016

Interview Approved July 14, 2016

Visa Issued via DHL July 16

Visa Arrived July 1

POE September 23, 2016 JFK

Marriage !!!!!!!!!!!! September 30, 2016

 

Next Step AOS..........

  • November 12, 2016 - Express mail to Chicago Lockbox
  • December 5, 2016 - Electronic Notifiaction for AOS, rcvd 11/15
  • December 11, 2016 - NOA1 for EAD, 765 and 485, also accepted fingerprint fee.
  • December 28, 2016 - Biometrics
  • February 14 - EAD  & Advanced Parole Approved and being mailed. 
  • May 4 2017. Approved without interview, Card being Produced
  • May 7, 2017 recvd approval for i485
  • May 10 2017 rcvd Green Cards in mail.!!
  • Next step in 20 months to remove conditions.

 

Removal of Conditions Begins by end of first week of February

 

  • February 5, 2019   - Printing package;
  • February 11, 2019 - ROC package mailed;
  • February 13, 2019 - Package delivered to Dallas Tx;
  • February 15, 2019 - Credit Card Charged;
  • February 19, 2019 - Electronic Notification Rec'd, Case Location LIN - Nebraska;
  • February 21, 2019 - Received NOA with 18 month extension for wife ONLY, not 14yo dependent who is on application;
  • March 12, 2019      - Notified USCIS that we never rcvd i797 for 14 yo minor, they provided a case # and submitted a Svc Request
  • May 2.2019             -  No forward motion, we called again and despite there was an officer assigned to this service request nothing happened/ no extension. We filed an InfoPass and have an appointment for Monday 6th for passport stamp.
  • May 6, 2019 - Attended InfoPass appointment in Philadelphia local USCIS local office for 930. This was for a never rcvd 797 for our 14yo dependent. Arrived 9:15, not crowded at all. No extra photos or fingerprint taken. We were in the car (lots of parking available) at 945. Pleasant female officer, she updated and checked for no changes. Stamped passport, explained is valid for 1 year. The took the green card which expired 5/4/19. No issues or problems.. I asked about the non receipt and she said it's pretty common.. 
  • August 23 - Biometrics NOA, scheduled for 9/3 @1pm
  • September 3 - Biometrics
  • September 4 -Fingerprint Review was completed
  • January 8 - ROC, Card Being Processed, Citizenship is next!
  • January 15 - Card Delivered
     

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Thanks for the advice. With respect to her re-entering the U.S., she has not entered the U.S. after her OPT expired. How might that change the calculus?

Good point - we will definitely have her be forthright and the situation. I guess my question is for the purpose of the question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" whether we should say NO or YES for now? Or maybe the answer doesn't matter since the CO will go over everything for the interview anyway?

In response to your other question. If she truly believes she didn't overstay and is ready with a valid reason why if she is questioned you can say NO. Does the passport show any stamps or status that makes you think it would raise a red flag?


 

 

K1 Journey Begins

 

NOA1 on March 3, 2016

NOA2 on May 26, 2016

NVC Rcvd Case June 13, 2016

NVC Case and Rcpt # June 16, 2016

Case to Embassy June 16, 2016

Case Ready at Embassy June 20, 2016

Lab July 8 for minor and July 11, 2016 for Fiance

Medical July 11, 2016

Biometrics ACS July 12, 2016

Interview Approved July 14, 2016

Visa Issued via DHL July 16

Visa Arrived July 1

POE September 23, 2016 JFK

Marriage !!!!!!!!!!!! September 30, 2016

 

Next Step AOS..........

  • November 12, 2016 - Express mail to Chicago Lockbox
  • December 5, 2016 - Electronic Notifiaction for AOS, rcvd 11/15
  • December 11, 2016 - NOA1 for EAD, 765 and 485, also accepted fingerprint fee.
  • December 28, 2016 - Biometrics
  • February 14 - EAD  & Advanced Parole Approved and being mailed. 
  • May 4 2017. Approved without interview, Card being Produced
  • May 7, 2017 recvd approval for i485
  • May 10 2017 rcvd Green Cards in mail.!!
  • Next step in 20 months to remove conditions.

 

Removal of Conditions Begins by end of first week of February

 

  • February 5, 2019   - Printing package;
  • February 11, 2019 - ROC package mailed;
  • February 13, 2019 - Package delivered to Dallas Tx;
  • February 15, 2019 - Credit Card Charged;
  • February 19, 2019 - Electronic Notification Rec'd, Case Location LIN - Nebraska;
  • February 21, 2019 - Received NOA with 18 month extension for wife ONLY, not 14yo dependent who is on application;
  • March 12, 2019      - Notified USCIS that we never rcvd i797 for 14 yo minor, they provided a case # and submitted a Svc Request
  • May 2.2019             -  No forward motion, we called again and despite there was an officer assigned to this service request nothing happened/ no extension. We filed an InfoPass and have an appointment for Monday 6th for passport stamp.
  • May 6, 2019 - Attended InfoPass appointment in Philadelphia local USCIS local office for 930. This was for a never rcvd 797 for our 14yo dependent. Arrived 9:15, not crowded at all. No extra photos or fingerprint taken. We were in the car (lots of parking available) at 945. Pleasant female officer, she updated and checked for no changes. Stamped passport, explained is valid for 1 year. The took the green card which expired 5/4/19. No issues or problems.. I asked about the non receipt and she said it's pretty common.. 
  • August 23 - Biometrics NOA, scheduled for 9/3 @1pm
  • September 3 - Biometrics
  • September 4 -Fingerprint Review was completed
  • January 8 - ROC, Card Being Processed, Citizenship is next!
  • January 15 - Card Delivered
     

Share this post


Link to post
Share on other sites
Filed: K-1 Visa Country: China
Timeline

To the best of her knowledge, has she done any of those things? I would answer no, because she will have the information to back that answer up at the interview.

In my own experience, I have never violated the terms of a visa. At my interview, the CO accused me of overstaying a B2 (never happened, I had extended my visa with a law firm). It had been more than 10 years and I had been granted a new 10 year B2 after the alleged overstay she was accusing me of. I had all the information she asked me. She wanted to know the POE and thankfully I even had the name of the law firm I used. As I mentioned, more than 10 years had passed and the lawyer told me that they didn't have any records that were more than 7 years old.

So, to the best of my knowledge I had NEVER overstayed a visa. I was always very careful not to. My answer to that question was No

Thanks - this is helpful to hear. I guess we just have to be prepared for anything :).

In response to your other question. If she truly believes she didn't overstay and is ready with a valid reason why if she is questioned you can say NO. Does the passport show any stamps or status that makes you think it would raise a red flag?

I see - that's what we were thinking as well. I don't think the passport show anything particularly concerning (and the OPT itself was under a separate employment authorization card, not passport). What might be red flags in this case? Thanks for all your responses on this!

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