Is K1 a bad option for previous visa violators?

[zoeypao 0]

Hi,

I am just getting started on the process of bringing my fiance to the US. Our situation is rather tricky and I was hoping to get some advice. I am new member and have found previous postings really helpful. Thanks!

Ok here is my situation:

My finance has a previous out-of-status violation (on a visa waiver program--he finished up his university degree after his visa extension was denied.) which turned into a long overstay violation (2-3 years). This all happened before April 1997, so I believe the 10 year ban does not apply. Could anyone clarify the penalties before the new ban and 1997 laws were enacted? He did make numerous legal short visits after this (with me.)

Does he qualify as ineligible for the K1?

In the case that he is rejected for the K1, is it possible to appeal the decision and how likely is it that as just a "finance" I could appeal and be successful anyhow?

Is it safer to marry first and try for the green card and expect to appeal on the grounds that he is my spouse?

Any advice would be truly appreciated!

[pushbrk 14,507]

Hi,

I am just getting started on the process of bringing my fiance to the US. Our situation is rather tricky and I was hoping to get some advice. I am new member and have found previous postings really helpful. Thanks!

Ok here is my situation:

My finance has a previous out-of-status violation (on a visa waiver program--he finished up his university degree after his visa extension was denied.) which turned into a long overstay violation (2-3 years). This all happened before April 1997, so I believe the 10 year ban does not apply. Could anyone clarify the penalties before the new ban and 1997 laws were enacted? He did make numerous legal short visits after this (with me.)

Does he qualify as ineligible for the K1?

In the case that he is rejected for the K1, is it possible to appeal the decision and how likely is it that as just a "finance" I could appeal and be successful anyhow?

Is it safer to marry first and try for the green card and expect to appeal on the grounds that he is my spouse?

Any advice would be truly appreciated!

You probaby need to consult a qualified immigration attorney on this and share all information with him. However, you've left out some key facts. Where is your fiance now? If in the US, when in relation to his last entry, did you become engaged?

If he enters on the VWP or wrong visa with the intention of marrying and adjusting status, that's visa fraud and can get him banned. On the other hand, if the two of you decided to marry after he was already here legally, then the chances of a successful status adjustment are pretty good, even with possible earlier overstay.

Edited May 15, 2007 by pushbrk

[zoeypao 0]

You probaby need to consult a qualified immigration attorney on this and share all information with him. However, you've left out some key facts. Where is your fiance now? If in the US, when in relation to his last entry, did you become engaged?

If he enters on the VWP or wrong visa with the intention of marrying and adjusting status, that's visa fraud and can get him banned. On the other hand, if the two of you decided to marry after he was already here legally, then the chances of a successful status adjustment are pretty good, even with possible earlier overstay.

Thank you for your reply. We have been living together in Japan for about 8 years. We met here while both working. (I still work in Japan.) We have only ever traveled inside the US together and visited my family numerous times over the years. I don't know if the previous violations before 1997 in his student years carried any kind bans. He was never deported or informed that he violated and left on his own will.

Does anyone know the penalties before 1997 and how they affect the chances of a K1? Will an appeal be necessary? Should we get married in Japan first and go for the immigrant visa where I have a chance to appeal if he is rejected?

Anyone with similar situations?

Thanks for reading this far....

[eric_and_teresa 10]

Thank you for your reply. We have been living together in Japan for about 8 years. We met here while both working. (I still work in Japan.) We have only ever traveled inside the US together and visited my family numerous times over the years. I don't know if the previous violations before 1997 in his student years carried any kind bans. He was never deported or informed that he violated and left on his own will.

Does anyone know the penalties before 1997 and how they affect the chances of a K1? Will an appeal be necessary? Should we get married in Japan first and go for the immigrant visa where I have a chance to appeal if he is rejected?

Anyone with similar situations?

Thanks for reading this far....

The penalties before the IIRAIRA (Illegal Immigration Reform and Immigration Responsability Act) for what I understand, were time bars from 1 to 5 years . By this time your fiance has already completed his period of ineligibility, as he has remained outside the US since his overstay. Also, the fact that he was never ordered to be removed (deported) and he left on his own, I doubt it that you'll have a problem with that. However it would be a good idea to talk to an immigration lawyer who will give you the right advice, so you guys can be 100% sure this wont be an issue.

If you like reading, check this link: http://www.shusterman.com/toc-nwlw.html there's a lot on information on this subject.

IMO, even if he were to be subject to a time bar, it wouldn't make a difference if you applied for K-1 (Fiance Visa) or K-3 (Spouse visa) because the time bars do not affect when applying, the time bar would affect him when trying to adjust status (applying for green card).

You really have to see a lawyer, just to be 100% sure that there will be no problem.

[no name 1]

Check with an immigration lawyer. Also, see if Japan does DCF.