K-1 overstay and marriage to a different USC

[Vizjourney 0]

Hi, all.

 

Pretty tough situation ahead. I've met my current girlfriend about 6 years ago. She came to the U.S. on a K-1 that ultimately never lead to a marriage, and she has been here illegally ever since (10+ years). She was pregnant when she got here, and now has a USC daughter. We were talking about getting married, but I never thought this was going to be such an arduous task. From what I've gathered, she can't AOS in the country and we'd have to file for a I-601 waiver that's extremely hard to get, then leave the country and adjust from her consulate. Am I getting the gist of this correctly? I assume having a daughter does not give her any kind of advantage in this situation. She also runs a business here that requires here to be "at work" daily and cannot be done online. 

 

Are there any other options? I will be calling an immigration attorney on Monday, but wanted to check in with this community as well.

Appreciate it!

 

[Boiler 45,664]

I 601a

 

And pretty easy to get.

[Vizjourney 0]

8 minutes ago, Boiler said:

I 601a

 

And pretty easy to get.

Looks like a simplified version of the 601. That gives me more hope! Looks like it still has the hardship section that has an "essay" part to it. You said it's easy to get, do you happen to have any useful links I could refer to? Thank you!

[HRQX 4,145]

3 minutes ago, Vizjourney said:

do you happen to have any useful links I could refer to?

https://www.uscis.gov/policy-manual/volume-9-part-b-chapter-5 "Hypothetical Case Examples"

 

"Below are hypothetical cases that can help officers determine when cases present factors that rise to the level of extreme hardship. These hypotheticals are not meant to be exhaustive or all-inclusive with respect to the facts or scenarios that may be presented for adjudication and that may give rise to extreme hardship. Although a USCIS officer presented with similar scenarios as those presented in the hypotheticals could reasonably reach the same conclusions described below, extreme hardship determinations are made on a case-by case basis in the totality of the circumstances. An extreme hardship determination will always depend on the facts of each individual case."

[Boiler 45,664]

1 hour ago, Vizjourney said:

Looks like a simplified version of the 601. That gives me more hope! Looks like it still has the hardship section that has an "essay" part to it. You said it's easy to get, do you happen to have any useful links I could refer to? Thank you!

http://www.scottimmigration.net/content/i601memo

[aaron2020 11,651]

4 hours ago, Vizjourney said:

Hi, all.

 

Pretty tough situation ahead. I've met my current girlfriend about 6 years ago. She came to the U.S. on a K-1 that ultimately never lead to a marriage, and she has been here illegally ever since (10+ years). She was pregnant when she got here, and now has a USC daughter. We were talking about getting married, but I never thought this was going to be such an arduous task. From what I've gathered, she can't AOS in the country and we'd have to file for a I-601 waiver that's extremely hard to get, then leave the country and adjust from her consulate. Am I getting the gist of this correctly? I assume having a daughter does not give her any kind of advantage in this situation. She also runs a business here that requires here to be "at work" daily and cannot be done online. 

 

Are there any other options? I will be calling an immigration attorney on Monday, but wanted to check in with this community as well.

Appreciate it!

 

There is only one path for her to become a legal permanent resident.  You marry and file an I-130 for her.  She can not adjust status in the US except by marring her K-1 sponsor.  She will need an I-601a provisional waiver for unlawful presence which would be granted before she needs to leave the US.  She will return home to interview for an immigrant visa.  Upon entering the US with her immigrant visa, she automatically becomes a green card holder.

No other options. 

No path through her US citizen child under age 21 to a green card.  Her child could be an extreme hardship for the I-601a.

Edited January 24, 2021 by aaron2020

[Marieke H 2,519]

18 hours ago, Vizjourney said:

I assume having a daughter does not give her any kind of advantage in this situation. She also runs a business here that requires here to be "at work" daily and cannot be done online. 

When describing the hardship, I would focus on the USC daughter, not the business she has been running presumably without work authorization. While overstay and illegal work can be forgiven for the spouse of a USC (be honest about her work history in all forms!), describing the hardship by referring to a business she wasn't allowed to have in the first place won't make a very strong case. 

[caliliving 606]

i would contact a great waiver lawyer.  someone that specializes in waivers!  remember, immigration is federal so i would highly suggest finding the best waiver lawyer, no matter where they live!  Reach out to lizz cannon, she is one of the best! dont just get an average run of the mill fill out a 1-130 type lawyer. 

[Vizjourney 0]

thanks, everyone. i have a lot of reading and learning ahead of me. HRQX, that link from USCIS had some really good stuff in it. Appreciate it!