k-1 ESTA overstay (Merged)

[marek0812 0]

My fiance came on ESTA from Spain, overstayed by 7 months. He entered May 30th of 2019 and returned to Spain the 17th of March 2020 because of COVID. Can I petition for the Fiance visa to marry him and have him reunited with me here in the US. or could we marry in Spain and then petition? 

[Dashinka 23,166]

Either will work.  A spousal visa is generally more superior as the spouse enters the US with a GC/ability to work, and it is overall cheaper.  Also, I don't think there is a big time advantage with the K1 anymore.  Regardless of which path you choose, he will have to answer truthfully an any forms or at the interview about his overstay.

 

Good Luck!

Edited July 20, 2021 by Dashinka

[Timona 3,909]

That ESTA priviledge is gone.

CR-1/ K-1 are your only options. CR-1 is better.

[Chancy 6,233]

21 minutes ago, marek0812 said:

My fiance came on ESTA from Spain, overstayed by 7 months. He entered May 30th of 2019 and returned to Spain the 17th of March 2020 because of COVID. Can I petition for the Fiance visa to marry him and have him reunited with me here in the US. or could we marry in Spain and then petition? 

 

You can do either, but he won't be getting any US visa until March 2023 at the earliest since he likely has a 3-year ban.  Might as well pursue the superior visa, so get married and file the I-130 petition to start the spouse visa process.

 

[marek0812 0]

Does the 3 year ban not apply once we are married?

Edited July 20, 2021 by marek0812

[Chancy 6,233]

Just now, marek0812 said:

Does the 3 year bar not apply once we are married?

 

Getting married will not erase his 3-year ban.

 

[Dashinka 23,166]

4 minutes ago, marek0812 said:

Does the 3 year ban not apply once we are married?

An I601 waiver may be available, but he would not find that out until the actual visa interview at the consulate.

[HRQX 4,145]

13 minutes ago, marek0812 said:

Does the 3 year bar not apply once we are married?

It still applies: https://www.uscis.gov/laws-and-policy/other-resources/unlawful-presence-and-bars-to-admissibility

Quote

The 3-year Unlawful Presence Bar

If you are an alien and you are not a lawful permanent resident of the United States, you may be inadmissible for three years if:

• You accrued more than 180 days but less than one year of unlawful presence during a single stay in the United States on or after April 1, 1997; and
• You voluntarily departed the United States before DHS initiated either expedited removal proceedings under INA 235(b)(1) or removal proceedings before an immigration judge under INA 240.

This 3-year inadmissibility period starts when you depart or are removed from the United States. 

 

So at the first visa interview the CO will find him inadmissible, if that interview is on or before 03/17/2023. Then he will file Form I-601 with USCIS: https://www.uscis.gov/i-601-addresses

I am... Seeking an immigrant visa or a nonimmigrant K or V visa and I have been found inadmissible by a consular officer after my visa interview.

 

Mail the Form I-601 to: USCIS Phoenix Lockbox

 

For U.S. Postal Service:

USCIS
P.O. Box 21600
Phoenix, AZ 85036

 

For FedEx, UPS, and DHL deliveries:

USCIS
ATTN: 601/212 Foreign Filers
1820 E. Skyharbor, Circle S, Suite 100
Phoenix, AZ 85034

 

To request processing by a USCIS international office due to exceptional and compelling humanitarian reasons, please review the information about the exceptions to domestic filing is located on the USCIS website at www.uscis.gov/i601centralizationexceptions (PDF, 78.82 KB)

Edited July 20, 2021 by HRQX

[Crazy Cat 39,138]

1 hour ago, marek0812 said:

My fiance came on ESTA from Spain, overstayed by 7 months. He entered May 30th of 2019 and returned to Spain the 17th of March 2020 because of COVID. Can I petition for the Fiance visa to marry him and have him reunited with me here in the US. or could we marry in Spain and then petition? 

He didn't have to overstay.  Now, he will either need a waiver or he will have to wait 3 years before entering the US for any reason.  In addition, his ESTA is, forever, gone.  

Every couple has their own priorities, and each couple must decide which visa is better for their situation.

K-1        
    More expensive than CR-1    
    Requires Adjustment of Status after marriage (expensive and requires a lot of paperwork)    
    Spouse can not leave the US until she/he receives approved Advance Parole (approx 6-8 months)    
    Spouse can not work until she/he receives EAD (approx 6-8 months)    
    Some people have had problems with driver licenses, Social Security cards, leases, bank account during this period    
    Spouse will not receive Green Card for many months after Adjustment of Status is filed.
    A denied K-1 is sent back to USCIS to expire
  

CR-1
    Less expensive than K-1    
    No Adjustment of Status(I-485, I-131, I-765) required.    
    Spouse can immediately travel outside the US    
    Spouse is authorized to work immediately upon arrival.    
    Spouse receives Social Security Card and Green Card within 2 or 3 weeks after entering the US    
    Opening a bank account, getting a driver's license, etc. are very easily accomplished with GC, SS card, and passport.

    Spouse has legal permanent Resident status IMMEDIATELY upon entry to US.
  �

 

[Ontarkie 13,883]

~~Moved to What Visa Do I Need, from K1 P&P - the OP has not started the process yet~~

[SusieQQQ 11,584]

1 hour ago, marek0812 said:

Does the 3 year ban not apply once we are married?

If he had overstayed but not left the overstay would have been forgiven at AOS, assuming you are a citizen. Because he left he triggered a ban which you will need a waiver to overcome. 

[seablock 23]

5 hours ago, Lucky Cat said:

 

CR-1
    Less expensive than K-1    
    No Adjustment of Status(I-485, I-131, I-765) required.    
    Spouse can immediately travel outside the US    
    Spouse is authorized to work immediately upon arrival.    
    Spouse receives Social Security Card and Green Card within 2 or 3 weeks after entering the US    
    Opening a bank account, getting a driver's license, etc. are very easily accomplished with GC, SS card, and passport.

    Spouse has legal permanent Resident status IMMEDIATELY upon entry to US.
  �

 

I would mention that the CR-1 was no picnic for us as it took us over two years to get the 10 year green card after filing a telephone book sized petition in June of 2019.    In our case we did not get a green card for more than 90 days after the first approval and would still be waiting if we had not pressured (lawsuit) USCIS to approve it again and issue the green card.  ROC is the USCIS's red-headed step child and clearly not one of their priorities.

[HRQX 4,145]

2 hours ago, seablock said:

I would mention that the CR-1 was no picnic for us

Note that there are also plenty of K-1 couples who regretted their choice. But most of us here on VJ try to help people make educated choices while realizing that each couple have different circumstances.

2 hours ago, seablock said:

ROC is the USCIS's red-headed step child and clearly not one of their priorities.

That's true but most K-1 holders also end up getting 2-year GC and thus having to go through ROC.

2 hours ago, seablock said:

In our case we did not get a green card for more than 90 days after the first approval

Yup, post-entry with an IV is not guaranteed to be a smooth sailing since USCIS is generally prone to sometimes screw something up. But upon Day 1 the CBP-endorsed IV is an I-551 document: https://www.uscis.gov/i-9-central/temporary-i-551-stamps-and-mrivs

 

While K-1 visa holders have to wait many months after entry to get either I-766 or I-551.

Edited July 21, 2021 by HRQX

[marek0812 0]

Can my husband and I submit the application and start the process for K1 visa prior to the end of a 3 year ban for overstaying more than 180 days under a year? I was also told that ultimately the consular has the choice whether or not to enforce the 3 year ban? 

[powerpuff 5,869]

Are you married?