Singers

The bans are entry bans. Once you accumulate overstay and leave the country you trigger the ban, regardless of whether you marry a USC. It is perfectly possible to be in the country and still have a ban.

However, it is most likely they will not apply the bans because she is Canadian and didn't have an I-94. Canadians are considered to have a Duration of Status (when they aren't issued an I-94) and therefore do not accumulate overstay. This isn't set it stone however as it isn't law, it is only an advisory opinion. They could very easily still give her the ban.

They could also (but pretty sure they won't) charge her with misrepresentation since she lied about her intent at the border with each entry. (living here vs. visiting)

Here is the link for the information on Canadians:

http://www.shusterman.com/up-canada.html

This is of course always assuming that she accumulated overstay of 180+ days at some point.

Yes you can start the paperwork for your fiance while s/he is still visiting as long as they do not overstay their visa.

As to the OPs question, you could go about this two different ways. You can keep the K-1 alive and then have your fiance return to the his home country for the interview/medical etc.

You could cancel the petition and then file for adjustment of status. They will probably ask you why you did this at the interview but other than "we got the process wrong" I don't see it being a problem. He's already in the country, you don't have intent issues...

Consult with an immigration attorney.

You know, when we were adjusting I was in a constant panic looking for a case of misrepresentation based solely on adjusting from a tourist visa.. I never found any. The cases I did find were always complicated by fraud (using someone else's passport) or criminal background etc.

I'd be interested if someone did find a link. I have since stopped my search since we successfully adjusted.

If you'd like to remain in the country and not have to go home for a fiance visa or spousal visa, you need to wait until after you get married. You can only adjust status based on marriage to a US citizen. Once you are married, you will follow the list above.

Sure. It would be INI 212(a)(9)(B )

As soon as you DEPART from the United States you are no longer eligible for entry for 3 years (under 1 year overstay) or for 10 years (more than 1 year).

These are known as the 3 and 10 year bans. They are waiverable.

HTH.

Overstays are only forgiven if you don't leave the US from the time you started incurring the overstay. She has left the US multiple times after incurring her overstay.

The VWP is the Visa Waiver Program. It allows citizens from participating countries (UK for example) to enter into the US without the need for a visa.

You are no longer eligible for the Visa Waiver Program so you need to go to the Embassy and apply for a non-immigrant visitors visa if you would like to visit the States before you apply for your K-1 visa.

You should be ok for the K-1 visa since you did not incur the ban. Records should indicate that you were not illegally present for more than 180 days. (However they have miscalculated in the past so bring proof of your entry and departure!)

Shure, you could try that. And if immigration feels that she entered for the purpose of marrying you, they can kick her out, deny your AOS, and bar her from entering the US for 5 years. There is a reason they have the k-1 process.

Just to clarify, misrepresentation carries a LIFETIME ban from the country but you can apply for a waiver.

You did not incur the ban because you are under the 180 days. (I'd double check your dates and bring proof of this in case they think otherwise.)

I'm sure they will ask you about it during the interview so please tell the truth. It doesn't take them long to figure out when someone is lying.

Please be advised that you CANNOT use the VWP to enter the US. This would be considered fraud. You must apply for a visitors visa in order to enter into the US. (non-immigrant visa)

If you are out of status, legally you have no right to be in the US. That means you can be detained if ICE happens to come across your path. (Knock wood this doesn't happen.)

Your out of status will be forgiven (or at least that is the general practice but you never know) but the longer you wait the worse it looks.

Do you have a 2 year return home requirement?

Get the paperwork in ASAP.

My husband and I were together for 6 years before we got married. The entire time he was in the States on different visas. (Student visa, VWP, H1-B1 etc). We got married and came back to the US. I was supposed to move to his home country. Things happened and we decided it was best to stay here. We adjusted from VWP with no problem.

To adjust from VWP you merely have to ask yourself this:

1. Did I intend to return? and do I have proof of this?

2. Why did I decide to stay? what happened to change my mind?

3. Can I stay in the US for at least a year without leaving until my greencard comes through?

If you can honestly answer these questions without the answer being: I didn't feel like waiting for the immigration process of a K3/K1 etc.. you should be ok. (SHOULD is the word. There is no guarantee).

Yes you can file the K-3 paperwork while you are still here. You need to be back in your country for the interview though. You can either file the K-3 or you can file for the IR-1. (Your I-94 will expire long before you get an interview.)

Haole also has a point. IF you came to the US with no intention of getting married and then decided to get married AFTER you came here, then you can skip the K-3 process and file for Adjustment of Status (greencard). Just realize that you cannot leave the US until you get your greencard. (You can also get Advanced Parole to leave the country but it is not advisable to do so if you are adjusting from a tourist visa.)

Try to send the paperwork as soon as you can. As long as you have a valid visa, you are fine. It is only after your visa expires that you really need to get a move on. Normally being out of status is forgiven at the interview (as long as you didn't leave the country in the meantime) but its not something that you want deal with if you can avoid it.

Yes you can file for a K-3. In fact, that is what you are supposed to do. You can get married in the US and then leave before your visa expires. You will file the K-3 and have the interview in your home country and then return to the US on a K-3 visa.

What the operator meant was that you need to in your home country to interview and receive the K-3 visa.

Our interview was in Seattle. They are very laid back there. I brought the diaper bag with a ton of stuff in it to keep our baby entertained/happy/clean/fed plus my purse (giant handbag). My husband brought a small bag with our portfolio of evidence. We also had our cellphones so that we could call our lawyer who was meeting us at the interview. Nobody said anything when I was talking on the phone.

Does she have a recent paystub? That would show her income (its pretty simple math to figure out what she makes per year based on the paystub.) and if that is above the necessary income level you will be fine. Her employer should have a record of her pay. I'm sure they would be willing to give her something to reflect her income even if it is just a letter stating her current position and salary.

We adjusted from VWP and we were already married.

Yes I would listen to your lawyer.

Though I would appreciate it if you would be willing to tell us the outcome of your case. I'm curious to be honest.

You can put the application in and when he has his orders you can request (through Military Helpline) that your case be expedited because of his orders.

This link should explain it better:

http://www.uscis.gov/files/article/faqmili...iliesupdate.pdf

You have to apply for the K-1 first. It will be denied because you have a 5 year ban. An I-601 waiver is a hardship waiver, basically saying that it would cause your fiancee extreme hardship if you aren't allowed to return to the US. (This is what allows you to enter the US before your 5 year ban is up, IF it is approved.) The I-212 is for deportation.

After you have been denied for the K-1, they will tell you that you are allowed to file the waivers. You have to wait for the waivers to be approved. If they are approved, you will then get your K-1 visa and will be allowed to enter the US. You will then be on the same course as everyone else that applies for the K-1. Must be married in 90 days etc...

Why don't you apply for a K-1 visa (which will be denied) and then put in the necessary waivers (I-601 and I-212). That way you can enter the US legally, work legally (EAD) and eventually get your greencard. The TN1 will be a moot point.

I would go to immigrate2us.net for information on the waivers.

Try not to overthink things... her current annual salary is how much she currently makes per year. So from what you've given us, her current annual income is $26,000.

They will match up the I-130 with all the rest of your documents. My paperwork was crazy (abandoned K-3 process before interview, had an approved I-130 and then applied for AOS from VWP) and they managed to match it up. I had no delays throughout my entire process. In fact, we moved pretty quickly through the system.

I know most people think USCIS is completely incompetent most of the time but don't worry they will put your paperwork together.

I think you had better head over to immigrate2us.net

They have more experience with deportation.

What she's trying to tell you is that if you fail to maintain your status and you are not successful with AOS, you will not have a legal status in US. You are therefore deportable.