amm7s@mtmail.mtsu

.

But I'm done with this topic.

I've spoken to numerous lawyers about this, and have gotten answers from them. It's clear that people in here just want to be "right". I will follow the legal advice of lawyers that I am dealing with. The stress of having people on a forum have to be right and contradict every step of the way is exhausting.

Just now, Boiler said:

She was working in the US? She was here for a year?

She was not working in the US. No.

1 minute ago, Boiler said:

If she is going to be starting a business in her home country then that makes the whole thing, visiting, CR1 moot.

She already has the business. The USCIS is already aware of it. She's made it known to them on all of her previous visits here.

6 minutes ago, Allaboutwaiting said:

The brochure issued by the USCIS regarding extension that many posters have used as source, clearly states that if the visa holder left after the I-94 expired and the extension was denied, the visa is void.

 

I searched further and found an old case -from 15 years ago- about someone who successfully reentered the US even though they left after the I-94 expiration date, but, the extension request was still pending. 

 

Point is that, we could cite as many sources as possible, have opinions and state facts, but the only way to know if she is allowed entry is trying, as, to my knowledge, there is no customer service or online tool that allows you to check if a visa is still valid. 

 

P.S.: Even if the visa was valid, she could still be denied entry. The possibility is always there.

I understand that she could still be denied entry, for any reason.

But my point is that the same INA 222(g) that has been cited against me, has a specific clause stating that if the alien overstays the I-94, but leaves before the decision is made, that they are not subject to 222(g) (i.e. visa revocation) regardless of approval or denial. The fact that situation is specifically stated leads me to believe that the regular phrasing of "the extension was denied", without the "leaves before the decision was made" qualifier, means that portions applies only to those who are still in the country.

The exact law has a specific qualifier for aliens who overstayed but left before the decision was made, and specifically states "regardless of if the extension is ultimately approved"

I'm no legal expert, but that qualifier matters.

And at least 4 immigration lawyers agree with me.

So can she be denied? Yes. She can be denied regardless, even if she has a valid visa and never had an overstay in the first place. But a valid visa certainly makes is much more likely to get in. A valid visa, with ties to her home country (a business she needs to tend to), certainly make it more likely to get in.

As far as the other inquiry, while there were not travel bans for her going home, I was with her when she was getting flights cancelled on her as late as October. She has documentation of numerous flights booked to go home before her I-94 expired, and those flights being cancelled on her. That's why she filed for the extension in the first place, preemptively to avoid an overstay because she wasn't sure when she was going to finally get a flight and she didn't want an overstay. She has plenty of documentation for all of her attempts to depart throughout her entire stay here. 

With all due respect, I am not getting combative because I'm being told something I don't want to hear...

I am getting frustrated, because when I do exactly what is suggested of me, and go directly to the source (USCIS / INA 222(g)) and find information from those sources that contradicts the statements made here, it is ignored and dismissed.

I am getting frustrated, because when I speak to lawyers (4 different lawyers at this point) who tell me point blank period that her visa is not invalidated, because the portion of INA 222(g) that I am inquiring about is exactly what applies to her, and *all* of those lawyers are advising that we follow through with our July plans, it is wholly dismissed by the people here responding.

I came asking for advice and feedback, but from the beginning, the responses seemed insistent that she could not come back, when I asked for clarification, I was accused of protestation, and when I went to the source and found articles from INA 222(g) that positively supported our case, I was called argumentative, and when I have spoken to lawyers who 100% of them I've spoken to have stated to me very firmly that her visa is not revoked and she can use it to come back over here, even with the extension denial, it is dismissed.

The attitude on this forum does not come off as one that tries to analyze a situation and help find answers or results, but rather one of "I'm right, you're wrong, if you don't like it, tough". I understand that everyone on this forum has dealt with these types of issues in some capacity, which is why I have come here in the past to ask questions, and come here to ask this question, but the insistence that I am wrong, despite having verbiage from the INA 222(g) itself to support my case, and the advice of numerous lawyers, I'm just dismissed as argumentative.

So be it.

4 minutes ago, aaron2020 said:

Why bother coming here for help when all you are going to do is argue?

Why bother coming to offer help when all you are going to do is misread my posts and give incorrect information?

3 minutes ago, aaron2020 said:

Very convenient of you to leave out the paragraph above what you quoted.  I've posted here with the relevant information highlighted.

 

Aliens Admitted Until a Specified Date with Pending Extension or Change of Status Application

If an alien admitted until a specified date files for an extension or change of status, remains in the United States after the date specified on the Form I-94 while the application is pending, and the application is subsequently approved, the alien will not be subject to 222(g). However, if an application in this case is denied, the alien will be considered subject to 222(g) regardless of the reasons for denial.
 

If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved. If the application is found to be frivolous, section 222(g) will apply.

I left nothing out. You're leaving out points in your own quote:

If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved. If the application is found to be frivolous, section 222(g) will apply.

She left while it was pending. The decision came 6 months after she left the country. The wording above clearly states that she is not subject to 222(g) regardless of the decision, because she left while it was still pending.

16 minutes ago, SusieQQQ said:

Can you ask the lawyers why what they say directly contradicts a published USCIS document? That may help clarify matters. 
 

it may help them if you tell them INA 222g is the section in law they are looking for that says a visa is voided when the person overstays. This section of the law is reproduced for you below

 

g. Nonimmigrant visa void at conclusion of authorized period of stay

 

(1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.

 

(2) An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except-

 

(A) on the basis of a visa (other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or

 

(B) where extraordinary circumstances are found by the Secretary of State to exist.

 

—-

Anyway, it won’t affect a CR1. 

 

If you are looking at INA 222g:

"Alien admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application. [Not Subject]"

"If an alien files a timely and non-frivolous application for extension or change of status, and departs the United States after the date specified on the Form I-94 but while the application is pending, he or she will not be subject to 222(g) regardless of whether the application is ultimately approved."

http://myattorneyusa.com/visa-overstays-and-ina-222g

I would imagine this is the portion of INA 222g they are referring to, since this is the most accurate account of her situation. She applied for extension in April. I-94 expired in May. She departed in November. Her decision was given in May.

I'm not protesting. I am seeking clarification, and I am quoting things that I have read / heard, including directly from lawyers. Including lawyers just today who have told me that her tourist visa is not automatically revoked.

If seeking clarification is "vigorous protestation", then I really don't know what else to say.

Thank you for the information.

1 minute ago, aaron2020 said:

Read what you quoted.

 

Yes.

She had a pending request, and departed before the 240 days. She actually departed before 180.

3 minutes ago, Jorgedig said:

"Legal status" for someone who is not in the US makes NO sense.  What do you even mean?

 

And you may want to use the actual USCIS website as your source of info, rather than YouTube and stuff.  

 

0. What if I file for an extension of stay on time but USCIS doesn’t make a decision before my I–94 expires?

   Your lawful nonimmigrant status ends, and you are out of status, when your Form I-94 expires, even if you have timely applied
   to extend your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after
   the petition is adjudicated and USCIS decides your request for extension of nonimmigrant status. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for extension of status pending.

I mean legal status for the time she was here.

Just now, Jorgedig said:

She's no longer in the US, correct?  She was denied the extension, so each day beyond the allowed time stamped in her passport that she remained in the US counts as an overstay.

Yes, but she had an active extension pending. It's been my understanding, from lawyers and other sources that an extension application means you are in legal status while you await the decision. 

Just now, Jorgedig said:

No.

What about this that she sent me:

"As long as you filed the extension application before the expiration date of the current I-94 form, you are in legal status as long as the application is pending or for 240 days, whichever comes first"

1 minute ago, Jorgedig said:

It was denied.  She has an overstay.  She won't be getting another B visa.

So her current visa is cancelled now?

7 minutes ago, Jorgedig said:

It won't impact her approval for a CR-1 visa, but it sounds like you'll have to go there if you want to marry her.

Even if she left before 180 days?

Doesn't she have legal status while she is waiting for an extension to be approved / denied? Does an extension denial mean she can't re-enter the country? She was here for less than 180 days past her original I-9 expiration.

11 hours ago, aaron2020 said:

 

Ignore COVID.  Look at this way.  She was in the US for a year.  She left 3 months ago.  Now she wants to come back.  Does that looks like someone who is visiting the US?  Or someone who lived in the US for a year, took a brief trip abroad, and is now coming back to live with her US boyfriend?  The rule of thumb about visiting the US multiple times is to stay outside the US as much as a person has been inside the US.

Well she's not coming back in tomorrow. We won't be planning a trip for another few months at least. Probably over the summer.

Her last trip here wasn't her first. She's been here multiple times, with a history of always leaving on time. She has family here that she visits, and that is established already. She only over-stayed due to COVID, and that was with multiple attempts to leave on time, before finally applying for an extension before her stay expired in the first place.

3 hours ago, aaron2020 said:

Just because the US Embassy is not processing K-1 right now, it doesn't mean they will not be processing them in 6 months.  Filing the I-129f starts with USCIS which is still processing them.

With a 1 year stay in the US from Nov. 2019 to Nov. 2020, it's highly unlikely that she would be let back into the US at this point.  I wouldn't count on it.  

But when they open back up, they would have a 1 year back log to catch up on, right? Which would by default back us up even longer.

As far as her overstay - even with an extension request, and multiple attempts to reschedule her flight home before her authorized stay was up, and were cancelled beyond her control due to COVID?

On 2/2/2021 at 4:10 AM, Adventine said:

 

 

Also, you've been on this site a few months and I'm sure you've seen the numerous posts comparing the K1 to the spousal visa. I'm not going to dissuade you as I'm another one of those who chose to stay with the K1. Just want to set your expectations that this process is taking much, much longer than anyone expected. Your fiancé has been to the US before - is her US visa still valid? If yes, do take one last time to think about if you really want the K1 or the spousal route. 2020 has shown us that the K1 lost its comparative advantage in speed. Hopefully things will speed up in 2021.

Coming back to this, I did speak with her about switching to the spousal route instead of the K1 route. She does seem to be on board with it, but she is nervous about her entry into the US in the first place, having a fiance here that she would be marrying to apply for a spousal visa. Specifically, her concerns seem to be about her entry interview when she arrives in the US.

I'm not familiar enough with this stuff - I've never even so much as traveled internationally before, so I don't really have much advice to give her. She's very cautious about her status because she doesn't want to do anything that could jeopardize her ability to eventually come over here permanently, as even beyond me she has family over here that she wants to be near.

11 minutes ago, Adventine said:

Manila is processing K1s. Just at a much, much, slower rate, and only for the expedited cases I mentioned above.

 

Each choice has its own advantages and disadvantages. 

 

By the time your K1 petition is approved in some months and you get to the "front of the line" at NVC, maybe the USEM has already cleared its K1 backlog and K1s become faster than spousal visas again.

 

Unfortunately, no one can guarantee which option is faster.

 

You can check VJ members' timeline data to get a more precise idea. Just browse the blue toolbar at the top of the site.

 

 

Thank you so much for the information (and payxibka as well)

I'm actually kind of stuck, at the moment. I thought I had done some pretty thorough research and felt confident about where we stood in this process and how long it would take.

I'm new to visas and the overall immigration process, so I'm unsure how a lot of this works and I'm figuring it all out as I go along.

-I'm not sure how her overstay will impact her visa, and any attempts to come back over. I know she did file for an extension (decision still pending), and I know she left within a year of her initial entry, so her overstay was still less than 180 days, and the amount of time an extension would have given her, but I don't know if she will still be penalized for overstaying in the first place, even with an extension request.

-Because of that, I'm unsure if she can even come over here for us to get married in the first place to start the spousal visa process. If she can tho, even if it takes longer overall, at least we would be able to spend a good chunk of that time together before she would have to go back.

-As we all are, I'm unsure when the embassy will start processing routine K1 visas again, and if they will be up and running again and caught up in the time it takes for our initial application to even be approved.

I do appreciate the information - regardless of any bubble bursting, it is better to have this information now for us to make a decision ahead of time than to make a decision that we might end up getting stuck in. With time being our biggest priority in this, getting stuck in a limbo is what we don't want. I am kinda feeling like that's where her and I are at right now.

If it seems like I am repeating myself, I am just trying to process the information, make sure I am understanding everything being told to me, and have as much clarity about the information as I can have before I discuss major alterations in our plans with her.

Thank you for the responses, everyone!

20 minutes ago, Adventine said:

There are no easy decisions. You will have to decide as a couple what works best for your situation.

 

 

Yea, it's definitely made the decision a bit more complex.

It is frustrating because when I was doing my research, what I saw was that K1 visas were being approved again, and given priority. So it is frustrating now to come across this information that the embassy in Manila just isn't processing it at all right now.

Even under these conditions, what is the time frame for a spousal visa from filing to approval? Would it still take a year or more before she'd be able to come over here?

I guess it would be eased a bit if she could come over here and stay while we file (until she needs to return, of course). It's certainly worth a discussion with her.

I guess we will need to consider: 1. Can she get back over here in the first place? 2. What are the chances that the embassy in Manila will start processing K1 interviews again by the time our application would get approved anyways (so basically, would they start interviews again during our 5-7 month waiting period?) 3. How long in total would the spousal visa if we did choose that route?

Is there a website I can go to to keep track of the Manila embassy operations?

8 minutes ago, Adventine said:

@amm7s@mtmail.mtsu yes, she can travel to the States, you can get married, and you can start filing for the spousal visa while she is there.  

 

But there are two very big IFs:

 

1. If the CBP lets her in again any time soon, given her lengthy overstay last time. There is a general rule of thumb (not supported by any written evidence that I've seen), that it's best to stay outside the States for about twice as long as you're in the States. Otherwise she could be viewed as abusing her tourist visa to live illegally in the US.

 

2. If she does manage to enter the States again soon, you can get married, but she must return to the Philippines at the end of her authorized stay. Overstaying (for a second time in such a short period!) will likely have unpleasant consequences for your petition.

 

If you do not wish to go that route, in my opinion your existing K1 petition is ready to file.

 

For local information, you can also browse the Philippines regional forum here on VJ.

#1 is exactly what she was worried about. Typically, she stays for about 3-4 months or so, and then is gone for the rest of the year. Unfortunately, due to COVID she got stranded here.

For what it's worth, in regards to her overstay, she has documentation of numerous attempts to leave, and her flights being postponed / cancelled due to COVID (the documents from her original entry show her original return ticket scheduled for February), she has a proper extension request before her initial expiration, and she still returned within 180 days of the extension when finally did leave. So while she did overstay, and I'm not a lawyer, I do have to believe this one is an easy one to defend.

But I think that would be our biggest obstacle to doing the spousal visa route. If we were certain she could get in, she would be on a plane back already. She has the motivation and the means to get on a plane today if she could to come back. We did have our reasons for not getting married in the first place when she was already here (it was talked about for sure, but together we decided against it), but if she were able to come back we would both be happy to get legally married.

We would definitely ensure that she would leave before her expiration. That's one reason why chose not to get married, is we felt that getting married during an overstay might actually look pretty bad for her.

But the situation with the embassy in Manila is concerning. I didn't realize they weren't doing K1 interviews. That makes me feel like we might be stuck. Either we go K1 and get stuck not being able to proceed with an interview, or we go the spousal visa route and possibly get stuck if she can't actually get in.

2 minutes ago, Adventine said:

OP, I realize I may have burst your bubble and I'm sorry that I have. But it's best that you know the reality on the ground now, before you file anything. It may save you stress and heartache in the long run.

 

Apart from my personal experience and the sources I cited, you can check this thread (if you haven't done so) for VJ members' opinions: Choosing a K-1 Fiance or CR-1 Spouse Visa in 2021 - What Visa Do I Need - Family Based Immigration - VisaJourney

Nah, it hasn't really burst my bubble, it's just more information to try to process to make this decision.

We have talked about the spousal visa route, but she is uncertain how easily she could actually get back or not, and we have been worried about the lengthy timeline of the spousal visa. If she were to come here, and we get married, are we able to file for the spousal visa while she is here? Or does she have to physically return to the Philippines before we file?

I also hadn't come across that information about the Manila embassy not doing interviews in my research. So I definitely have had incomplete information to this point.

All in all, it is definitely something for her and I to consider before I submit the paperwork.

I do appreciate the input. Honestly, this COVID stuff is my biggest fear regarding this whole visa process. Her and I just want to be together and we're both worried that something is going to happen due to this COVID stuff that keeps us apart.

Thanks for the replies, everyone.

RE: rings - if it's best to leave them out, I'm fine to do so. It wasn't even originally part of my plan, but when I was compiling our photos, I happened across the photo of the rings we had given each other so I figured it might be helpful for the "intent to marry" evidence. But if the letters are sufficient without the pics, I can drop them.

RE: passport stamps - she sent me a complete scan of her passport, so it would show the stamps on it. I'm assuming this would be good enough?

RE: fiance visa v. spousal visa - I have seen that suggested a couple times, but from everything I have gathered, the K1 visa is still taking between 6-9 months (I've even seen as fast as 5-7 for the Philippines before) and the spousal visa is taking 12-18 months, correct? Her US visa is still valid, but she is worried about her coming back over here so soon after her most recent departure. She came here in November 2019, and was supposed to leave in March 2020, but all of the COVID shutdowns happened, and she had numerous return flights cancelled. So she applied for an extension on her 6 month stay, and ended up leaving this past November (less than 180 days beyond her original expiration in May - her extension request is technically still pending, she hasn't received a decision yet, but her I-94 shows "N/A" in her "overstay" section). She's been worried that for her to come back here so soon, especially after being here so long in the first place, that they might become suspicious and not let her in. And as far as myself going over there, they are currently requiring a 2 week quarantine for US visitors, which would completely take up the entire vacation period I'd have to be able to go over there. Considering everything that her and I have been seeing about the processing time for this, 6-9 months versus 12-18 months (assuming that is accurate?), her and I have decided the K1 visa is the one we want. We aren't so concerned about immediate travel after she comes back, nor about the period of time until she can work. Our objective is for her to be here and us be together as fast as is possible. Is there some information I am missing in regards to the time frame the visas are taking?

Thank you again for the replies everyone. I am feeling more confident about this process by the day.