JimVaPhuong

It's a problem because it raises the possibility that the relationship is primarily for the purpose of immigration, which is specifically prohibited under US immigration law. I'm not questioning your motives, and neither is the consulate. They are questioning her motives, and they think you might be an unwitting accomplice in a plan to gain immigration benefits. Regardless of how much you know your relationship is sincere, consulates in 3rd world countries deal with a great deal of immigration fraud. The only way they can separate the wheat from the chaff is by the evidence they see. What they see in your case is a petitioner who was previously married to a girl from a 3rd world country, and is now divorced and that girl is a permanent resident in the US. Now they see the same thing about to happen again, and they're wondering if you aren't a one-man immigration portal to the US, even if this isn't your intention.
Let's look at the reality of this situation. The US has a relatively high standard of living, especially compared to 3rd world countries. Because of this, a LOT of people want to immigrate to the US. In order to prevent the country from being inundated by the world's poor, the US government has placed strict quotas on immigration, and try to give preference to those that can contribute to the nation's economy, and help maintain the high standard of living for everyone. They make a special exception to these quotas and rules for American citizens who want to marry someone from another country. This is a courtesy they extend on behalf of the US citizen. Because there is a high potential for this exception to be abused, they have to scrutinize cases for signs of fraud. Unfortunately, those signs exist in your case because of your prior history with immigration by marriage, and because of how you met your fiancee. They suspect her first priority is getting out of her country, and not necessarily having a sincere relationship with you.
I don't know how many people on VJ met through an online dating service. However, I know that it's not "almost everyone", and it's probably not even most. That's hardly the point, though. A consulate in a high fraud country is suspicious of every relationship, even if the couple met by chance while the American citizen was a tourist in the beneficiary's country. The level of suspicion may be higher if it looks like the beneficiary was shopping for foreign spouse.
I'm not judging your case. I don't know you or your fiancee. I'm only explaining why the consulate was suspicious, and why they ultimately denied the visa. If your relationship is sincere, you'll weather this storm. Most people who are persistent will eventually succeed. More visits, more time together, perhaps getting married and filing for a CR1, and collecting a lot more evidence. These all can improve your chances of succeeding next time.

Seriously, you DID mean May 2011, right?
As far as I know, this is up to the CBP officer. If you show up at the port of entry with more than one valid entry visa, the CBP officer will determine if they allow you into the US, and which visa will be the basis of your entry. Since they usually ask a question or two about the purpose of your visit, they may choose the visa based on the answer. Some members have posted that they were able to gain entry without having to use the K1 visa that was in their passport, but that's no guarantee it will work for everyone.
The safest bet would be to plan on getting married the next time he enters after he's got the K1 in his passport.

I think the first thing you need to do is find out what happened with the I-94. That could be critical. If your overstay is determined to have been less than 180 days, then there is no automatic ban. The I-94 is supposed to be surrendered when you leave the US. That is how your length of stay is determined. I'm not sure that surrendering it to a customs authority in Australia will result in your departure being properly recorded by the CBP in the US.
If needed, you can contact the CBP and have your departure properly recorded, even without the I-94.
https://help.cbp.gov/cgi-bin/customs.cfg/php/enduser/std_adp.php?p_faqid=752&p_created=1077641280
Provide as much of the listed evidence as you can to prove you actually left when you claim to have left. Once your departure has been recorded, the overstay will be noted in your record, but no automatic ban will be issued provided your overstay was less than 180 days.
In all likelihood, you will not be able to get another visitor's visa to the US, even once your departure has been properly recorded. You are an alien who is married to a US citizen, and who has a history of overstay. There is a very strong chance they will presume you intend to immigrate if you try to enter the US again. Your marriage to a US citizen makes you eligible to apply for a green card, but entering with a non-immigrant visa with the intention of immigrating is fraud.
The advise your attorney gave you is the safest route. Although you would have been eligible to simply apply for a green card while you were still in the US, and your overstay would have been forgiven, there is a possibility that USCIS might have presumed you intended to immigrate when you entered with your visitor's visa. If USCIS would have denied the green card application on this basis, you would have been deported for material misrepresentation, and possibly banned from the US for life. This risk vanishes when you return to Australia and apply for a CR1. Presuming your overstay was less than 180 days, and you did not incur a ban, then you won't need to apply for a waiver.
As far as moving to Australia for a couple of years with a green card, that's not possible. You can apply for a re-entry permit before you leave, which will allow you to stay out of the US for between 1 and 2 years. If you're gone longer than that, or if you don't get a re-entry permit and are gone more than 6 months, they can presume you've abandoned your residency and revoke your green card. A green card holder must RESIDE in the United States in order to be classified as a "permanent resident".

I asked when the claim to US citizenship was made because if it were made before September 30, 1996, then it's possible that no ban would be in place. The 1996 Immigration Act amended the INA to change what constitutes an inadmissibility for falsely claiming US citizenship. After September 30, 1996, any claim of false US citizenship, whether for public or private reasons, would make the alien inadmissible. Prior to September 30, 1996, the claim must have been made to a US government official, and for the purpose of evading immigration law. In other words, if you made a false claim of US citizenship to an employer in 1995 for the purpose of getting a job, then you would NOT be inadmissible. That same claim made after September 30, 1996, WOULD make you inadmissible.
That's why the timing of the claim, and who the claim was made to, might be very important. If the alien IS inadmissible because of the claim, then there is no waiver possible.

Most consulates will accept assets to offset a shortage in income. If they apply the I-864 rules for assets, which many consulates appear to do, then there are some rules that apply to accepting assets to offset a shortage of income.
First, the assets have to be worth 3 times the shortage in income. In other words, if the income is short by $1000, then you'd need at least $3000 worth of assets. The 3:1 rule applies when sponsoring a family member (a fiance would count as a family member). For everyone else, it's 5:1. The 5:1 rule would apply to a co-sponsor.
Second, the assets have to be something you can convert to cash within 12 months without considerable hardship or financial loss. Selling your only car would be considered a hardship. Cashing out an investment instrument before it matures would be a financial loss. If your fiance's savings are in a conventional savings account, then he can include them as assets. If they are invested in bonds or CD's or some other investment instrument that has a maturity of more than 12 months, and if he will get hit with a significant fine for cashing them out early, then they might not be eligible.
He'll need evidence to prove he owns the assets, and proof of their value. If the money is in a savings account, then a statement from the bank should suffice.

There's a bit of misinformation in this thread, so I'll try to clear up some things. If I'm wrong about anything, I'm sure someone else will correct me.
warlord is correct - there is no "conditional visa". What you probably mean is conditional green card. Visas are for visitors. Green cards are for permanent residents - i.e., immigrants. If your conditional green card expires in 2011, then you are required to petition to have the conditions removed in the 90 day period before it expires. If approved, you'll get an unconditional green card valid for 10 years.
There are really only two significant differences between a conditional and unconditional green card. First, the conditional green card is only valid for 2 years, while the unconditional green card is valid for 10 years. Second, your permanent resident status with a conditional green card is based on the "condition" that you remain married to your US citizen spouse. When congress passed the law that created the conditional green card, their intent was to stop "marriage for green card" scams.
Congress understood that not every married couple will live happily ever after, and even sincere marriages can end up on the rocks. So, there is a provision in the law that allows you to petition for an unconditional green card after you've gotten divorced. This provision requires you to prove that you entered the marriage in "good faith" (i.e., NOT just to get a green card). You must submit a copy of the divorce decree (the divorce must be final) before your petition will be approved. USCIS will take a lot of things into account when adjudicating your petition, including how long you were married, and how long you lived together as a married couple before the marriage ended in divorce. The most important thing they will consider is evidence that you actually lived as a married couple; same residence, co-mingled finances, etc.
About your future child - the only way the child could convey any immigration status for you is if you wait until the child is 21 years old. At that point, the child is eligible to petition for it's parents to immigrate to the US. Until then, having a US citizen child will not affect your immigration status whatsoever, nor prevent the US government from deporting you if you lose your immigration status.

Well, this topic is bound to get moved, but what the he!!... I'll jump in!
I often avoid posting in VAWA topics for the same reasons you described. Often, I'm just not sure if I would be offering my condolences or advice to someone whose sole intention is getting a green card, regardless of whose lives they might be ruining in the process. Sure, they write a compelling and heartbreaking story. I'm sure many of them are sincere, and are genuinely being abused. I'm equally sure many of them are not sincere, and the accusation of abuse is a fraud. There's just no way to tell the difference from reading a post on an internet forum.
Ever since I learned about VAWA, it's been my opinion that it was a huge loophole in the immigration law, and that the people who wrote this law, although they may have had good intentions, did not adequately consider the potential for it to be abused. If the only thing at stake here was a green card, then I would be only mildly bothered by this law. But, the reputation of the US citizen is also at stake. The evidence required for a successful VAWA petition includes a credible accusation of abuse against the US citizen. This evidence is far too easy to conjure up. Have a friend sock you in the eye, and call the cops. Voila! The US citizen spouse spends the night in jail, and the immigrant heads for the battered women's shelter, ready to prepare their VAWA petition.
In my opinion (which is worthless), VAWA should provide for compensation - protection, financial support, etc. - but it should NOT automatically convey any immigration status. By offering a green card as a reward, there is just too much incentive to lie and cheat.

I asked when the claim to US citizenship was made because if it were made before September 30, 1996, then it's possible that no ban would be in place. The 1996 Immigration Act amended the INA to change what constitutes an inadmissibility for falsely claiming US citizenship. After September 30, 1996, any claim of false US citizenship, whether for public or private reasons, would make the alien inadmissible. Prior to September 30, 1996, the claim must have been made to a US government official, and for the purpose of evading immigration law. In other words, if you made a false claim of US citizenship to an employer in 1995 for the purpose of getting a job, then you would NOT be inadmissible. That same claim made after September 30, 1996, WOULD make you inadmissible.
That's why the timing of the claim, and who the claim was made to, might be very important. If the alien IS inadmissible because of the claim, then there is no waiver possible.

You should be able to re-enter with your green card.
Some basic facts - your green card is "conditional", which means there are conditions attached to your legal permanent residence. The primary "condition" for keeping your LPR status is that you remain married to your US citizen spouse. The general rule is that divorce terminates your claim to status. This doesn't mean your green card magically becomes invalid the day you are divorced. USCIS has to go through removal proceedings in order to cancel your green card, which takes months. However, it does mean that USCIS is compelled to take action if they learn about the divorce. This action would initially be limited to sending you a letter that they intend to begin removal proceedings.
Normally, you are required to file an I-751 petition to remove the conditions on your green card within 90 days before the card expires. Usually, you and your husband both have to sign this petition and cooperate if there's an interview. The law does allow you to file this petition on your own when the marriage ended in divorce, provided you can prove you entered the marriage in good faith. This generally means providing proof that you lived as a normal married couple until the marriage broke down. You can get more details on this when you're ready to file.
Most people wait until the 90 day window before self-petitioning to remove conditions based on divorce. As I said, USCIS is compelled to take action if they learn of the divorce, but they usually don't hear about the divorce until you tell them about it when you self-petition. In the event that they do find out about the divorce, and send you a letter that they intend to start removal proceedings, then you'll have to file your I-751 right away. Once you are divorced, you are no longer required to wait for the 90 day window to file - you can file anytime. The final divorce decree will be required.
USCIS will consider all aspects of your relationship in determining whether they believe you entered the marriage in good faith. When a divorce is filed soon after the conditional green card is approved, the case will probably get more scrutiny.
I am curious how your divorce is being completed so quickly without your cooperation. Even in states that don't require the consent of both parties for a no fault divorce, they still require that the respondent be give ample time to respond. Without a response, many states would require the petitioner to wait 1 year for the abandonment clause to kick in. I've never heard of a state that will grant a unilateral divorce in less than 6 months. Did you husband serve you with papers before you returned to the UK?

Brandon,
First, you need to calm down and spend some time learning about this stuff. So far, from what you've said, you've spent a total of about 8 hours researching this. That's not enough. Take your time, and go step by step.
First, pick a date when you want to submit your petition. Give yourself a reasonable amount of time to collect the documents and evidence you're going to need, and to do the research you're going to need to do. One or two months from now would be reasonable.
Next, research what documents you're going to need during this process. You can get all of the information you're going to need from the CR1 guides here on VJ:
http://www.visajourney.com/content/i130guide1
You may need some documents from her before you submit the petition. For example, if she's ever been divorced, you'll need copies of the divorce decrees. You'll also need a G-325A filled out and signed by her.
Plan for her to bring any documents you need for the petition with her the next time she visits. Organize the visit so that you'll be preparing and submitting the petition while she's here. That way, you can both work on the petition package.
With a little luck, maybe you'll be able to squeeze in a second visit after you submit the petition and before she has to be back in Canada for the interview. Yes, they may give her a little trouble at the border. It's possible they may even deny her entry. As Bob says, if you've already filed the CR1 then they're less likely to suspect that she'll try to adjust status while she's in the US, since she'll be able to show she's trying to immigrate legally. If they still deny her entry, then take a little time off and go visit her in Canada.
So, relax, take your time, and you and your wife can work on this process together. It does seem like it takes a long time, but you'll be surprised at how short it seems when it's all over. Be thankful your wife was able to visit you for long periods of time. For some of us, our SO's couldn't get a visa to visit the US under any circumstances. Instead, we have to travel around the world and visit for a couple of weeks at a time. You're a lot luckier than you know.

With very few exceptions, grounds of inadmissibility apply to all types of visas - not just non-immigrant visas like the K1. Her overstay and criminal background are just as likely to come up with a K1 application as they would with a spousal visa application. On the other hand, her overstay was less than 180 days, so there's no automatic ban to be overcome. Likewise, one of her convictions happened before she was 18, and it's been more than 5 years, so it doesn't count as an inadmissibility. The other conviction is more than 15 years ago, so she's eligible for a waiver of the inadmissibility, and has already been granted a waiver once. Aside from additional background checks, and perhaps some extra questioning at the interview, I doubt this will cause her any problems.

With very few exceptions, grounds of inadmissibility apply to all types of visas - not just non-immigrant visas like the K1. Her overstay and criminal background are just as likely to come up with a K1 application as they would with a spousal visa application. On the other hand, her overstay was less than 180 days, so there's no automatic ban to be overcome. Likewise, one of her convictions happened before she was 18, and it's been more than 5 years, so it doesn't count as an inadmissibility. The other conviction is more than 15 years ago, so she's eligible for a waiver of the inadmissibility, and has already been granted a waiver once. Aside from additional background checks, and perhaps some extra questioning at the interview, I doubt this will cause her any problems.

No, he is suggesting that getting married and filing a CR1 may render the "inability to marry" a moot question. However, that presumes that whatever reason the consulate used to conclude that either you or your fiance were unable to marry either never existed, or no longer exists. If the consulate came to this conclusion based on a reason that still exists even after you are married, then they will consider your marriage invalid. For example, if your fiance was previously divorced through some sort of social event (perhaps he is Muslim, and he divorced by pronouncing "Talaq"), but the divorce was never recognized by the government, then the consulate might conclude he wasn't free to marry again. Same if Burkina Faso permits polygamy, and he has a prior marriage that was never terminated. I really don't know much about this country.
You really need to find out exactly why the consulate concluded there was an "inability to marry", and make sure this problem is resolved before you file another petition. This should have been clearly spelled out on the denial letter your fiance received at the consulate. If you can't get this information from the consulate or USCIS, then you should consider filing an FOIA petition to get the information released.

An overstay has to be at least 180 days to result in an automatic ban. On the other hand, your overstay is not going to make it any easier for you to get another B2 visa, especially considering you needed a 212(h) waiver to get the first one.
Ok, what your attorney suggested was Russian roulette. It would have been perfectly legal for you to marry your fiance in the US. The spouse of a US citizen IS eligible to apply for a green card while they are in the US, however, there are some conditions attached. One of those conditions is that you did not intend to immigrate when you entered with your non-immigrant visa. Let's be clear that what really matters here is what USCIS thinks your intention was, and not what your intention really was. If they conclude you intended to immigrate, based on the fact that you came to be with your fiance, and had done so previously, then they would have denied your green card application. Further, you would probably have been found to be guilty of material misrepresentation; i.e., lying on your green card application. The consequences are deportation and a possible lifetime ban from the US. This is why I say it's Russian roulette - it's possible to marry in the US and apply for a green card, but there is considerable risk if you fail. This risk doesn't exist if you enter the US with a visa intended to permit you to marry and apply for a green card.
If you needed a waiver for the B2, then you'll probably also need a waiver for the K1. Since you qualified on your own for the waiver with the B2 visa, you should be able to qualify on your own with the K1, as well. I presume you qualify because it's been more than 15 years since the offense. If it had been less than 15 years then your fiance would probably need to ask for a waiver on your behalf, based on his own hardship.
Your fiance's financial status may be a problem. He will have to provide an affidavit of support for you. The general requirement is that he must have income equal or higher than 125% of the poverty guidelines for his household size, which will include you. If it's only you and him, then he would need an annual income of a little over $18K. If he gets SSDI then that income can be counted. On the other hand, if he gets SSI then it can't be counted. If he can't meet the income requirements, then he'll need to find a co-sponsor who qualifies.

You should read the guides (see the link at the top of the page). That's always a good place to start. Some of your questions would have been answered quickly there.
Non US citizens may not file for a fiancee visa.
You will be the primary sponsor for your fiance, even if you don't have enough income to qualify. I just wanted to clarify that point because your statement that you're "allowed to have a sponsor" indicates you might not have understood it. If you don't have enough income, then you can usually use what USCIS refers to as a "joint sponsor", or what is often referred to on this site as a "co-sponsor". However, with a fiance visa (or any other non-immigrant type visa) it's entirely up to the consulate whether to accept your co-sponsor. Some consulates are picky about whom they will accept, and some very rarely accept them under any conditions. Check the regional forums for your fiance's country, and also read the embassy reviews (link at top of page).
You must fill out an affidavit of support (the I-134 is used for fiance visas at pretty much all consulates). If you are also using a co-sponsor, then your co-sponsor must also fill out an affidavit of support. Most consulates also want the most recent year's tax return to substantiate income. If you didn't submit a tax return last year, then you are supposed to include a letter explaining why you were not required to file. They may also ask for recent pay stubs and/or a letter from the employer stating when the employee began working, and their annual income. Each consulate makes it's own rules about what evidence needs to be included, so you must find out from the consulate where your fiance will interview.
Most consulates only permit ONE co-sponsor with the I-134. This means that, in all likelihood, only one of your parents will be able to co-sponsor, and they will have to show that they alone have enough income to qualify based on their household size. The household size will include your fiance, and anyone else they claim as dependents on their tax return. It may also include other people whom they provide support for, including any other aliens they have signed an affidavit of support for. If your parents file a joint tax return, then the parent who becomes you co-sponsor will need to provide financial documents showing their own separate income, since a tax return alone won't differentiate between them.
There's a wealth of information about this topic in the US Embassy and Consulate Discussion section of this forum. Get a cup of coffee, relax, and start reading.

An overstay has to be at least 180 days to result in an automatic ban. On the other hand, your overstay is not going to make it any easier for you to get another B2 visa, especially considering you needed a 212(h) waiver to get the first one.
Ok, what your attorney suggested was Russian roulette. It would have been perfectly legal for you to marry your fiance in the US. The spouse of a US citizen IS eligible to apply for a green card while they are in the US, however, there are some conditions attached. One of those conditions is that you did not intend to immigrate when you entered with your non-immigrant visa. Let's be clear that what really matters here is what USCIS thinks your intention was, and not what your intention really was. If they conclude you intended to immigrate, based on the fact that you came to be with your fiance, and had done so previously, then they would have denied your green card application. Further, you would probably have been found to be guilty of material misrepresentation; i.e., lying on your green card application. The consequences are deportation and a possible lifetime ban from the US. This is why I say it's Russian roulette - it's possible to marry in the US and apply for a green card, but there is considerable risk if you fail. This risk doesn't exist if you enter the US with a visa intended to permit you to marry and apply for a green card.
If you needed a waiver for the B2, then you'll probably also need a waiver for the K1. Since you qualified on your own for the waiver with the B2 visa, you should be able to qualify on your own with the K1, as well. I presume you qualify because it's been more than 15 years since the offense. If it had been less than 15 years then your fiance would probably need to ask for a waiver on your behalf, based on his own hardship.
Your fiance's financial status may be a problem. He will have to provide an affidavit of support for you. The general requirement is that he must have income equal or higher than 125% of the poverty guidelines for his household size, which will include you. If it's only you and him, then he would need an annual income of a little over $18K. If he gets SSDI then that income can be counted. On the other hand, if he gets SSI then it can't be counted. If he can't meet the income requirements, then he'll need to find a co-sponsor who qualifies.

An overstay has to be at least 180 days to result in an automatic ban. On the other hand, your overstay is not going to make it any easier for you to get another B2 visa, especially considering you needed a 212(h) waiver to get the first one.
Ok, what your attorney suggested was Russian roulette. It would have been perfectly legal for you to marry your fiance in the US. The spouse of a US citizen IS eligible to apply for a green card while they are in the US, however, there are some conditions attached. One of those conditions is that you did not intend to immigrate when you entered with your non-immigrant visa. Let's be clear that what really matters here is what USCIS thinks your intention was, and not what your intention really was. If they conclude you intended to immigrate, based on the fact that you came to be with your fiance, and had done so previously, then they would have denied your green card application. Further, you would probably have been found to be guilty of material misrepresentation; i.e., lying on your green card application. The consequences are deportation and a possible lifetime ban from the US. This is why I say it's Russian roulette - it's possible to marry in the US and apply for a green card, but there is considerable risk if you fail. This risk doesn't exist if you enter the US with a visa intended to permit you to marry and apply for a green card.
If you needed a waiver for the B2, then you'll probably also need a waiver for the K1. Since you qualified on your own for the waiver with the B2 visa, you should be able to qualify on your own with the K1, as well. I presume you qualify because it's been more than 15 years since the offense. If it had been less than 15 years then your fiance would probably need to ask for a waiver on your behalf, based on his own hardship.
Your fiance's financial status may be a problem. He will have to provide an affidavit of support for you. The general requirement is that he must have income equal or higher than 125% of the poverty guidelines for his household size, which will include you. If it's only you and him, then he would need an annual income of a little over $18K. If he gets SSDI then that income can be counted. On the other hand, if he gets SSI then it can't be counted. If he can't meet the income requirements, then he'll need to find a co-sponsor who qualifies.

An overstay has to be at least 180 days to result in an automatic ban. On the other hand, your overstay is not going to make it any easier for you to get another B2 visa, especially considering you needed a 212(h) waiver to get the first one.
Ok, what your attorney suggested was Russian roulette. It would have been perfectly legal for you to marry your fiance in the US. The spouse of a US citizen IS eligible to apply for a green card while they are in the US, however, there are some conditions attached. One of those conditions is that you did not intend to immigrate when you entered with your non-immigrant visa. Let's be clear that what really matters here is what USCIS thinks your intention was, and not what your intention really was. If they conclude you intended to immigrate, based on the fact that you came to be with your fiance, and had done so previously, then they would have denied your green card application. Further, you would probably have been found to be guilty of material misrepresentation; i.e., lying on your green card application. The consequences are deportation and a possible lifetime ban from the US. This is why I say it's Russian roulette - it's possible to marry in the US and apply for a green card, but there is considerable risk if you fail. This risk doesn't exist if you enter the US with a visa intended to permit you to marry and apply for a green card.
If you needed a waiver for the B2, then you'll probably also need a waiver for the K1. Since you qualified on your own for the waiver with the B2 visa, you should be able to qualify on your own with the K1, as well. I presume you qualify because it's been more than 15 years since the offense. If it had been less than 15 years then your fiance would probably need to ask for a waiver on your behalf, based on his own hardship.
Your fiance's financial status may be a problem. He will have to provide an affidavit of support for you. The general requirement is that he must have income equal or higher than 125% of the poverty guidelines for his household size, which will include you. If it's only you and him, then he would need an annual income of a little over $18K. If he gets SSDI then that income can be counted. On the other hand, if he gets SSI then it can't be counted. If he can't meet the income requirements, then he'll need to find a co-sponsor who qualifies.

A re-entry permit is valid until it expires. It is a booklet, similar to a passport. Visas and entry/exit stamps can even be placed in the re-entry permit booklet, and it can be used in lieu of a passport in many countries. It can be used for multiple entries to the US, as long as it's still valid. The permit is usually issued with a validity of two years.

Well, this topic is bound to get moved, but what the he!!... I'll jump in!
I often avoid posting in VAWA topics for the same reasons you described. Often, I'm just not sure if I would be offering my condolences or advice to someone whose sole intention is getting a green card, regardless of whose lives they might be ruining in the process. Sure, they write a compelling and heartbreaking story. I'm sure many of them are sincere, and are genuinely being abused. I'm equally sure many of them are not sincere, and the accusation of abuse is a fraud. There's just no way to tell the difference from reading a post on an internet forum.
Ever since I learned about VAWA, it's been my opinion that it was a huge loophole in the immigration law, and that the people who wrote this law, although they may have had good intentions, did not adequately consider the potential for it to be abused. If the only thing at stake here was a green card, then I would be only mildly bothered by this law. But, the reputation of the US citizen is also at stake. The evidence required for a successful VAWA petition includes a credible accusation of abuse against the US citizen. This evidence is far too easy to conjure up. Have a friend sock you in the eye, and call the cops. Voila! The US citizen spouse spends the night in jail, and the immigrant heads for the battered women's shelter, ready to prepare their VAWA petition.
In my opinion (which is worthless), VAWA should provide for compensation - protection, financial support, etc. - but it should NOT automatically convey any immigration status. By offering a green card as a reward, there is just too much incentive to lie and cheat.

Yep!
Also, not to be a nitpicker (even though I'm really good at nitpicking...), you have an "inalienable right" to "the pursuit of happiness". In this lifelong pursuit, many of us never actually find that happiness, but it doesn't amount to our right to pursue it having been trampled. I think our founding fathers were very careful not to state that we had a right to "happiness".
Yes, you do have the right to pursue your own happiness. You don't have the right to bring any foreigner into the US and grant them legal immigrant status, nor does the foreigner have any right to immigrate. These are privileges that you request from the US government, and you do so at your own expense. If you are eligible to petition for him, and he is eligible to immigrate, then everything will work out. Unfortunately, in this case, the law is pretty clear - he's not eligible to come to the US. Does that suck? Yes, without a doubt. If he were a US citizen, in many states that same violation would have gotten him a stern warning and a slap on the wrist from the judge. With immigration law, however, that violation leaves him without any recourse.
I hope your congressional representatives are able to help you, but I rather doubt they will be able to. It's outside their authority to grant any sort of special treatment, or "pardon" an inadmissibility. What they are best at, when it comes to immigration, is kicking other government agencies in the pants to get them moving on a stalled case.
I'm not trying to rain on your parade, but you should know what you're up against. An honest attorney would tell you the same thing, which is why I cautioned you to research the immigration law before you hire an attorney. A dishonest attorney would tell you "Sure, we've got a good chance!", and then ask for a sizable retainer. Once the petition was approved, he'd ask you to fork over more cash to deal with the consulate stage. Once your fiance was denied the visa, he'd ask for even MORE cash to handle the waiver application. When the waiver was denied, he might even ask for more money to try an appeal with USCIS. In the end, you would be out thousands of dollars, and you'd be right where you are now.
Do your research, talk to your representatives, consult with attorneys (but DON'T hand over any cash), and then decide how you want to proceed.
Now you're grasping at straws.
He is inadmissible, according to the INA, section (a)(2)(A)(II). That section of the INA specifically cites 21 U.S.C. 802, which is the section of Code of Federal Regulations that defines controlled substances. Cocaine is specifically listed in paragraph 17.C of the Federal Code, and falls under the classification of "narcotic drug".
Someone who got caught with marijuana is ALSO inadmissible, according to the same section of the INA. However, if that person was caught with less than 30 grams, and they weren't trying to sell it (i.e., trafficking), then they would be eligible for a waiver of their inadmissibility, either by waiting 15 years, or by a hardship waiver from a US citizen. There is no provision in the INA for a waiver for any other controlled substance.
Someone who is inadmissible would not be eligible for any type of visa.

Yep!
Also, not to be a nitpicker (even though I'm really good at nitpicking...), you have an "inalienable right" to "the pursuit of happiness". In this lifelong pursuit, many of us never actually find that happiness, but it doesn't amount to our right to pursue it having been trampled. I think our founding fathers were very careful not to state that we had a right to "happiness".
Yes, you do have the right to pursue your own happiness. You don't have the right to bring any foreigner into the US and grant them legal immigrant status, nor does the foreigner have any right to immigrate. These are privileges that you request from the US government, and you do so at your own expense. If you are eligible to petition for him, and he is eligible to immigrate, then everything will work out. Unfortunately, in this case, the law is pretty clear - he's not eligible to come to the US. Does that suck? Yes, without a doubt. If he were a US citizen, in many states that same violation would have gotten him a stern warning and a slap on the wrist from the judge. With immigration law, however, that violation leaves him without any recourse.
I hope your congressional representatives are able to help you, but I rather doubt they will be able to. It's outside their authority to grant any sort of special treatment, or "pardon" an inadmissibility. What they are best at, when it comes to immigration, is kicking other government agencies in the pants to get them moving on a stalled case.
I'm not trying to rain on your parade, but you should know what you're up against. An honest attorney would tell you the same thing, which is why I cautioned you to research the immigration law before you hire an attorney. A dishonest attorney would tell you "Sure, we've got a good chance!", and then ask for a sizable retainer. Once the petition was approved, he'd ask you to fork over more cash to deal with the consulate stage. Once your fiance was denied the visa, he'd ask for even MORE cash to handle the waiver application. When the waiver was denied, he might even ask for more money to try an appeal with USCIS. In the end, you would be out thousands of dollars, and you'd be right where you are now.
Do your research, talk to your representatives, consult with attorneys (but DON'T hand over any cash), and then decide how you want to proceed.
Now you're grasping at straws.
He is inadmissible, according to the INA, section (a)(2)(A)(II). That section of the INA specifically cites 21 U.S.C. 802, which is the section of Code of Federal Regulations that defines controlled substances. Cocaine is specifically listed in paragraph 17.C of the Federal Code, and falls under the classification of "narcotic drug".
Someone who got caught with marijuana is ALSO inadmissible, according to the same section of the INA. However, if that person was caught with less than 30 grams, and they weren't trying to sell it (i.e., trafficking), then they would be eligible for a waiver of their inadmissibility, either by waiting 15 years, or by a hardship waiver from a US citizen. There is no provision in the INA for a waiver for any other controlled substance.
Someone who is inadmissible would not be eligible for any type of visa.

Yep!
Also, not to be a nitpicker (even though I'm really good at nitpicking...), you have an "inalienable right" to "the pursuit of happiness". In this lifelong pursuit, many of us never actually find that happiness, but it doesn't amount to our right to pursue it having been trampled. I think our founding fathers were very careful not to state that we had a right to "happiness".
Yes, you do have the right to pursue your own happiness. You don't have the right to bring any foreigner into the US and grant them legal immigrant status, nor does the foreigner have any right to immigrate. These are privileges that you request from the US government, and you do so at your own expense. If you are eligible to petition for him, and he is eligible to immigrate, then everything will work out. Unfortunately, in this case, the law is pretty clear - he's not eligible to come to the US. Does that suck? Yes, without a doubt. If he were a US citizen, in many states that same violation would have gotten him a stern warning and a slap on the wrist from the judge. With immigration law, however, that violation leaves him without any recourse.
I hope your congressional representatives are able to help you, but I rather doubt they will be able to. It's outside their authority to grant any sort of special treatment, or "pardon" an inadmissibility. What they are best at, when it comes to immigration, is kicking other government agencies in the pants to get them moving on a stalled case.
I'm not trying to rain on your parade, but you should know what you're up against. An honest attorney would tell you the same thing, which is why I cautioned you to research the immigration law before you hire an attorney. A dishonest attorney would tell you "Sure, we've got a good chance!", and then ask for a sizable retainer. Once the petition was approved, he'd ask you to fork over more cash to deal with the consulate stage. Once your fiance was denied the visa, he'd ask for even MORE cash to handle the waiver application. When the waiver was denied, he might even ask for more money to try an appeal with USCIS. In the end, you would be out thousands of dollars, and you'd be right where you are now.
Do your research, talk to your representatives, consult with attorneys (but DON'T hand over any cash), and then decide how you want to proceed.
Now you're grasping at straws.
He is inadmissible, according to the INA, section (a)(2)(A)(II). That section of the INA specifically cites 21 U.S.C. 802, which is the section of Code of Federal Regulations that defines controlled substances. Cocaine is specifically listed in paragraph 17.C of the Federal Code, and falls under the classification of "narcotic drug".
Someone who got caught with marijuana is ALSO inadmissible, according to the same section of the INA. However, if that person was caught with less than 30 grams, and they weren't trying to sell it (i.e., trafficking), then they would be eligible for a waiver of their inadmissibility, either by waiting 15 years, or by a hardship waiver from a US citizen. There is no provision in the INA for a waiver for any other controlled substance.
Someone who is inadmissible would not be eligible for any type of visa.

I agree with TBoneTX. Your post implies that the USC should be using the 90 day period to live with their fiancee and get to know them better before deciding to go ahead with the marriage. USCIS makes it very clear that this is NOT the purpose of the 90 day period.
From the USCIS "How Do I..." guide for K1 visas:
http://www.uscis.gov/USCIS/New%20Structure/3rd%20Level%20(Left%20Nav%20Children)/Resources-3rd%20level/How%20Do%20I%20Guides/A2en.pdf
What if we are engaged but have not yet decided to
marry?
The fiancé(e) visa is a temporary visa that simply permits your
fiancé(e) to enter the United States so that the two of you can
marry in the United States within the 90 days permitted from the
date of entry. It is not a way for you to bring a person here so you
can get to know one another, or spend more time together to decide
whether or not you want to marry.
You should be absolutely committed to the marriage before you even file the I-129F. This is the primary reason that the I-129F requires "original statements from you and your fiancé(e)whom you plan to marry within 90 days of his or her admission".
Also, neither the guides from USCIS nor the guides here on VJ could possibly cover every aspect of immigration law, procedure, or policy. There is simply too much information spread across too many documents, including the INA, CFR, and FAM. The guides cover the basic requirements and procedures as they apply to the majority of people, and tend not to cover the exceptions. Consulates DO have the authority to re-validate a used K1 for another entry, provided the original I-94 has not expired yet. Whether or not they will do so it entirely at their discretion. Most will require a very compelling reason to do so, such as a family emergency.

Well, this topic is bound to get moved, but what the he!!... I'll jump in!
I often avoid posting in VAWA topics for the same reasons you described. Often, I'm just not sure if I would be offering my condolences or advice to someone whose sole intention is getting a green card, regardless of whose lives they might be ruining in the process. Sure, they write a compelling and heartbreaking story. I'm sure many of them are sincere, and are genuinely being abused. I'm equally sure many of them are not sincere, and the accusation of abuse is a fraud. There's just no way to tell the difference from reading a post on an internet forum.
Ever since I learned about VAWA, it's been my opinion that it was a huge loophole in the immigration law, and that the people who wrote this law, although they may have had good intentions, did not adequately consider the potential for it to be abused. If the only thing at stake here was a green card, then I would be only mildly bothered by this law. But, the reputation of the US citizen is also at stake. The evidence required for a successful VAWA petition includes a credible accusation of abuse against the US citizen. This evidence is far too easy to conjure up. Have a friend sock you in the eye, and call the cops. Voila! The US citizen spouse spends the night in jail, and the immigrant heads for the battered women's shelter, ready to prepare their VAWA petition.
In my opinion (which is worthless), VAWA should provide for compensation - protection, financial support, etc. - but it should NOT automatically convey any immigration status. By offering a green card as a reward, there is just too much incentive to lie and cheat.