HELP!!! K1 visa overstayed 5 months before getting married

[marxdumpling]

Hello,

 

For many reasons of both sides, I overstayed my K1 visa for 5 months before we got married, now we are going to file for GC. I know I am out of status right now, but wondering if I can still file AOS? or "Petition for Alien Relative"

If I try the AOS first and not approved, can I get refund?

except another medical exam, what is the difference between the two?

 

THANKS!!!

Edited March 12, 2007 by marxdumpling (see edit history)

[david_dawei]

I just want to clarify the overstay.. which one below explains your situation:

1) Came to US and did not get married till 5 months after expiration?

2) Came to US and got married but have not filed for AOS yet... now it is 5 months after marriage?

 

In the first case, you did not marry in 90 day requirement and the ability to file AOS was voided. Although you can try to file, and even if accepted, you might find at the interview they deny the filing (if not at the filing). You will not get a refund.

 

In the second case, you were married within 90 day requirement and just didn't file AOS.. You can file AOS in that case.

 

One issu is that your overstay is not held against you till you leave the country... ergo, don't leave till you must...

 

If you didn't marry in 90 days, but are now... you might try to file as married to a USC (instead of married under K1). I would get an immigration attorney though since I am only thinking logic not law...

[dnoblett]

If you did not marry within the no days of the visa you need to apply for another visa this time it is technically a CR-1 visa only you are doing it here in the USA using form I-130. Same situation hapens when someone marries someone here on another type of visa like a student or work visa.

 

VJ has a guide for situations like that.

 

SEE: http://www.visajourney.com/forums/index.ph...page=i130guide2

[hakkamike]

Hello,

 

For many reasons of both sides, I overstayed my K1 visa for 5 months before we got married, now we are going to file for GC. I know I am out of status right now, but wondering if I can still file AOS? or "Petition for Alien Relative"

If I try the AOS first and not approved, can I get refund?

except another medical exam, what is the difference between the two?

 

THANKS!!!

 

 

You can file if you want to but if it is not approved u aint going to get ur money back, I am only answering the question asked unlike many others here lol lol and will not ask other questions

[marxdumpling]

I understand I should not leave USA before I get any status, even I really miss home a lot. and I know it is not a right thing to overstay a visa( we actually bought a ticket before it expired), but I guess since I am not working illegally, they won't think I take much advantage of the American laws?

anyway, I really hope they won't deport me. My family doesn't even know about this overstaying situation.

but the warning on VJ page seems pretty scary...

[dnoblett]

I understand I should not leave USA before I get any status, even I really miss home a lot. and I know it is not a right thing to overstay a visa( we actually bought a ticket before it expired), but I guess since I am not working illegally, they won't think I take much advantage of the American laws?

anyway, I really hope they won't deport me. My family doesn't even know about this overstaying situation.

but the warning on VJ page seems pretty scary...

The warning on the VJ page has mostly to do with persons using a visa type like a tourist visa to come to the USA to marry and not leave.

 

Your case is straight forward, you did apply and get the correct type of visa only you did not marry in the 90 days.

 

You need to file the I-130 as the first step in your case is all.

 

If you are unsure you may want to consult an immigration attorney, but the VJ guide has helped many adjust status in situations like yours.

[marxdumpling]

YAY!!! so it is not that horrible, huh?

great! I will follow the VJ steps then!

Thank you, dnoblett! and DavidZixuan! Hakkamike!

[david_dawei]

If you didn't get married in 90 days, I agree that the logical step is to file the I-130... as married to a USC...

 

The problem I see is two fold:

1) You entered the US and didn't fulfill the obligations of the K1; ergo, you were supposed to leave the country

2) You married instead of leaving, which could be construed as 'immigration fraud'...

 

Obviously the two together should be understood as not 'fraud', but the law is not logical sometimes.

 

The fact is: Many overstay a visa and then marry a USC and file without a problem... in this case, the overstay is "forgiven" to them.

 

It may be that your case (on a K1) and other cases (non-k1 overstays) may be all treated with the same forgiveness... but you likely won't find out till you have the interview...

 

You need to make a good case for your situation, which I think you can, but I would consult with an immigration attorney anyways.. doesn't mean you guys have to pay him to file.. but at least talk to someone.

[marxdumpling]

yeah, I was worrying about how to prove if they doubt our marriage today. Since we were not sure about getting married and being out of status later, I dont have anything changed after I arrived, not even a SSN. grr...

 

 

 

If you didn't get married in 90 days, I agree that the logical step is to file the I-130... as married to a USC...

 

The problem I see is two fold:

1) You entered the US and didn't fulfill the obligations of the K1; ergo, you were supposed to leave the country

2) You married instead of leaving, which could be construed as 'immigration fraud'...

 

Obviously the two together should be understood as not 'fraud', but the law is not logical sometimes.

 

The fact is: Many overstay a visa and then marry a USC and file without a problem... in this case, the overstay is "forgiven" to them.

 

It may be that your case (on a K1) and other cases (non-k1 overstays) may be all treated with the same forgiveness... but you likely won't find out till you have the interview...

 

You need to make a good case for your situation, which I think you can, but I would consult with an immigration attorney anyways.. doesn't mean you guys have to pay him to file.. but at least talk to someone.

[SirLancelot]

If you didn't get married in 90 days, I agree that the logical step is to file the I-130... as married to a USC...

 

The problem I see is two fold:

1) You entered the US and didn't fulfill the obligations of the K1; ergo, you were supposed to leave the country

2) You married instead of leaving, which could be construed as 'immigration fraud'...

 

Obviously the two together should be understood as not 'fraud', but the law is not logical sometimes.

 

The fact is: Many overstay a visa and then marry a USC and file without a problem... in this case, the overstay is "forgiven" to them.

 

It may be that your case (on a K1) and other cases (non-k1 overstays) may be all treated with the same forgiveness... but you likely won't find out till you have the interview...

 

You need to make a good case for your situation, which I think you can, but I would consult with an immigration attorney anyways.. doesn't mean you guys have to pay him to file.. but at least talk to someone.

 

I tend to think she'll have more problems than many have suggested on here so far.

 

She's over stayed her visa and basically has taken it upon herself to give herself an extension on a K-1 visa--which we all know is completely not possible with a K-1. But nevertheless, that's what she's done. She's given herself an extension. I don't think USCIS will take very kindly to that kind of self indulgence and floating of the law. But of course I could be wrong and USCIS won't give a care when she applies for IR1 within the US--but somehow I doubt they'll be so friendly about this situation.

 

I would strongly recommend consulting with an immigration attorney to seek clarification on this.

[C4Racer]

If you didn't get married in 90 days, I agree that the logical step is to file the I-130... as married to a USC...

 

The problem I see is two fold:

1) You entered the US and didn't fulfill the obligations of the K1; ergo, you were supposed to leave the country

2) You married instead of leaving, which could be construed as 'immigration fraud'...

 

Obviously the two together should be understood as not 'fraud', but the law is not logical sometimes.

 

The fact is: Many overstay a visa and then marry a USC and file without a problem... in this case, the overstay is "forgiven" to them.

 

It may be that your case (on a K1) and other cases (non-k1 overstays) may be all treated with the same forgiveness... but you likely won't find out till you have the interview...

 

You need to make a good case for your situation, which I think you can, but I would consult with an immigration attorney anyways.. doesn't mean you guys have to pay him to file.. but at least talk to someone.

 

I tend to think she'll have more problems than many have suggested on here so far.

 

She's over stayed her visa and basically has taken it upon herself to give herself an extension on a K-1 visa--which we all know is completely not possible with a K-1. But nevertheless, that's what she's done. She's given herself an extension. I don't think USCIS will take very kindly to that kind of self indulgence and floating of the law. But of course I could be wrong and USCIS won't give a care when she applies for IR1 within the US--but somehow I doubt they'll be so friendly about this situation.

 

I would strongly recommend consulting with an immigration attorney to seek clarification on this.

 

I have to agree 100% with Lance.

I had a friend whose wife overstayed a vistors visa while they were already married. They counsulated a immigration lawyer and was able to get the green card withing six months. This is a case with extenuating circumstances. I would not try to do it by myself. A good immigration lawyer will know exactly what to say to USCIS to get a positive outcome in the case.

[yuehan123]

Agree- get a good immigration attorney.

Agree- other's have done this. Our friend also overstayed 90 days by a few months and then got married and then filed AOS and then received a green card.

Agree- that others did is no guarantee you will.

[jemmyell]

Hello,

 

The AILA now has an immigration lawyer search site specifcally for location AILA (American Immigration Lawyer Association) members in your area.

 

http://www.ailalawyer.com/

 

AILA membership isn't a guarantee of compentence, but it goes a long way. You should still seek a specialist in each area of immigration law.

 

-James

[marxdumpling]

Hi, guys,

 

I called a lawyer explaining my situation. her answer was quite vague. i understand she wants the case. and today she emailed me saying i can still file for AOS. but my husband have to file a separate petition.

1. does anyone understand what this petition means?

2. and this AOS means i can file for I-485? coz yesterday i already decided to fill I-130.

 

and she asked me why we didn't get married too. i was thinking if i really explain our dilemma and situation in a letter. is that possible that the immigration lawyer could give some sympathy? because really we were just fighting the hardness of life. everybody here knows every step we have been through comes out of a lot of efforts. and this is our first marriage. people could get scared of it, esp when you are not having an easy good life. and some big thing happened added to the complication. moving from a city with friends, family, a good job, everything i have had for my life to a totally strange place with nothing, and not much things around really made me go crazy and depressed. and this overstaying made me more emotional. sometimes, i just cried about everything alone. i really just stay here for love. i am not having a good time in the best country of the world...

the point is we broke the law but we didn't hurt anyone or took any advantage of anything. i never work illegally. all i am doing is spending my money.

Edited March 28, 2007 by marxdumpling (see edit history)

[dnoblett]

The separate petition is the I-130, you will be filing the I-130 and I-485 together, overstays are usually forgiven with your marriage to your original petitioner.

 

Again the VJ guide spells out the steps involved.

 

SEE: http://www.visajourney.com/forums/index.ph...page=i130guide2

 

 

Hi, guys,

 

I called a lawyer explaining my situation. her answer was quite vague. i understand she wants the case. and today she emailed me saying i can still file for AOS. but my husband have to file a separate petition.

1. does anyone understand what this petition means?

2. and this AOS means i can file for I-485? coz yesterday i already decided to fill I-130.

 

and she asked me why we didn't get married too. i was thinking if i really explain our dilemma and situation. is that possible that the immigration lawyer understand? because really we were just fighting the hardness of life. everybody knows every step we have been through comes out of a lot of efforts. and this is our first marriage. people could get scared of it. and some big thing happened added to the complication. moving from a city with friends, family, a job, everything i have had for my life to a totally strange place with nothing, and not much things around really made me go crazy...

the point is we broke the law but we didn't hurt anyone or took any advantage of anything. i never work illegally. all i am doing is spending money.

Edited March 28, 2007 by dnoblett (see edit history)