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    ninuka84's Avatar
    ninuka84 Posts: 3, Reputation: 1
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    #1

    Apr 10, 2014, 01:20 AM
    Overstay, marrying a US citizen
    I was previously in the US for 14 years. I first went as a J-1, came home and get an F-1, graduated college as an F-1, overstayed my F-1 by 3 years, then had my H-1B approved while in the US, went back to my home country and was granted the H-1B visa despite the overstay, since my lawyer clarified that while I had overstayed, my status was not revoked so the 10-year ban did not apply. After working in the US for 3 years on the H-1B, I applied for CoS to F-1 and went back to school. I had the USCIS approval on the F-1 when I came home for spring break last year and was denied the student visa to return. I've reapplied twice in the last year, but was denied both times, because of the overstay.
    I am now engaged to my US citizen boyfriend and we plan on getting married. He will be visiting me in my home country to meet the family. Will I be able to get a K-1 visa or should I go straight for the spousal visa? Does the overstay (without my status revoked) disqualify me from a K-1 visa? Does it disqualify me from the spousal visa? Any help would be much appreciated. We need to decide which visa is a viable option. Thanks in advance!
    smoothy's Avatar
    smoothy Posts: 25,495, Reputation: 2853
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    #2

    Apr 10, 2014, 05:04 AM
    Depending on your home country... your wait for a VISA if your application is accepted... can take years some countries far longer than others... being married to a US Citizen doesn't make it automatic nor does it put you on a fast track.
    ninuka84's Avatar
    ninuka84 Posts: 3, Reputation: 1
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    #3

    Apr 10, 2014, 05:09 AM
    Thanks for the response. However, I'm not sure what to think of it. My question was which visa I should apply for, given my situation, - the K-1 or the K3/IR/CR1? Clearly I have to wait for a visa, but no visa takes years. I'm either denied or approved, but either way, it takes roughly a year, at most.

    I would greatly appreciate further responses from other members. Thank you kindly.
    smoothy's Avatar
    smoothy Posts: 25,495, Reputation: 2853
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    #4

    Apr 10, 2014, 05:27 AM
    Where did you get the idea no VISA takes years? Certain countries have a 12 year waiting list some a little less... its on the INS website. And they update it monthly.

    The only VISA you will get in a year or less would be a education related or certain types of temporary work VISA... none of them have a path to an immigrations VISA.

    Believe what you want... I've actually been through this with my wife.
    lawanwadee's Avatar
    lawanwadee Posts: 3,653, Reputation: 124
    Immigration Expert
     
    #5

    Apr 10, 2014, 10:15 AM
    You can apply for either K-1 or K-3 visa. The overstay now triggered a ban, probably 10 years, so you would need immigration attorney to deal with this issue.

    Good luck.
    newacct's Avatar
    newacct Posts: 319, Reputation: 21
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    #6

    Apr 10, 2014, 11:31 AM
    Quote Originally Posted by lawanwadee View Post
    You can apply for either K-1 or K-3 visa. The overstay now triggered a ban, probably 10 years, so you would need immigration attorney to deal with this issue.

    Good luck.
    There is probably no ban, because someone entering on F1 is almost always admitted for Dutation of Status, and people admitted on Duration of Status do not automatically accrue unlawful presence.

    Quote Originally Posted by smoothy View Post
    Where did you get the idea no VISA takes years? Certain countries have a 12 year waiting list some a little less... its on the INS website. And they update it monthly.

    The only VISA you will get in a year or less would be a education related or certain types of temporary work VISA... none of them have a path to an immigrations VISA.

    Believe what you want... I've actually been through this with my wife.
    You are talking about the wait for a visa number to become available in family preference categories or employment categories. However, the OP is either applying for a fiancé visa or a spousal visa as the spouse of a U.S. citizen, which is in the Immediate Relative category. There is never a "wait" for visa numbers for these.
    smoothy's Avatar
    smoothy Posts: 25,495, Reputation: 2853
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    #7

    Apr 10, 2014, 11:56 AM
    Quote Originally Posted by newacct View Post
    You are talking about the wait for a visa number to become available in family preference categories or employment categories. However, the OP is either applying for a fiancé visa or a spousal visa as the spouse of a U.S. citizen, which is in the Immediate Relative category. There is never a "wait" for visa numbers for these.

    No I'm talking about a spouse VISA taking a lot of time, yes some of those others are quite lengthy too.. they are NOT automatic... and the wait time is significant... I was born and raised in the USA... my wife was European.. yet it took a few YEARS and thousands of dollars... and it would have taken many more years if I did not know the people I knew that was able to get it taken care of as fast as they did. Yes they fastracked it all the way to the top dog. I won't say who was involved...but only a couple people could pull the strings these people did.

    I also have a good friend that spent the last 10 years fighting to get his wife a green card, he is a naturalized US citizen and was before they were married... using an immigrations attorney... unsuccessfully. THey also made it clear after the appeals.. she was never going to get one either. They have a child born here, and she has no arrest history anywhere.

    There is the propaganda put out to appease certain special interest groups......and then there is what really happens.... they are very differnt things.

    And in my case it wasn't a case of ineptitude in one office.....because I dealt with two different INS offices in two different states and the people working in both were equally useless. And thats not just the flunkies at the counter....but their managers and all the way to the top (the high level people who helped me said this).

    Another wealthy immigrant neighbor dealt with this a few years ago...took them over 4 years, another European wife, son US Citizen....they won't say exact numbers but we are talking well over $50,000 in fees to get it through that quick.
    ninuka84's Avatar
    ninuka84 Posts: 3, Reputation: 1
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    #8

    Apr 11, 2014, 01:25 AM
    Thanks for your answer - very helpful and to the point. And you're right - I have not accrued any unlawful presence and the 10yr ban isn't an issue. Nevertheless, is the overstay likely to get in the way of a K-1 but not in the way of a K-3 or an IR/CR1?

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