Q re overstay on K-1 visa

[Vox]

Realistic, serious question concerning a real, actual situation. Replies expected from the knowledgeable guys, rather from the old-timers of the board, not the usual chatterboxes, the need is for good, serious, reliable information and not speculations.
The question of the shortness of the 90 day period of the K-1 was here beaten to death many times, and as most serious guys see it it’s simply too short for making the big decision--so that one can feel somehow sure about it (as much as it can).
You don’t think or expect it can happen to you until it does … most think this will be the easiest part, yet some may need more time, and then …
But here is an actual situation:
The lady finally comes here on K-1, so far all works absolutely perfect, she is the absolute 10, inside out and everything else, everything the particular guy wants and needs, the impossibly high dream happened, is true, besides they hit it perfectly.
They are like brother and sister. True soulmates, there is extreme compatibility and potential. Simply perfect, much more work to be done but all the good parts are there, and tremendous will and patience and effort on both sides.
Both are very perfectionist, very careful and both take their time to prepare. The search was long and meticulous. They also both dread divorce, would do all to eliminate any possible specter of it and are the extreme loyal type.
So far she adjusted here very well and she even likes it. She is well liked by all of his family, close or far, by friends, etc.
But here is the problem, the dilemma. There is simply need of a little more time, two, three more months. She needs more time to be able to feel totally comfortable with the decision. Like most young girls, especially at their first serious relationship, and especially of E.E. kind, she is most reluctant or even unable to just jump into. Even in her own country she would need time before getting married with someone local, a couple of months at least, a year normally. Not even pressure from her own mother, family could change her, and she would even jeopardize her advantage of being here--she would rather go back to think more about all in solitude if an extension is not possible (so much for the belief here on the board that all ladies are visa hawks, some simply are not falling for that, it doesn’t matter as much to some). Yes, some are serious to a fault!
If she goes back before the 90 days she will be legally fulfilling her obligation, but from credible sources the chance to the second K-1 (to the same person) to her is nil, the next solution would be marriage in her country and bringing her as a wife (also extremely difficult at this time--again from credible sources from bcis—and definitely time and money exhaustive). (Add to the newly more difficult American bureaucracies the fact that she is from a Muslim literally half way around the world and you get the image. We met and got engaged in a third country and it was a total quagmire to get that done there, a real long story! A beautiful love story, two people from two different continents engaged in the third!). Etc, etc, much work.
The question is what can be done before the visa expires, in the beginning it didn’t seem it will come to that question.
So here is one other scenario, she overstays and we marry three months later. Somehow they need to keep a low profile, also can someone in that situation (an “illegal”) get married legally first of all?
Then it seems, also from credible sources, that this marriage may not be “recognized” following the new changes in bcis, there is some talk of a waiver if in the end at the AOS it will be accepted.
So far one lawyer consulted is busy then he goes on vacation, and needs to study more this particular situation, he tries to have them avoid overstay by all means but agrees they don’t deport, at least not as yet. And most tend to agree that the greatest difficulty would be created by her leaving the country. Time is of essence here, less than two weeks before her visa expires, more lawyers will be consulted asap.
So, the question is (besides the side ideas such a topic/subject will cause), in light of all the real, current situation right now, what can really happen if she overstays? Would that totally jeopardize her future immigration status?
Thanks in advance!

[Vox]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

First thanks to ALL the guys who answered, I really appreciate all the crew’s input and help.
What I meant to avoid was useless change of topic, to the point that there is no relation in the end to the initial question (as it sometimes happens here), but it didn’t now, that’s why I said that Dan, you are not guilty of that and I would not consider you a chatterbox.
I was rather busy and wasn’t able to answer right away, for a long time I was absent from the board, and even before I wasn’t much glued to it.
More findings are as follows. Officially the BCIS tells that there is no a restriction against filing more than once on K-1, even on the same person, as long as she returns before the 90 day period. (On the other hand the approval of it NOW I was told from other sources working there may not happen). So it’s hard to say clearly what will happen, until one tries, it depends on who tells what.
One lawyer specialized in immigration (worked on it for same 20 years in Manhattan) assured me that it’s no problem, he can take the case anytime, even after the 90 days it can be done no problem, even months, he does it all the time, and the marriage license is granted by the city even to “undocumented” people (illegals), that does not impede the marriage licensing. They don’t deport as yet.
The amount of time for getting the green card is the same, it does not change, it takes about 2 years (he said the BCIS tell them to tell the clients about 15 months, but to be sure they say 2 years).
There is also no problem in getting her the parol to be able to visit back home, even if the overstay is 6 months (all the detailed technicalities escape me now, but it’s no problem).
Anyway, at this point we still didn’t decide as to which way we will do it. Everything between us goes all very well, it’s absolutely nothing to worry about it, it’s just that because of her personality, inexperience she is more apprehensive of just going a bit too fast, she deserves my consideration and tact, she is worth it. And I know very well when she does something it’s well thought and well done, then one can really trust her decision. And she is the person worth the extra effort, she does it also for me.
Additionally, through some connections at work I explained my situation to one senior media analyst from one of the major (better) television networks and he understand my frustration and promised to help also if necessary. So, at this point it looks better.
I’ll keep posting later.

[John K]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

Ok, here's my unorthodox opinion:

1) Get a prenup that states if it doesn't work out, you will make sure you will see her safely home, and that you will support her until she gets back on her feet again.

2) Marry her in a simple civil ceremony with a JP before the 90 days are up.  Don't worry about filing the AOS.  While you're supposed to file the AOS within 90 days, what the INS is really concerned about is the marriage.  I married Marina after 2 months of her arriving, and didn't file the AOS until 5 months after the marriage.  The INS didn't even blink at it and issued Marina her green card without any hassle.

3) If the couple feels that it's going to be right, then they can schedule the "real wedding" and afterwards, file the AOS.  If they don't, they can get the marriage annulled, and send her home with a copy of the marriage certificate and the latter annulment papers.  That way, she shouldn't have any problems with the INS.

Also, if it doesn't work out, the man is responsible for contacting the INS and submitting the marriage cert and annulment papers.  This protects the woman's future options, in case she wants to visit the US at a later date.

Hope this helps...

[Richard]

... in response to K1, marriage, and AOS, posted by John K on Apr 8, 2003

Sounds nice on paper, however I see one potential problem with this scenario: what if he decides it isn't working out and she won't agree to the anulment and going back to where she came from?  People can have different perceptions of how things are going: if she is willing to work harder on the marraige than he is, what then?

[John K]

... in response to Re: K1, marriage, and AOS, posted by Richard on Apr 9, 2003

In this case, both participants seem willing and responsible enough to try and make it work.  I am assuming both individuals are mature enough to either work it out or call it quits, the initial post seeming to indicate as much.

If one person wants to keep going, but the other doesn't, then this is an issue that needs to be addressed by both of them.  A marriage cannot be one sided; it requires both members to make it work.  If one person cannot or will not agree to continue the marriage, then the other should abide by it.  The person who is unable or unwilling to commit to the marriage needs to take a long hard look at themself though.  Their lack of commitment is a serious issue that cannot be overlooked.

As always, things can go seriously go wrong.  If things get ugly, that's another reason why you have a prenup.  It keeps the parties in check, and helps keep the hostilities down...

[wsbill]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

Marry her, and ignore everything the gov't requests or demands.

We've got mexicans pour over our borders not meeting one criteria and they want your lady to jump through a bunch of hoops.

Go underground with her.  Create a small business in your backyard, making drapes or growing plants.  You can skirt the law of the land.

But she must be married to you.  That's my take on it.  Like they say mileage may vary.

[LP]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

[This message has been edited by LP]

.... in a logical way, I'd get married with the 90 day period. If it works, no problems. If it doesn't she can always go back, the divorce should be little more than a formality.

Since I see no real consequences of it failing (assuming she goes back) I don't see any real isssue here. If it fails and she wants to stay? Well, if you're really that compatable and it fails I would think you could part amicably. The immigration problems would be hers, you need to think about protecting yourself.

The worst case is to overstay the K1, it opens a much bigger can of worms if you later decide to do the deed. She submitted a letter of intent to marry with 90 days so she must do it. Btw, the chance of another K1 with her is not so remote, I read of a guy who has done exactly that.
They had to submit to a little grilling at the interview but that was about it.

If the relation is that good why the waffling? Most MOBs marry on a lot less than what you've got. And why waffle now? She was ready to marry when the K1 was submitted or she wouldn't have agreed. Seems you both spent lots of time together before you did the K1 so maybe there is more to her story than she is telling you....

[Edge]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

I have heard of over on the latin board was of a guy who used to be a  regular poster who married two days after the 90 day window.  They tried the AOS and he was denied.  They tried to appeal and that was also denied.

The marriage has apparently failed after not even a year and I would imagine this put quite a strain on their marriage.  The guy lives in Houston.  Details are sketchy because the guy got banned from posting but I have heard this from people who know him.

I would not try it.

[T P Cornholio]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

Your writing style leaves something to be desired, and I haven't read all the responses, but you may consider having her return home to comply with the 90 day stipulation.  Then, if a decision is made in favor of marriage, to marry in her country and file an I-130 along with a K-3 visa so she can live with you while waiting for the I-130.  The K-3 will probably take as long to get as did the K-1.

[Charles]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

This is a very good question as the 90 day period is not enough time to make a decision on one's future.  Based on the current information on the BCIS website, if you do not marry within the 90 day period, but subsequently DO MARRY in the U.S., you may file for permanent residency using form I-130, Petition for Alien Relative, provided there are no pending exclusion, removal or deportation proceedings pending. (At least thats what the current BCIS website says!)  However, since she is out of status in the U.S., she is subject to removal but if you have a pending I-130 application a good attorney should be able assist in stopping or staying any removal until the BCIS adjudicates the I-130 petition.  Of course, based on the comments of those who are now going through the BCIS process, your time parameters could be quite long.

[KenC]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

Vox,
I want to preface what I am about to say with the fact that my information is pre-9/11 and did not concern a Muslim (if that does make a difference).  I was uncomfortable with the K-1 90 day "do or die" clause.  I met with a good immigration attorney to go over our options.  There are many differnet ways to play the waiver game.  He explained to me that it may take some time, but in the end, getting her legally into the country is by far the most important issue.  His words were, "if you get her here, I can make sure she stays".  I cannot imagine over staying a visa would be consideration for deportation.  But with the mood of the country being what it is today, I would want to hear this from an attorney first before I made any decisions.  One thing I do know is that is she does over stay her visa that she becomes "out of status" and will not be allowed to re-enter the country before she becomes a perminent resident even if the INS issues an Advanced Parol.  So, visiting home will not be allowed before she gets her green card.  Hope this helps.
KenC

[SteveM]

... in response to Re: Q re overstay on K-1 visa, posted by KenC on Apr 8, 2003

So, assume that you decide to reduce the strain by delaying the decision to get married.  You may be substituting a bigger strain in the form of not being able to travel back to her country for 2-3 years.  Even if no immediate plans for a return visit are on the horizon, you might consider that the unexpected contingencies of family situations could compel her to be back there before the new and improved BCIS AOS machine grinds out your conditional PR approval.

Also, while it is not the focus of your question, I am not sure you will get any crystal-clear answers by extending the deliberations another 90 days.  In our case, there were some extreme stresses both pre-wedding and for about six months after.  We certainly debated the wisdom of what we had done, but were committed to doing our best to make it work.  Two and a half years later, we are happier together than we ever imagined was possible in life.

Steve M.

[CS767]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

Vox,
  Why would you cut out all the guys that may have an opinion,
God knows they come up with some darn good ideas.My call is for the guy to follow the law,that usually always works as "forcing the solution"usually winds up more trouble than its worth.Because it's dishonest and violates the law,which may
totaly eliminate the eventual legal entry.My 2 bits--cs

[CS767]

... in response to Re: Q re overstay on K-1 visa, posted by CS767 on Apr 7, 2003

Oh ya,I have a good immigration attorney that answered a bunch of questions for free before I hired him .Email me and I will give you his number,hes in PHX,Az --cs

[Dan]

... in response to Q re overstay on K-1 visa, posted by Vox on Apr 7, 2003

Assuming I qualify as "not the usual chatterboxes" - then I believe your choice is clear.

BTW - no-one can give you a definitive black-and-white answer. They *can* tell you what the law stipulates - and you can judge for yourself if you wish to consider seeking leniency/flexibility on those stipulations in this particular time in our history.

While I am NOT a lawyer and for the sort of advice you are seeking, you should spring for some solid legal advice - it sure seems that you should be looking to remain within the bounds of the law. That means - you either, (a) marry within the 90 days, or (be) she returns and you take things from there. Any other decision will run afoul of the law and seriously jeapardize her/your future(s).

If you choose to have her remain here for longer than the 90 days and then marry later - you will most definitely need a lawyer working your case when you file for AOS. It may be possible for a lawyer to work some magic to keep things together with waivers and the like - but this is far from assured and your risks are great indeed.

Tread carefully - and good luck!

- Dan