Yet another overstay vs K1 scenario. (Sorry :))
Feb 24th 2003, 9:41 pm
#1
Guest
Posts: n/a
Yet another overstay vs K1 scenario. (Sorry :))
I'm a newbie but I've read a lot of the archives, so I think I've brought
myself fairly up to speed. But any answers from the experts to the questions
after this long (and largely irrelevant
) introduction would be much
appreciated
Backstory:
I am a UK citizen who came to the US in Sept 2002 for a 90 day break (VWP). In
the last month I met and fell in love with Lauren - a US citizen - but I
returned to the UK (as VWP demanded) in December. I always intended coming
back at some stage to find out if the relationship which seemed very promising
was worth rearranging our lives for, but initially I'd intended to stay in the
UK for a couple of months. (I worried the INS would just suspect anything less
would just be a trip home to see the family) In the end the separation over
the holidays proved harder on both of us than we'd anticipated. Lauren was
unable to get time off work to visit the UK until the 2nd half of February and
so I returned for a 10 day visit in early January. At this point we had come
to no conclusions about one of us emigrating in the long term. (After all we'd
known each other barely a month!)
When the time came to return though, after my 10 day visit in the US, again
with the relationship seeming very promising, Lauren and I thought we should
really see how solid we were and try a trial period of cohabitation. I sought
advice on whether I could legally extend my 10 day visit up to the 90 day VWP
max. I was advised at independently that (since this was a genuine change of
mind) that was OK. Anyway I hoped to find employment and visa sponsorship
under the H1 program (I have a college degree) but in the current climate this
appears to be proving more difficult than I thought - employers have their
choice of applicants so why bother with the extra hassle and expenses they
would incur with me?). The likelihood that when my 90 days expires I will
still be unemployed increases with each day.
Initially Lauren was also very unhappy with the demands of her job so the
possibility that she would move with me to the UK was always there. However
she recently got a big pay increase and told to expect another quite soon which
means she earns at least as much money here as I could earn back home *if* I
got a job (which is not guaranteed in the short term). Obviously then in terms
of dual earnings it makes more sense for us to be in the US.
Initially, once I'd decided to extend my visit from 10 days to 90, I'd planned
that if I didn't get a job in the 90 days (April 6) I'd return to the UK for a
couple of months, during which Lauren could visit me, and then I'd return for
another 90 days under the visa waiver, try to get H1 sponsorship but if that
still failed then we might marry (Having read the archives I am nfairly up to
date on the legal and ethical repercussions of such a move). Or if I thought
the INS would allow it go home for another couple of months before returning.
So from what I've read, it seems if I leave and come back with marriage
intentions, when I apply for an AOS after a marriage they may look upon my
conduct as visa fraud. And that Lauren will need to file a waiver with all the
additonal stress, hassle and probable legal expense that that will entail.
It now seems to me I might be better to *not* return home in April but to stay
on indefinitely looking for work - if I'm correct I have 180 days from April to
get a Visa sponsored job, whereupon I can leave and return on the H1 visa and
not be subjected to the 3 year bar. Alternatively I can leave within those 180
days and, not having found work, facilitate a later return under the K1 visa.
The final alternative is I just stay here beyond the 180 days and we get
married at our leisure.
None of these options are ideal of course. I have always been a law abiding
citizen and I strongly dislike the idea of being in the US as an overstay
(unable to work, no health care, unable to visit friends and family for the
foreseeable future) but it seems the system is forcing me into that as the
least worst option.
The alternatives I can see are
a) Lauren and I get married before my 90 days expires at the start of April.
(Too soon for a wedding - as good as our relationship is, even at the this
point we will only have known each other for a little over 4 months)
b) she and I carry on a long distance relationship before a future marriage (We
don't want to be apart - a three week separation over Christmas was painful
enough)
c) Lauren comes with me to the UK (I don't have a job there, she has one here.
She has never even visited the UK so the idea that she moves there is
understandably a little daunting for her)
My questions (I had written these a couple of weeks ago and have answered the
first one myself since with info gauged from lurking. Any corrections much
appreciated)
Q:If I do go back to the UK in April, am I allowed to come in for interim
visits as long as these are only intended to be visits, and I only intend to
get married on an eventual K1?
A: Yes technically. Having ultimate intent to marry a US citizen is likely to
make an INS official suspicious about granting another visa waiver (esp. since
it would be my 3rd in under a year). Especially if you want to stay for 90
days *again*. And if you leave the US again, having visited this NG, you will
be unable to re-enter and innocently marry under the VWP since you now know
this is not allowed.
Q:I came in Jan 7, my 90 days expires on Apr 6. So Apr 6 is the day stamped on
my I94 but in pen my intended return date is Jan 16. At what date am I facing
a 3 year bar? (I.e. does the 180 days start counting from Jan 7, Apr 6 or Jan
16?)
Q:If I pass this date will this have serious repurcussions if I do not leave
the US before successful AOS? (Am I right in thinking I will be ineligible for
AP if I pass the 180 day mark?)
Q:If the INS believes that I entered *not* with the intention of marrying, or
even over staying the 90 days, but leaving within those 90 days, is that a
"material breach" justifying a bar?
***
Any answers to these would be much appreciated. I am currently agonising over
the choice between not seeing my home country for perhaps a year or more and
being separated for a substantial time period from my girlfriend. I'd like to
be as informed as possible before I make that choice.
Thanks
Brian
myself fairly up to speed. But any answers from the experts to the questions
after this long (and largely irrelevant
) introduction would be muchappreciated
Backstory:
I am a UK citizen who came to the US in Sept 2002 for a 90 day break (VWP). In
the last month I met and fell in love with Lauren - a US citizen - but I
returned to the UK (as VWP demanded) in December. I always intended coming
back at some stage to find out if the relationship which seemed very promising
was worth rearranging our lives for, but initially I'd intended to stay in the
UK for a couple of months. (I worried the INS would just suspect anything less
would just be a trip home to see the family) In the end the separation over
the holidays proved harder on both of us than we'd anticipated. Lauren was
unable to get time off work to visit the UK until the 2nd half of February and
so I returned for a 10 day visit in early January. At this point we had come
to no conclusions about one of us emigrating in the long term. (After all we'd
known each other barely a month!)
When the time came to return though, after my 10 day visit in the US, again
with the relationship seeming very promising, Lauren and I thought we should
really see how solid we were and try a trial period of cohabitation. I sought
advice on whether I could legally extend my 10 day visit up to the 90 day VWP
max. I was advised at independently that (since this was a genuine change of
mind) that was OK. Anyway I hoped to find employment and visa sponsorship
under the H1 program (I have a college degree) but in the current climate this
appears to be proving more difficult than I thought - employers have their
choice of applicants so why bother with the extra hassle and expenses they
would incur with me?). The likelihood that when my 90 days expires I will
still be unemployed increases with each day.
Initially Lauren was also very unhappy with the demands of her job so the
possibility that she would move with me to the UK was always there. However
she recently got a big pay increase and told to expect another quite soon which
means she earns at least as much money here as I could earn back home *if* I
got a job (which is not guaranteed in the short term). Obviously then in terms
of dual earnings it makes more sense for us to be in the US.
Initially, once I'd decided to extend my visit from 10 days to 90, I'd planned
that if I didn't get a job in the 90 days (April 6) I'd return to the UK for a
couple of months, during which Lauren could visit me, and then I'd return for
another 90 days under the visa waiver, try to get H1 sponsorship but if that
still failed then we might marry (Having read the archives I am nfairly up to
date on the legal and ethical repercussions of such a move). Or if I thought
the INS would allow it go home for another couple of months before returning.
So from what I've read, it seems if I leave and come back with marriage
intentions, when I apply for an AOS after a marriage they may look upon my
conduct as visa fraud. And that Lauren will need to file a waiver with all the
additonal stress, hassle and probable legal expense that that will entail.
It now seems to me I might be better to *not* return home in April but to stay
on indefinitely looking for work - if I'm correct I have 180 days from April to
get a Visa sponsored job, whereupon I can leave and return on the H1 visa and
not be subjected to the 3 year bar. Alternatively I can leave within those 180
days and, not having found work, facilitate a later return under the K1 visa.
The final alternative is I just stay here beyond the 180 days and we get
married at our leisure.
None of these options are ideal of course. I have always been a law abiding
citizen and I strongly dislike the idea of being in the US as an overstay
(unable to work, no health care, unable to visit friends and family for the
foreseeable future) but it seems the system is forcing me into that as the
least worst option.
The alternatives I can see are
a) Lauren and I get married before my 90 days expires at the start of April.
(Too soon for a wedding - as good as our relationship is, even at the this
point we will only have known each other for a little over 4 months)
b) she and I carry on a long distance relationship before a future marriage (We
don't want to be apart - a three week separation over Christmas was painful
enough)
c) Lauren comes with me to the UK (I don't have a job there, she has one here.
She has never even visited the UK so the idea that she moves there is
understandably a little daunting for her)
My questions (I had written these a couple of weeks ago and have answered the
first one myself since with info gauged from lurking. Any corrections much
appreciated)
Q:If I do go back to the UK in April, am I allowed to come in for interim
visits as long as these are only intended to be visits, and I only intend to
get married on an eventual K1?
A: Yes technically. Having ultimate intent to marry a US citizen is likely to
make an INS official suspicious about granting another visa waiver (esp. since
it would be my 3rd in under a year). Especially if you want to stay for 90
days *again*. And if you leave the US again, having visited this NG, you will
be unable to re-enter and innocently marry under the VWP since you now know
this is not allowed.
Q:I came in Jan 7, my 90 days expires on Apr 6. So Apr 6 is the day stamped on
my I94 but in pen my intended return date is Jan 16. At what date am I facing
a 3 year bar? (I.e. does the 180 days start counting from Jan 7, Apr 6 or Jan
16?)
Q:If I pass this date will this have serious repurcussions if I do not leave
the US before successful AOS? (Am I right in thinking I will be ineligible for
AP if I pass the 180 day mark?)
Q:If the INS believes that I entered *not* with the intention of marrying, or
even over staying the 90 days, but leaving within those 90 days, is that a
"material breach" justifying a bar?
***
Any answers to these would be much appreciated. I am currently agonising over
the choice between not seeing my home country for perhaps a year or more and
being separated for a substantial time period from my girlfriend. I'd like to
be as informed as possible before I make that choice.
Thanks
Brian
Feb 24th 2003, 10:50 pm
#2
Concierge
Joined: Apr 2001
Posts: 46,393
You raised a variety of questions. One of which, Intent to Marry Being Considered a Fraudulent and Illegal Act When Entering the US, is a difficult question to answer without finding the respondent in hot water. One answer might be construed as advice to commit and illegal act. Another answer might be seen as a way for someone circumvent the law. So I'm chickening out here and will answer your questions regarding overstay.
As a VW user, you are to exit the US by the 90th day of your entry. I believe that although your I-94 states a date in January, you are still legally allowed to remain inside of the US on holiday for the full 90 days. That being the case, your overstay starts on the 91st day. Any time over the 90th day means you can no longer use the VWP to enter the US. You will first have to obtain a formal B-2 Tourist Visa from the US Consulate in London. The fact that you have no permanent employment will mean they will be reluctant to give it to you.
The ban of 3 to 10 years starts on the first day of the 7th month of your overstay. The penalty starts small and increases with the longevity of your overstay.
As for the K-1 with an overstay: It is doable. An overstay will, as shown by Mrs. Strickland's experience with the K-3 and the US Consulate in London, not be a hinderance. She obtained approval of the K-3 even though she overstayed by several months. Will you be so lucky? Probably and if not, then a waiver is required showing hardship of the USC in being able to live in your country.
As for coming and going to the US for 90 day periods during the course of a year or so, as you stated it is a crap shoot. It is entirely up to the agent at the POE who will determine if you are free to enter. If they feel that there is the slightest chance that you will enter and not leave, then they will not allow you to enter and will return you to England post haste. The VWP is for holidays. Not for living in the US to determine if a love interest if viable.
Rete
As a VW user, you are to exit the US by the 90th day of your entry. I believe that although your I-94 states a date in January, you are still legally allowed to remain inside of the US on holiday for the full 90 days. That being the case, your overstay starts on the 91st day. Any time over the 90th day means you can no longer use the VWP to enter the US. You will first have to obtain a formal B-2 Tourist Visa from the US Consulate in London. The fact that you have no permanent employment will mean they will be reluctant to give it to you.
The ban of 3 to 10 years starts on the first day of the 7th month of your overstay. The penalty starts small and increases with the longevity of your overstay.
As for the K-1 with an overstay: It is doable. An overstay will, as shown by Mrs. Strickland's experience with the K-3 and the US Consulate in London, not be a hinderance. She obtained approval of the K-3 even though she overstayed by several months. Will you be so lucky? Probably and if not, then a waiver is required showing hardship of the USC in being able to live in your country.
As for coming and going to the US for 90 day periods during the course of a year or so, as you stated it is a crap shoot. It is entirely up to the agent at the POE who will determine if you are free to enter. If they feel that there is the slightest chance that you will enter and not leave, then they will not allow you to enter and will return you to England post haste. The VWP is for holidays. Not for living in the US to determine if a love interest if viable.
Rete
Feb 24th 2003, 11:06 pm
#3
Guest
Posts: n/a
Hi Brian!
Ask most people on this newsgroup whether they like the way the US immigration law works and they'll probably tell you no - it's unfair and sometimes it stinks. Having said that, most people here are suffering their way through the system in order to do things the legal way.
Seems to me, Brian, you're asking our advice on the best way to break the law without serious repercussions and with the least inconvenience to you. It's people behaving in that way that makes the POE officials so suspicious and results in genuine cases being disbelieved sometimes.
The legal process is tough. Long-distance relationships are tough. The waiting is tough. All of it is expensive. And all of it is probably unfair. But it gets you there in the end. If your relationship survives the INS rollercoaster you know you have something pretty special. And if it doesn't, well you know that too. Yes, it's hard. Everybody here knows that. Welcome to the family!
I'm not going to tell you how to beat the system. But I wish you all the best with your future whatever you do.
Regards
-=-
Scarlett
Ask most people on this newsgroup whether they like the way the US immigration law works and they'll probably tell you no - it's unfair and sometimes it stinks. Having said that, most people here are suffering their way through the system in order to do things the legal way.
Seems to me, Brian, you're asking our advice on the best way to break the law without serious repercussions and with the least inconvenience to you. It's people behaving in that way that makes the POE officials so suspicious and results in genuine cases being disbelieved sometimes.
The legal process is tough. Long-distance relationships are tough. The waiting is tough. All of it is expensive. And all of it is probably unfair. But it gets you there in the end. If your relationship survives the INS rollercoaster you know you have something pretty special. And if it doesn't, well you know that too. Yes, it's hard. Everybody here knows that. Welcome to the family!
I'm not going to tell you how to beat the system. But I wish you all the best with your future whatever you do.
Regards
-=-
Scarlett
Feb 24th 2003, 11:11 pm
#4
I'm back!
Joined: Jul 2002
Location: Richmond, VA, USA
Posts: 4,316
Originally posted by ScarlettHill
I'm not going to tell you how to beat the system. But I wish you all the best with your future whatever you do.
I'm not going to tell you how to beat the system. But I wish you all the best with your future whatever you do.
~ Jenney
Feb 25th 2003, 12:22 am
#5
Forum Regular
Joined: Oct 2002
Location: Boston MA
Posts: 168
my fiance came three times on the visa waiver, changing his return date all of the three times. on the fourth attempt, he was questioned BRUTALLY and came very close to not being allowed in, as they felt he either already 'lived' here or was intending to stay on this visa. i had heard prior to his fourth visit that after three visits on the vwp, things can get sticky.
it seems to me that if you love each other, the only way to go is the k1 visa. go home, start the process, be patient. my fiance and i have been apart for six months now, for the second time in our 2 year relationship. by the time we see each other again, it will be seven months.
do as you wish, but all that you ask about is fraught with risk. do it the k1 way, and your chances of having a life together without hassle much improve.
my two cents.
generally i have the feeling, if i can wait, you can wait. i'd be suspicious of 'new love' that can't hold on for four to six months..or even a year.
it seems to me that if you love each other, the only way to go is the k1 visa. go home, start the process, be patient. my fiance and i have been apart for six months now, for the second time in our 2 year relationship. by the time we see each other again, it will be seven months.
do as you wish, but all that you ask about is fraught with risk. do it the k1 way, and your chances of having a life together without hassle much improve.
my two cents.
generally i have the feeling, if i can wait, you can wait. i'd be suspicious of 'new love' that can't hold on for four to six months..or even a year.
