Can someone who overstayed their visa be eligible for a k-1 visa? 10 Answers as of January 17, 2011

Can an foreign national who overstayed his visitor visa 12 years ago be eligible for a k-1 visa now? He did not undergo any removal proceedings, he simply left. He overstayed his b-2 visa by 3 1/2 years. We have an established relationship, but would like to know if because of this overstay in 1998-99, is he eligible for a k-1 visa?

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Carlos E. Sandoval, P.A.
Carlos E. Sandoval, P.A. | Carlos Sandoval
Yes. There was a 10 year penalty, but since it was more than 10 years ago it already elapsed.
Answer Applies to: Florida
Replied: 1/17/2011
JCS Immigration & Visa Law Office
JCS Immigration & Visa Law Office | Jack C. Sung
He is qualified for the K-1 visa. However, because of his overstay, he will need to submit an I-601 waiver, and if the waiver is denied by the Embassy, then he will not be able to obtain a visa. He has a 10 year bar on his record because of the overstay, and the I-601 waiver, if approved, will excuse his past overstay in the United States.
Answer Applies to: California
Replied: 1/7/2011
The Vega Law Firm
The Vega Law Firm | Linda Vega
The overstay creates unlawful presence in the U.S. However, you may be able to file for a waiver with the K visa and show extreme hardship.

Also, the K Visa must be filed on behalf of a finace(e) to a U.S. Citizen only.
Answer Applies to: Texas
Replied: 1/6/2011
Feldman Feldman & Associates, PC
Feldman Feldman & Associates, PC | Lynne Feldman
So long as you have been back in your country for 10 years you can return to the US on a K-1. Well have to prove that you were in your home country, but it will likely be a straightforward process.

Feel free to give me a call if you have any other questions or want to set up a consultation.
Answer Applies to: California
Replied: 1/6/2011
Law Office of Christine Troy
Law Office of Christine Troy | Christine Troy
When a person overstays by 365 days or more and departs the US, this triggers a ten year bar to reentering the US. If he left the US in 1999, then that 10 year bar is satisfied. Therefore based on the exact information in your question, you are now able to sponsor him for that visa category.
Answer Applies to: California
Replied: 1/6/2011
    Nicastro Piscopo, APLC
    Nicastro Piscopo, APLC | Louis M. Piscopo
    Yes the person is eligible for an K1 visa. If they have been outside the U.S. for more than 10 years they are no longer inadmissible to the U.S. due to their previous 3 1/2 years of unlawful presence. They still may be questioned about the previous time in the U.S. and I would recommend that you hire an attorney to handle this type of case given these facts.
    Answer Applies to: California
    Replied: 1/6/2011
    Law Office of Immigration & International Trade Law
    Law Office of Immigration & International Trade Law | Linda Liang
    He is eligible. It is only that he is subject to immigration bar. Get ready to apply for a waiver for that bar. Professional help is advised.
    Answer Applies to: Florida
    Replied: 1/6/2011
    Marie Michaud Attorney At Law
    Marie Michaud Attorney At Law | Marie Michaud
    There is a 10 year ban for those who overstay for more than one year, then voluntarily left the US. The 10 years begin on the first day the person left the US. It appears this person has already been outside the US for 10 years, so everything appears fine. Be prepared to show proof of residence for 10 years outside the US. Be sure to properly disclosed the overstay period. Lying on the application is the worst thing. Good luck.
    Answer Applies to: California
    Replied: 1/5/2011
    Calderón Seguin PLC
    Calderón Seguin PLC | Ofelia L. Calderon
    Technically, yes. An overstay of more than one year bars re-entry for ten years. If twelve years have passed, the person is no longer statutorily barred. Obviously, there is always discretion but twelve years is a long time ago.
    Answer Applies to: Virginia
    Replied: 1/5/2011
    Pauly P.A.
    Pauly P.A. | Clemens W. Pauly
    It appears from what you write that your fiance is not longer subjected to the 10 year bar and thus generally eligible for a K-1 visa; however you are best advised to discuss this in more details with an immigration lawyer in order to properly prepare and document the application.
    Answer Applies to: Florida
    Replied: 1/5/2011
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