How will my situation affect my visa application? 13 Answers as of November 30, 2011

I came with a K1 visa but did not marry the petitioner. I had a child with this person. He told me that we were not getting married a day before my I-94 expired and I did not have money to purchase a ticket home. I ended overstaying for 5 months. During this time, I met someone else and we have decided to get married. Is it best to get married outside the country or within? Will I be barred from entering the US? How wil this affect our filing process?

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Law Offices of Svetlana Boukhny
Law Offices of Svetlana Boukhny | Svetlana Boukhny
You need to make sure you have not yet overstayed 180 days (COUNT THE DAYS) from the expiration of your I-94. You will need to go outside the US ANYWAY since you are not eligible to adjust status within the US through any means other than through marriage to the original petitioner. However, as long as you have no overstayed by more than 180 days, if you depart now, you will be able to return with a visa to get married to the new person. If you have overstayed by more than 180 days, you will be barred from reentry for 3 years as soon as you depart the US. If you want 1 year, you will be barred from reentry for 10 years.
Answer Applies to: California
Replied: 11/30/2011
Law Offices of Alan R. Diamante, APLC
Law Offices of Alan R. Diamante, APLC | Alan R. Diamante
You are most likely barred from applying from adjustment of status and will have to do consular processing. If you have been living in the U.S. unlawfully, you will most likely have to apply for a waiver to reenter lawfully.
Answer Applies to: California
Replied: 11/14/2011
Joseph Law Firm
Joseph Law Firm | Jeff Joseph
Under recent guidance and case law from USCIS, you can still adjust status in the United States and obtain permanent residence even if you are divorced from the person who sponsored you on the K-1 visa. There is a recent Board of Immigration Appeals decision that supports this position. You will need to file for divorce and will need to find a substitute sponsor for the affidavit of support, but you can continue with the permanent residence process even if you are no longer with the U.S. citizen spouse. Of course, it will be your burden to demonstrate that the marriage was bona fide and not for immigration purposes, but assuming you can do that, you can continue with the process. You should definitely consult with an immigration attorney familiar with these types of cases before proceeding.
Answer Applies to: Colorado
Replied: 11/9/2011
King & Ballow
King & Ballow | Bruce E. Buchanan
A K-1 visa holder can only marry sponsor to adjust status. Since you didn't, you are overstaying. If you leave before overstaying for 6 months, you will not face a 3 year bar. If stay over 6 mos but less than 1 year, you face 3 year bar which can be overcome if you can prove extreme hardship.
Answer Applies to: Tennessee
Replied: 11/8/2011
Law Offices of Kenneth Wincorn P.C.
Law Offices of Kenneth Wincorn P.C. | Kenneth Wincorn
You will need to adjust outside. Contact an attorney immediately as you are about to cause yourself a huge problem by overstaying more than 6 months and thus creating a 3 year bar. Weather you marry here or after you leave is a decision you can discuss with the attorney.
Answer Applies to: Texas
Replied: 11/8/2011
    Reza Athari & Associates, PLLC
    Reza Athari & Associates, PLLC | Reza Athari
    Doesn't matter where you marry but you have to go home and ask for a new visa. If you overstay by 180 days, you will be barred for 3 years and if 365 or more, the bar will be 10 years but you may apply for a waiver and come back sooner.
    Answer Applies to: Nevada
    Replied: 11/8/2011
    Christian Schmidt, Attorney at Law
    Christian Schmidt, Attorney at Law | Christian Schmidt
    You cannot obtain permanent residence through the marriage to someone else than the person who petitioned you for the K visa. Moreover, you cannot be granted an immigrant visa at a U.S. Consulate for 3 years if you overstay your status for 180 days or more and will need a waiver if you apply through your marriage. It does not matter where you get married in your situation. It is more important that you leave the U.S. before you accrued 180 days of unlawful presence. You can pursue your green card from outside the U.S. after you got married but it will take 8 to 12 months before you can return. Good luck!
    Answer Applies to: California
    Replied: 11/8/2011
    Kriezelman, Burton & Associates | Matthew Scott Kriezelman
    If you only overstayed your visa for 5 months then there should be no bars from you returning to the United States on any other visa.
    Answer Applies to: Illinois
    Replied: 11/8/2011
    Law Offices of Grinberg and Segal
    Law Offices of Grinberg and Segal | Alexander Segal
    You cannot adjust your status in the United States. Unfortunately, there are no exceptions for your situation to the limitations on adjustment of status by K-1 beneficiaries. You will have to return to your native country. As such, you can marry in the United States or overseas depending upon what you and your fiancé decide. Once you are married, your spouse can petition for you to receive an immigrant visa. As you have remained in the United States without status, you will need a waiver of a three or ten year bar, depending upon how long you have been out of status. This waiver will require you to demonstrate extreme hardship to your spouse if you cannot re-enter the United States before the ten years run. It is a gamble, but appears to be the only option based upon the facts you have presented.
    Answer Applies to: New York
    Replied: 11/8/2011
    Immigration Attorneys, LLP | Robert R. Gard
    You are not eligible (see highlighted portions of the applicable law and regulations below) for adjustment of status to permanent resident within the U.S., as you did not comply with the terms and conditions of your K-1 fiancé visa admission, and failed to marry within 90 days of your K-1 admission, but your new husband could still file a petition on your behalf for processing at a U.S. Consular Post in your country of birth. However, you do NOT want to remain in the U.S. for more than 180 days beyond the expiration date on your I-94 card, as you may become subject to bars against readmission for three to ten years.
    Answer Applies to: Illinois
    Replied: 11/8/2011
    Law Office of Felipe A. Malo, P.A.
    Law Office of Felipe A. Malo, P.A. | Felipe Augusto Malo
    With a k1 you can only adjust your status through the petitioning USC. So if you marry with the new USC you cannot adjust status inside the USA. You will have to consular process and if you overstay more the 180 and less than 364 you will have a 3 year bar. If you overstayed more than 365 days you will have 10 year bar. Hence you will need an i601 waiver to forgive the 3 or 10 year penalty.
    Answer Applies to: Florida
    Replied: 11/7/2011
    Immigration Law Offices of Misiti Global, PLLC.
    Immigration Law Offices of Misiti Global, PLLC. | Nicklaus Misiti
    You had better leave immediately. Once you overstay for more than 180 days you will be barred from returning for 3 years. If you overstay for more than a year you will be barred for 10 years. Leave the US and file a petition through your new spouse. Speak to an attorney for more details.
    Answer Applies to: New York
    Replied: 11/7/2011
    Feldman Feldman & Associates, PC
    Feldman Feldman & Associates, PC | Lynne Feldman
    If you did not get married to the person who sponsored you for K-1 you have no choice but to go home and process for permanent residency through your new spouse. You may be subject to a bar and need a waiver depending on how long you have stayed after your K-1 expired. I suggest a paid consultation to get all the facts sorted out. This can be scheduled by contacting my office below.
    Answer Applies to: California
    Replied: 11/7/2011
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