K-1 question

[momof2]

My fiancee is from Mexico and has been here off and on since 2002, but has been here without leaving the last 2.5 yrs Can I file a fiancee visa with him here? I know that if he goes back he could face a bar, any idea on how long,3,5,10?

[kitkat1]

A fiance visa petition can be filed while he is in the US.

Exactly when and for how long were his entries? That will determine if he is eligible for a waiver.

More than 365 days of illegal presence = 10 year ban. But re-entry and illegal presence after more than 365 days of illegal presence = lifetime ban and no waiver available for 10 years since departing the country.

The dates and details make all the difference.

[Laura]

Hi Momof2 - I'm not positive, because we'd need to know a little more detail, but it sounds like he will have a lifetime bar, with no waiver available for 10 years. You cannot, under any circumstance, apply for adjustment of status in the U.S. because he entered without inspection. You can file a fiance petition, but he would eventually have to go to CDJ to have his visa interview.

"Section 212(a)(9)(C)(i)(I) (http://www.shusterman.com/aos-up.html) of the Act renders inadmissible those aliens who were previously unlawfully present in the United States for an aggregate period of more than one year who enter or attempt to re-enter the United States without being admitted. These aliens are permanently inadmissible, however, after they have been outside the United States for at least 10 years, they may seek consent to reapply for admission from the Attorney General."

Many us us have filed waivers for our fiances/spouses who fell under 9(b) - meaning they were unlawfully present more than one year and then left the U.S. which triggers the 10-year bar. But if the immigrant has never attempted to re-enter the U.S. illegally after the first stay they are immediately eligible for the I-601 waiver.

Has he ever been caught and released at the border?

[momof2]

Well he actually came here in 2001, in 2002 he was arrested and deported. When he said that he came back and forth he has a brother living on the border in MExico and would go and stay like a month then come back. He has been here since approx April of 2005 without leaving. What about filing a I-601 I forgot to ask him if he has anypaper work from the imm. stating any bars and for what reasons.

[Laura]

In 2002 he was deported? Like detained and formally deported? Was he just picked up, or arrested for a crime and then deported? And then he re-entered EWI?

If that is the case he is definitely 9(c) - he will have to remain outside the U.S. for 10 years before you will be able to file an I-601 waiver for him to get his visa. You might as well marry and try to stay under the radar and hope that the laws change.

Otherwise, you'll have to move to Mexico or a third country, wait out the 10-year ban, and then file a waiver and hope it is approved. Sorry for the bad news.