Returning to US with K1 after overstaying visa

Question

Can I return to US with a k1 fiance visa, after overstaying my J1 since 2015 until 2020, I left the country voluntarily but wish to come back. Is it better to try fiance visa or get married and then apply for immigration visa. Thanks

Answer 1

Either fiance visa before marriage, or immigrant visa after marriage, should be okay. Fiance visas and immigrant visas should not be denied unless there is a ban or they are not convinced of the genuineness of your relationship. (An immigrant visa after marriage might be slightly more likely to succeed than fiance visa, since after the marriage there would be no question about whether you will get married at that point, and for an immigrant visa the petitioner would have to file a binding Affidavit of Support, confirming their commitment.) Based on what you have described, you should not have an unlawful presence ban. The following is a discussion of why you don't have the ban.

INA 212(a)(9)(B) provides for a 3-year ban if you accrue 180 days of unlawful presence and then leave the US, and a 10-year ban if you accrue 1 year of unlawful presence and then leave the US. You start accruing "unlawful presence" in one of 3 ways:

1. You stay past the date on your I-94, if your I-94 has a specific date;
2. You applied for some benefit to USCIS and were denied with a determination that you were out of status; or
3. A final order was made against you in removal proceedings in immigration court

For people who were admitted with "D/S" on their I-94 instead of a date, unlawful presence can only start accruing in the last two ways described above (i.e. applied for a benefit and were denied, or final order in immigration court). Given that you were admitted with "D/S" on your I-94, if you never applied for a benefit to USCIS, and were never given a notice to appear for removal proceedings, then you never started to accrue "unlawful presence", no matter how long you stayed past the end of your J-1 program. Therefore, you did not trigger an unlawful presence ban when you left the US.

The USCIS Policy Manual is still in the process of incorporating the USCIS Adjudicator's Field Manual, and the section on unlawful presence ban, USCIS Policy Manual, Volume 8, Part O, is not written yet and just has a big PDF dump of AFM chapter 40. AFM chapter 40.9.2(b)(1)(E)(ii), Nonimmigrants Admitted for Duration of Status (D/S) (on page 76 of the current PDF), says:

(ii) Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge's order. It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated. See 8 CFR 239.3.

In the Foreign Affairs Manual, 9 FAM 302.11-3(B)(1)(b)(2) similarly says:

b. DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

(2) For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue the day after the formal finding is made;

9 FAM 302.11-3(B)(1)(d):

d. For persons who have been admitted for duration of status (DOS) (as is usually the case with aliens in A, G, F, J, and I visa status), unlawful presence will not accrue unless DHS, IJ, or the BIA finds a status violation in the context of a request for an immigration benefit or in the course of removal proceedings. This finding of status violation by the DHS, an IJ, or the BIA will cause a period of "unlawful presence" to begin. In DOS cases where DHS or an IJ or the BIA makes a formal status violation finding, the alien begins accruing unlawful presence on the day after the finding (i.e., the date the finding was published /communicated). For example, if an applicant presents a letter from DHS dated December 1, 2008, that says the applicant was out of status starting on May 28, 2001, the applicant began to accrue unlawful presence as of December 2, 2008, not May 28, 2001.

It should also be noted that in 2018, USCIS put out a memo that supposedly made anyone admitted in F, J, or M status accrue unlawful presence whenever they are out of status after August 9, 2018 (regardless of whether their I-94 has a date or D/S). However, this has been blocked by a court injunction, as noted on the USCIS students and exchange visitors page. The litigation history is summarized on this page, but basically, a temporary restraining order was issued in January 2019, a preliminary injunction was issued in May 2019, and a permanent injunction was issued in February 2020. In July 2020, DHS voluntarily asked to withdraw its own appeal in the case, and the court granted this. So this issue is settled and the memo is dead.