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Can someone who overstayed before moving back to her country, return to US to visit or marry?

Bellevue, WA |

My girlfriend overstayed when visiting 5 years ago. She was naive and was tricked by a bad person into overstaying without knowing the processes. She believed she was staying as a student as she started attending school, but she didn't receive a student visa after stupidly handing over "application fees". She returned to South Korea on her own, 3 years after her travel visa expired. We want to get married but I can't move to Korea due to a lack of employment options. I've established my career here in the US and can even provide for both of us if necessary. We're getting older now so need to have children soon and we want them to be US citizens. Is there any way to get her into the US? Is there a chance that she isn't even barred? Can we check if she even has a 10 year bar?

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Attorney answers 6


She is subject of a ten year bar under the timelines you cited. I think you need to visit a local immigration counsel of your choice to develop a workable plan to initiate the desired acts of marriage and AOS.

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Your fiancee definitely has a ten year ban on lawful reentry under 212(a)(9)(B) based on the facts you described. You wll need a waiver before she can enter the country again. You should consult with a qualified immigration attorney on how best to proceed. You can easily find qualified immigration lawyers using to do a search, and you can narrow your search by selecting those with experience in waivers. AILA is the American Immigration Lawyers Association and any immigration lawyer worth his or her salt is a member of this organization. Best of luck to you.


Possibly. You NEED to have a consultation with an experienced immigration attorney. AVVO is not an answer to your prayers. An experienced immigration attorney might be.

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If she overstayed by over 365 days she is subject to the bar. You could apply for a fiancé visa and apply for the unlawful presence waiver.

The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.


Once she overstayed her tourist visa, she was already barred for ten years. The bar starts at the time she leaves the country, and therefore, she would not be able to apply for ten years after she left the US, unless she seeks a waiver. Once granted an interview, the chances of immigration not knowing when she departed is slim since she will have to be honest during the consular interview, otherwise, she can be charged with immigration fraud which carries significant penalties. I suggest you speak with an immigration attorney in order to explore your options.


Since you sincerely want to get married, anyway, she may be eligible to apply for a waiver of the ten year bar if she can show it would cause extreme hardship to you as her U.S. citizen spouse if they don't grant her the visa.

This reply is intended only as general information and does not constitute legal advice in any particular case. This reply does not create an attorney/client relationship.