My husband is Canadian and I am a US citizen. He came to visit on a passport in July 2018. We married in December 2018. He wants to stay in the US and work on getting permanent residency (K1 Visa) but he overstayed (by a month) and is afraid of receiving a ban. Will he be able to return if he goes to Canada? Would it be better if he stayed here and waited for the visa? Thank you.
At this point if he were to leave he would not be able to return to the US. As you are a Citizen that can be overlooked provided you file the correct papers, and meet certain qualifications. You would not be filing for a K1 visa but for permanent residency. An attorney can assist you with the preparation, filing, and interview process.
This is not legal advice until I am retained and have reviewed all facts about your situation.
A US citizen sponsored spouse is no longer qualified for a K-1 visa. The US citizen may sponsor the overstay spouse by filing form I-130 and the overstay spouse may file a green card application in the US and not leave the US.
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Thank you for your question.
There are a couple of items in your question. First, if you have married and he is in the United States, the K1 is no longer your avenue for gaining a green card. Second, if your husband has already overstayed, you may at this point file the I-130 for your spouse. Third, your spouse may file the I-485 while remaining in the United States for the entire duration of the processing in order to gain a green card. Fourth, should your husband leave the United States, due to his overstay, he would not be allowed back in immediately and thus the I-485 route would no longer be valid.
I recommend you speak with an immigration attorney to review the options and repercussions of your decisions.
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If he only overstayed his status by a month, he will not be subject to the 3- or 10-year bars if he leaves now. That said, it will likely be a lot faster and easier to take care of his paperwork here, assuming he's eligible for adjustment of status. There are lots of things to review and consider, so I suggest that you meet with the attorney of your choice as soon as possible - while he still has different options to choose from.
Good morning. First of all, the K1 visa is for Fiance's of US Citizens so, if you are married, that is not the correct process. You may have several options so it would be best to discuss those in person with an immigration attorney. He would likely not have a ban if he now returned to Canada but every entry is discretionary and, if he overstayed, he may not be allowed to re enter again.
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