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Immigration Issues/Overstayed F-1 visa and getting married

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Question
Hello,

Me and my fiancee decided to get married in February, and I previously overstayed my F-1 visa by more than a year. He is a military and he is stationed overseas, but he wants to come and get married here in my country. As of now we don't know if the marriage certificate from my country is going to be valid for the immigration process, or if we also have to get an American certificate. In that case, how can we do it? Also, since he is not residing here, does he have to file the forms overseas, or can we do it in my country, at the American consulate? How do you suggest we proceed? (we will get married in my country no matter what). How can we avoid to get stuck on the way with the problem that I overstayed my visa before?

Thank you so much for your attention and politeness,


Answer
Persons with more than six months of "unlawful presence" in the U.S. may not be allowed to return to the U.S. without a "waiver" for 3 years, and if more than one year of "unlawful presence" the ban is 10 years.  In general, people who were in the U.S. previously on student visas were granted what is known as "duration of status" marked as "D/S" in their passports.  A memo from the Immigration Service states that persons who entered the U.S. in duration of status who fell out of status by discontinuing their education have not accrued "unlawful presence" unless the Immigration Service or an Immigration Judge have made a finding that they have violated their status.  Therefore, you may or not be allowed back to the U.S. without a "waiver" depending on the specific facts of your case.  It is unclear from your question.

If you need a "waiver" it will be possible, but much more difficult, to return to the U.S.  The legal standard for waivers is very high, and whether a waiver is granted depends on legal eligibility, the evidence presented, and the person adjudicating the waiver.

Because you were out of status in the U.S. for some period of time, you should consider hiring a lawyer to carefully review the facts of your case and advise you regarding the best way to proceed.

Regarding your question about whether a marriage certificate from your country would be sufficient, the answer is clearly yes.  You do not have to obtain a U.S. marriage certificate in order to apply for immigration status on the basis of a marriage to a U.S. citizen.

Marco Pignone III, Esq.
www.click4immigration.com

Immigration Issues

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Marco Pignone III

Expertise

Any question relating to immigration law.

Experience

Practicing attorney specializing in immigration for seven years.

Organizations
American Immigration Lawyers Association American Bar Association

Education/Credentials
J.D. with honors from the University of Florida College of Law

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