Legal Question in Immigration Law in California

Your boyfriend will be barred to enter the U.S. for 10 years because he overstayed for more than 1 year. You can either file a K-1 for him as a financee, or file a I-130 immigrant petition if you get married.

However, he needs a I-601 waiver to cure his immigration violation (10-year bar), no matter you file K-1 or I-130 for him. We suggest you to consult with an immigration attorney.

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Either one will take a long time. His situation is not an easy straighforward case. Either K-1 visa or Immigrant visa is likely to take a long time to process and approve. Because of his unlawful presence in USA for over a year (assuming that there are no any other ineligibility issues), he will be denied a visa at first and given an option to file a hardship waiver. If a waiver is approved, a visa will be approved as well.

K3 visa makes no sense. K1 or Immigrant Visa would be the best choice, depending on your situation.

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Either a filing a K-1 fiance petition with USCIS or getting married and filing an I-130 may be an option. However, your fiance won't be able to obtain any visa at the consulate without obtaining a hardship waiver for having overstayed his visa in the U.S. for more than one year. You should follow up with an immigration attorney to determine what are the best options at this point.

Note: The above response is provided for legal information only and should not be considered legal advice; it doesn't create an attorney-client relationship. If you would like to follow-up with confidential advice on your specific situation regarding immigration issues, you may contact our office offline at 415-387-1364.

Hello:

Assuming that you were to marry him in Mexico sooner than later, you could apply for the K3 with the Waiver of the 3/10 year bar. If sufficient hardship is shown, the U.S. Consulate in Ciudad Juarez will adjudicate the Waiver on an expedited basis.