Which Route to take? (K1, K3, DCF)

[OHP_CAL 0]

I am a US citizen currently working/living in Baghdad. My recently engaged fiance is a Canadian citizen working/living in Vietnam.

My fiance and I planned to wed on Valentine's day next year in Virginia. Is there any legal ramification of us wedding in the US without her getting a K-1d visa? What are our options in regard to K-1, K-3, and possibly DCF? Which route required the least paperwork taking under consideration of our current geographical circumstances?

Thank you,

James

Edited July 28, 2009 by OHP_CAL

[Kathryn41 3,205]

Wow, that is a lot of geography the two of you cover . Where do the two of you intend to live? That may help in making a decision.

If the two of you plan to continue to live overseas there is no reason to file for any visa at this time. Your fiancee is allowed to get married in the US without a visa as long as she is not intending to stay in the US and apply to adjust status. Whether the border authorities will allow her to enter, is another matter and one you will need to consider. Then, once married and living together overseas you will probably be able to use the DCF option when you wish to return to the US. Whether or not you can pursue that route will depend on what country you are living in at the time and whether the US Consulate there does DCFs.

If you plan to live in the US you have two options. The first is to file for a K-1 visa for her. That would be processed in Vietnam where she is living (if I am wrong about this someone will let me know). Once it is approved she would then enter the US and you would have to get married within 90 days, then file to adjust her status (AOS) for permission to stay in the US and get a green card.

The second option is for her to enter the US as a visitor, get married, then leave the US while you file for an IR-1/CR-1 visa (spousal visa) for her. This too would be processed in the country in which she is living and once granted she would be able to enter the US and would get her green card upon entry. K-3s are kind of a mixture between the two above visas but again she would not be allowed to stay in the US after getting married and you can't apply for it until after you are married. The processing would also take place in the country where she is living.

All that being said, the K-1 visa is probably the fastest route for the two of you to end up married and living in the US. It also has the least paperwork - although you will have more paperwork afterwards that needs to be done. You should read over the guides for the K-1visa because there are restrictions on travel and work until after she files for AOS and includes special applications for permission to travel and to work. As well, for all of these visas you will be required to sponsor your fiance/wife financially and that will include US based income that meets a specific threshold.

One word of caution - it is illegal to enter the US on a visitor's visa with the intention of getting married and remaining in the US to adjust status and get a greencard. It is considered visa fraud and carries very serious consequences (just so you don't start thinking that is a viable option ).

Edited July 28, 2009 by Kathryn41

[OHP_CAL 0]

Thanks Kathryn41, you don't want to know how many days and countries I have to cover when I depart Baghdad to see my fiance in Vietnam.

For the future of our children we intend to live in the USA. We don't have any children yet, but within two years or so we would like to start a small family; this include gestation period.

I really like your 2nd option. If I understand it correctly she can enter the US as a visitor, we get married, then she'll head back to Vietnam, I will head back to Baghdad. While in Baghdad I can file for an IR-1/CR-1 visa for her. When we decide to move back to the US in about 2 years she should be able to get her green card?

Thank you very much Kathryn41

James

[JimVaPhuong 4,863]

Thanks Kathryn41, you don't want to know how many days and countries I have to cover when I depart Baghdad to see my fiance in Vietnam.

For the future of our children we intend to live in the USA. We don't have any children yet, but within two years or so we would like to start a small family; this include gestation period.

I really like your 2nd option. If I understand it correctly she can enter the US as a visitor, we get married, then she'll head back to Vietnam, I will head back to Baghdad. While in Baghdad I can file for an IR-1/CR-1 visa for her. When we decide to move back to the US in about 2 years she should be able to get her green card?

Thank you very much Kathryn41

James

I sure hope the CO's in HCM treat Canadians better than they treat Vietnamese citizens. Otherwise, your future wife is in for a rough ride. HCM is a tough consulate, and a fair percentage of CR1's for Vietnamese wives are denied.

In order to file for the CR1 you must have a domicile in the US. This is required for the I-864 affidavit of support. If you don't have a home in the US then you might need to use the address of a relative.

Also, the CR1 visa is valid for only 6 months from the date it's issued. Once your wife enters the US she'll get a green card - two year conditional if you've been married less than two years when she enters, or 10 year unconditional if you've been married two years or more when she enters. However, she MUST enter the US with the visa before it expires. You have very little control over how long it will take to get the visa, and the clock starts ticking as soon as the visa is issued, which may not coincide with your plans. There are some things you can do to try to push the visa issuance out a little further. For example, HCM will allow you to reschedule the interview one time. They'll rotate her file back to the end of the list, which generally adds about 2 more months. On the other hand, there's nothing you can do to accelerate it.

If absolutely necessary, she might need to come to the US in order to use the visa before it expires and get her green card before returning to Vietnam. As long as she returns to the US within a year then she shouldn't need a reentry permit. If she needs to be gone between 1 and 2 years then she must apply for and get a reentry permit before leaving or she'll be giving up her residency, and she won't be able to get back into the US. She absolutely MUST be in the US in the 90 day window before her 2 year conditional green card expires in order to file for removal of conditions.

Stay safe over there, James!

[OHP_CAL 0]

thanks Jim ... things are always changing over here. btw do u speak vietnamese as i see that your display name is Jim And Phuong

From what I've heard the CO's treat everyone alike, by that i mean like a criminal!! It's a shame!

My domicile is Virginia. The great old common wealth of virginia.

what is a two year conditional, or 10 year unconditional?

Our plan for now is to head back to the states on Valentine's Day next year and wed on my 2nd R&R. She'll return to Vietnam and I'll head back to Baghdad. I'll stay in Baghdad for another 2 years. For now we don't have any plans to leave the States once we start a family. That's at least the plan for now. You are right about the time as well. Once the visa is issue I have to plan my exist strategy fast ...

they don't really make it very easy for everyone do they

[JimVaPhuong 4,863]

thanks Jim ... things are always changing over here. btw do u speak vietnamese as i see that your display name is Jim And Phuong

From what I've heard the CO's treat everyone alike, by that i mean like a criminal!! It's a shame!

My domicile is Virginia. The great old common wealth of virginia.

what is a two year conditional, or 10 year unconditional?

Our plan for now is to head back to the states on Valentine's Day next year and wed on my 2nd R&R. She'll return to Vietnam and I'll head back to Baghdad. I'll stay in Baghdad for another 2 years. For now we don't have any plans to leave the States once we start a family. That's at least the plan for now. You are right about the time as well. Once the visa is issue I have to plan my exist strategy fast ...

they don't really make it very easy for everyone do they

I've been trying to learn Vietnamese, but the progress has been slow, mainly because it's difficult to find time for it.

If she's going to get the same treatment from the consulate in HCM that a Vietnamese spouse would get, then you should spend some time in the South Asia and Pacific sub-forum here so you can learn what to expect. The consulate in HCM does, in fact, treat every visa applicant like a criminal. The sad truth is that a significant number of them actually are trying to scam the system for a visa. Vietnam is one of the highest visa fraud countries in the world. This isn't because the Vietnamese people are fundamentally dishonest - they are not. It's because the US has previously bent over backwards to accommodate Vietnamese migrating to the US, which has resulted in a lot of Vietnamese families being divided between the two countries. The Vietnamese place a very high priority on family, and they'll happily bend the US immigration laws in order to reunite. Another factor is that they see laws as being more or less suggestions, since most laws in Vietnam can be overcome with a little bribe.

Your wife's green card will be conditional if she enters the US before you've been married for two years. The differences between them are that a conditional green card is valid for 2 years, while an unconditional card is valid for 10 years, and a conditional card has a 'condition' - that she remain married to you until she applies for an unconditional green card in the 90 days before the conditional card expires. The intention is to cut down on immigration fraud by marriage, but it hasn't really had that effect. There are ways to remove conditions and get a 10 year green card without remaining married. For example, in case of divorce or domestic abuse they only have to prove they entered into the marriage in good faith, and the ways they prove this are largely procedural, like getting joint bank accounts and bills in both names. Someone intent on getting a green card through a sham marriage can still do so with relative ease, though in most cases the US citizen spouse is unaware they're being played.

You should be aware that if she tells the Customs and Border Patrol officer at the point of entry that she intends to marry in the US then they might turn her around and put her back on a plane. Technically, if she marries in the US then she can apply for her green card and remain in the US while she waits for it. This is the "fast track" to immigration by marriage. However, it's illegal to enter the US on a non-immigrant visa or visa waiver with the intention of immigrating. The marriage and subsequent application for the green card almost have to happen 'by accident' in order to be legal while here on a non-immigrant visa. If the CBP officers believes she might apply for a green card after the marriage and remain in the US then they won't let her into the US. You don't want to lie to the CBP officers, but if they find out about the upcoming marriage then she'll need to prove beyond any doubt that she'll leave before applying for a green card.

[pushbrk 12,761]

Thanks Kathryn41, you don't want to know how many days and countries I have to cover when I depart Baghdad to see my fiance in Vietnam.

For the future of our children we intend to live in the USA. We don't have any children yet, but within two years or so we would like to start a small family; this include gestation period.

I really like your 2nd option. If I understand it correctly she can enter the US as a visitor, we get married, then she'll head back to Vietnam, I will head back to Baghdad. While in Baghdad I can file for an IR-1/CR-1 visa for her. When we decide to move back to the US in about 2 years she should be able to get her green card?

Thank you very much Kathryn41

James

I sure hope the CO's in HCM treat Canadians better than they treat Vietnamese citizens. Otherwise, your future wife is in for a rough ride. HCM is a tough consulate, and a fair percentage of CR1's for Vietnamese wives are denied.

In order to file for the CR1 you must have a domicile in the US. This is required for the I-864 affidavit of support. If you don't have a home in the US then you might need to use the address of a relative.

Also, the CR1 visa is valid for only 6 months from the date it's issued. Once your wife enters the US she'll get a green card - two year conditional if you've been married less than two years when she enters, or 10 year unconditional if you've been married two years or more when she enters. However, she MUST enter the US with the visa before it expires. You have very little control over how long it will take to get the visa, and the clock starts ticking as soon as the visa is issued, which may not coincide with your plans. There are some things you can do to try to push the visa issuance out a little further. For example, HCM will allow you to reschedule the interview one time. They'll rotate her file back to the end of the list, which generally adds about 2 more months. On the other hand, there's nothing you can do to accelerate it.

If absolutely necessary, she might need to come to the US in order to use the visa before it expires and get her green card before returning to Vietnam. As long as she returns to the US within a year then she shouldn't need a reentry permit. If she needs to be gone between 1 and 2 years then she must apply for and get a reentry permit before leaving or she'll be giving up her residency, and she won't be able to get back into the US. She absolutely MUST be in the US in the 90 day window before her 2 year conditional green card expires in order to file for removal of conditions.

Stay safe over there, James!

Slowing down a CR1 or IR1 process is easy. You just drag your feet at the NVC stage. They'll hold onto the case for up to a year. I'd file as soon after the marriage as practical and get the petition approved. Then you can simply take your time at the NVC stage. (See the guides for what happens at NVC for an immigrant visa.)