Complicated Immigration Help Needed!

[jbenson1 0]

Hello everyone,

I was very happy to come across this site. It could not have come at a better time! I was trying to search what I have here, but I couldnt find it, so hopefully this wont be the 400th time youve answered these series of questions. Anyways, here is my basic scenario (Ill try to keep it brief). I am currently engaged to a woman from Peru. We intend to marry in June. She entered the U.S. in 2006 and was given a notice to appear under section 240 because she was found crossing the border. She failed to appear. She has a son with another father and the son is an american citizen. We met and just fell head over heels for each other, she is 35 and I am 22. After staying for a few months in the U.S. (she had been here for 3 years) we decided to move to peru (which everyone says was a mistake cause she can only come back in 10 years). After we lived there for almost 2 months I had to return to the U.S. I have asthma and I visited the hospital so many times that we couldnt afford it anymore to keep me there. Anyways, I guess here are my big questions, should I apply for a fiance visa or should I wait until we marry in Peru in June and then file our k-3? I will post more questions in the 601 section because thats the really confusing part. I know the age difference is not a strength. I cant find any information on a k-1 vs. a k-3. My concern is not speed. She will always be waiting for me and I will always be waiting for her, though the distance breaks my heart, when you love someone you would wait for the day every day until the day you die to be with that person. My concern is the success rate. Am I more likely to have her here with me if I do a fiance visa or wait till we are married? I know its a complicated scenario, as with all cases here it seems, but I wonder which is the best route. I want to marry her on my next visit to Peru just because I want her to be my wife, to have everyone witness and know that this woman is the reason I wake up everyday, and I want her to carry my last name and honor my family with her presence. Thank you all for reading and I hope I didnt bug you too much on my first post! Thanks again!

Justin

[pushbrk 12,824]

Hello everyone,

I was very happy to come across this site. It could not have come at a better time! I was trying to search what I have here, but I couldnt find it, so hopefully this wont be the 400th time youve answered these series of questions. Anyways, here is my basic scenario (Ill try to keep it brief). I am currently engaged to a woman from Peru. We intend to marry in June. She entered the U.S. in 2006 and was given a notice to appear under section 240 because she was found crossing the border. She failed to appear. She has a son with another father and the son is an american citizen. We met and just fell head over heels for each other, she is 35 and I am 22. After staying for a few months in the U.S. (she had been here for 3 years) we decided to move to peru (which everyone says was a mistake cause she can only come back in 10 years). After we lived there for almost 2 months I had to return to the U.S. I have asthma and I visited the hospital so many times that we couldnt afford it anymore to keep me there. Anyways, I guess here are my big questions, should I apply for a fiance visa or should I wait until we marry in Peru in June and then file our k-3? I will post more questions in the 601 section because thats the really confusing part. I know the age difference is not a strength. I cant find any information on a k-1 vs. a k-3. My concern is not speed. She will always be waiting for me and I will always be waiting for her, though the distance breaks my heart, when you love someone you would wait for the day every day until the day you die to be with that person. My concern is the success rate. Am I more likely to have her here with me if I do a fiance visa or wait till we are married? I know its a complicated scenario, as with all cases here it seems, but I wonder which is the best route. I want to marry her on my next visit to Peru just because I want her to be my wife, to have everyone witness and know that this woman is the reason I wake up everyday, and I want her to carry my last name and honor my family with her presence. Thank you all for reading and I hope I didnt bug you too much on my first post! Thanks again!

Justin

First, you don't apply for a visa. You're a US Citizen. Whichever path you choose begins with you filing a petition. which after approval allows your loved one to apply for a visa. If you want to marry in June, then a fiancee visa is out of the question as you will have a spouse, not a fiancee by the time any visa is issued. K3 is dead. CR1 would be the visa path that would require a waiver to be successful. The waiver route is a hard road because of the severe hardship standard to be met.

[jbenson1 0]

First, you don't apply for a visa. You're a US Citizen. Whichever path you choose begins with you filing a petition. which after approval allows your loved one to apply for a visa. If you want to marry in June, then a fiancee visa is out of the question as you will have a spouse, not a fiancee by the time any visa is issued. K3 is dead. CR1 would be the visa path that would require a waiver to be successful. The waiver route is a hard road because of the severe hardship standard to be met.

Thank you. I suppose its not a question of if we want to marry in June, but rather which route would be best for such a complicated process? We would marry tomorrow if I could be down there and do it, but we also know that as bad as we want to call each other husband and wife, we if meant we have a higher chance of being together, we would wait. As everyone here knows, when you really love someone, its really hard to be 3,000 miles away. Sorry for my K3 remark, it looks like I am coming into this petition process in a time of change, hopefully thats a good thing! Can you apply for a waiver if you file a fiance petition? I suppose that may be subject for a different section. Thank you again for the reply!

[pushbrk 12,824]

Thank you. I suppose its not a question of if we want to marry in June, but rather which route would be best for such a complicated process? We would marry tomorrow if I could be down there and do it, but we also know that as bad as we want to call each other husband and wife, we if meant we have a higher chance of being together, we would wait. As everyone here knows, when you really love someone, its really hard to be 3,000 miles away. Sorry for my K3 remark, it looks like I am coming into this petition process in a time of change, hopefully thats a good thing! Can you apply for a waiver if you file a fiance petition? I suppose that may be subject for a different section. Thank you again for the reply!

There's nothing wrong with your K3 remark but it DOES indicate you did no reading in this forum before posting. Yes, you can apply for a waiver in a K1 case but applying and obtaining are not the same thing. Unless you can show SEVERE hardship, not just normal hardship a waiver is unlikely to be granted. IMO, you have a better chance of waiver success with a spouse than a fiancee but I expect opinions will vary on that. The waivers forum is the place to discuss that. Please read and use the search function in that forum before asking your question though.

[momof1 205]

Your biggest problem at this moment is not the hardship waiver. Your biggest problem is whether or not they will actually allow you to file a hardship waiver. Since your wife was given a notice to appear and didn't attend, it is very likely that she will be found inadmissible bc of this. This single infraction will not allow her to file a waiver until she has been outside of the US for 5 years. They will likely accept the waiver and your money though, but not until you have waited a substantial amount of time will you be told about this. I've seen it too many times and it is a ban that cannot be waived.

I suggest you head over to www.immigrate2us.net People are much more friendly and knowldegeable about the waiver process. Of course, this is the best place to find out about the intial K3 though.

I've seen 3 waiver denials come out of Lima in the last week. I wouldn't say that it is necessarily a difficult consulate to get a waiver of inadmissibility approved. It totally depends on the details of your case...how did your wife enter the US(illegally, fraudulently or a visa overstay), her criminal record(or lack thereof) AND the harship you would face were she not allowed to come back.

I disagree that harship has to be "SEVERE" as another member mentioned. I've seen very mediocre waivers approved. This is especially true in Mexico. How difficult it will be depends on the details of your case. There is no difference in approval rates for fiances vs spouses. The only time this issue comes into play is if a waiver for a fiance visa is denied and you try to file again. The officer will then start to suspect why you aren't married yet. Other than that, it doesn't make a difference.

Edited February 21, 2010 by momof1

[SunDrop 59]

I disagree that harship has to be "SEVERE" as another member mentioned. I've seen very mediocre waivers approved. This is especially true in Mexico. How difficult it will be depends on the details of your case.

I'm pretty much completely ignorant of hardship waivers, but wondered whether the fact that the climate in Peru exacerbates his asthma and makes it potentially life-threatening (which bad asthma often is) would be grounds for a hardship waiver on the basis that they cannot live together in her country?

[pushbrk 12,824]

I'm pretty much completely ignorant of hardship waivers, but wondered whether the fact that the climate in Peru exacerbates his asthma and makes it potentially life-threatening (which bad asthma often is) would be grounds for a hardship waiver on the basis that they cannot live together in her country?

The hardship is generally not sufficient if it only prevents the USC from living in the beneficiary's country. There must actually be a severe hardship to the USC, if the beneficiary is not allowed into the USA.

This whole thread should probably be moved to the waivers forum.

[daboyz 36]

First, you don't apply for a visa. You're a US Citizen. Whichever path you choose begins with you filing a petition. which after approval allows your loved one to apply for a visa. If you want to marry in June, then a fiancee visa is out of the question as you will have a spouse, not a fiancee by the time any visa is issued. K3 is dead. CR1 would be the visa path that would require a waiver to be successful. The waiver route is a hard road because of the severe hardship standard to be met.

Laugh. You love beating that petition vs. application drum.

[momof1 205]

It is true that one must prove why it would be an extreme hardship to move to the spouse's country AND why it would be an extreme hardship if forced to stay in the US without them.

Having said that, proving extreme hardship is done in many ways. It does not have to be a severe life or death situation, but that totally depends on what the inadmissibility is. If a person is a simple visa overstay or a single illegal entry the hardship standard is much less compared to someone with a CIMT or fraudulent entry. In theory the harship standard is the same for everyone, but in practice that just isn't true.

[jbenson1 0]

Thank you all for the good information! That waiver is going to be the death of my fiance returning here. I can feel it already. Her story is very complicated. I will be as brief as possible. She was married to an american before, and she didnt really want citizenship her. Her father tricker her into getting smuggled into the country. He did this so he could sell off all of her assets in Peru while she was gone. She thought she was going on a day trip to northern mexico (on a vacation in mexico with her father and sister) But her father put them in a "taxi" which dropped them off on U.S. territory. The driver forced them out of the car, and they were uncertain as to where they were. Border control found them, and brought them in. Because they were both educated and wealthy in Peru, and my fiance was married to a texas man (where they ended up) they were given a notice to appear and released into Texas. When she was in Texas about a day before her meeting to appear, she found out she owed the Peruvian government tax money for the business and car that her father had sold without her consent. She also found out her husband was cheating on her. She then moved to New York where her sister had moved hoping they could figure out a plan to pay the money to the Peruvian government and get out, but they were not successful. Thats when the stay began, she stayed for a little more than 3 years and we left on our own accord in November 2009. She has no criminal record, other than I suppose the warrant for failure to appear, which we have to find out if the warrant was issued (probably was.) I guess here is where I would ask the administrator to move this topic to the Waiver section, because now we have surpassed the K-3/CR1 page. The hardship, I am not terribly concerned about. I know its hard to prove it, but I suppose my question is do I even have a decent shot at this? Its all pretty overwhelming and it is a day to day process and alot of waiting, and I am going to do everything in my power to make it happen. I guess its opinion time, what would people suggest, applying for a fiance visa now, and waiting to see the outcome before I get married, and after the first fiance visa application gets denied, should I then get married and apply for a CR-1? I know its ultimately my preference, but you all have a very good knowledge of this, and your opinion is worth way more than mine because I am completely lost. I read through the forums and every case is so similar but so different and everyone gets similar but different advice, I guess here is my cry for help! Thank you all for reading and responding, Id literally be up the stream without a paddle if it werent for this forum.

[SunDrop 59]

Moved from K3 to Waivers as per OP's request.

[Darnell 8,478]

You might wonder if you are being used, to come into the USA.

I'd question it, because of the AGE GAP between you. Solely.

Whatever ya do, you won't know 'whats what', until after you file.

Which ever petition you file, front-load it, to cover all red flags plus the 'regular' evidence yer supposed to submit.

I remember when I was 22 - them 'older ladies' were always a boon, for me (no, not a boondoggle).

But I digress.

File Something - see wot happens - that's my best advice for now.

[jbenson1 0]

You might wonder if you are being used, to come into the USA.

I'd question it, because of the AGE GAP between you. Solely.

The age gap throws up red flags right away. Older women have always been my thing ever since one of my longer term girlfriends I had for 8 months, I was 16 and she was 29, from that day forward I have only had one or two girlfriends within 5 years of my age. My fiance is a gorgeous woman and is very conservative, she has had multiple opportunities to get her citizenship here, but she never wanted it. She has wanted to live in Italy for a long time and own a farm. Unfortunately we have no way of becoming italian citizens, and the doctors down in Peru advised me to return to the U.S. after we moved down there together. My asthma was very bad, and after being hospitalized the general consensus was that I needed to return to a less humid and cleaner air quality environment. Otherwise we would still be living in Peru together waiting for our chance to get work Visas in Europe. I love this country, but the difficulty I know I will face with this process puts me in fear that I will begin to hate the country for denying me my chance at happiness. If she cant come, then we will go somewhere else. But I will fight till the end to get her here.

[Boiler 45,403]

Sounds to me like you are not being told the truth, the whole truth and nothing but the truth.

Go with the K1 Fiancee, leaves your options open, going to take a couple of years no matter what you do.

The waiver is just a question of English Comprehension. You have plenty of time to research it, if you do not have those skills employ a lawyer who does, see www.immigrate2us.net

Edited February 21, 2010 by Boiler

[pushbrk 12,824]

It is true that one must prove why it would be an extreme hardship to move to the spouse's country AND why it would be an extreme hardship if forced to stay in the US without them.

Having said that, proving extreme hardship is done in many ways. It does not have to be a severe life or death situation, but that totally depends on what the inadmissibility is. If a person is a simple visa overstay or a single illegal entry the hardship standard is much less compared to someone with a CIMT or fraudulent entry. In theory the harship standard is the same for everyone, but in practice that just isn't true.

Nobody has to show hardship if "forced to stay in the US without them". The hardship must result from the foreigner not coming to the USA. It's NOT the same thing. Who is going to force a US Citizen to stay in the USA? Yes, I realize passports can be held or revoked under certain circumstances like failure to pay child support but that's generally temporary, and NOT a hardship justifying a waiver.

Anytime a "standard" is applied by subjective humans, the outcomes will appear to be inconsistent to some other subjective humans and even to objective ones. It's "human".