When should I file I-130?

[kattaway 1]

So we set our wedding date for June 2, 2012. I found out tonight that Gesi's current work contract will end April 27, 2012. The new contract will start sometime in August 2012. The good news is he will have LOTS of free time to spend with me!!!! So, my question is, being that we are getting married in June and he isn't due back to work until August, can he stay until time to go back? The I-94 is generally good for 6 months if I remember correctly so he wouldn't be overstaying. And if so, should I wait to file the I-130 until AFTER he leaves? Can I file it while he is still here in the US so we can get it submitted ASAP to start the process? I know there are laws about intent to stay but he has every intention on going back to finish this last contract in Aug 2012, he will put his notice in once we know more about our process and when he will hopefully be coming to stay for good. But until, he will continue working as usual. I just want to be clear on the rules. I want to file as soon as we are married, but I would love the time to be with him too since that is something we do not get a lot of.

Any advice would be much appreciated!!

[Oksana & Max 94]

As long as he will go back, and wait for CR-1 visa in his country. It will be totally fine, and will not count against you. There is nothing wrong in getting married within US, as long as beneficiary doesn't try to AOS within and will wait for proper procedures in his country of residence.

So yes you can file I-130 while he is here.

Edited December 30, 2011 by Oksana & Max

[pushbrk 12,569]

So we set our wedding date for June 2, 2012. I found out tonight that Gesi's current work contract will end April 27, 2012. The new contract will start sometime in August 2012. The good news is he will have LOTS of free time to spend with me!!!! So, my question is, being that we are getting married in June and he isn't due back to work until August, can he stay until time to go back? The I-94 is generally good for 6 months if I remember correctly so he wouldn't be overstaying. And if so, should I wait to file the I-130 until AFTER he leaves? Can I file it while he is still here in the US so we can get it submitted ASAP to start the process? I know there are laws about intent to stay but he has every intention on going back to finish this last contract in Aug 2012, he will put his notice in once we know more about our process and when he will hopefully be coming to stay for good. But until, he will continue working as usual. I just want to be clear on the rules. I want to file as soon as we are married, but I would love the time to be with him too since that is something we do not get a lot of.

Any advice would be much appreciated!!

It's a little hard to follow, who is who and where they are but I think Gesi is the foreigner, currently in the USA. If so, he doesn't need to leave the USA at all or pursue any visa. He can simply adjust status from his current work visa. This would actually require him to STAY in the USA after the marriage. Please clarify the circumstances.

[kattaway 1]

It's a little hard to follow, who is who and where they are but I think Gesi is the foreigner, currently in the USA. If so, he doesn't need to leave the USA at all or pursue any visa. He can simply adjust status from his current work visa. This would actually require him to STAY in the USA after the marriage. Please clarify the circumstances.

I am sorry for any confusion. I am the petitioner, USC. Gesi is a Haitian citizen, but working in Turks & Caicos on work visa and does contractual work so it's off and on (more on than off) and he has been doing that for 13 yrs in the T&C, 8 yrs with his current employer. He is not in the USA. He has a residence in T&C, lives there but is not a "belonger" there so his citizenship is still with Haiti.

Upon trying to find more on the subject last night, I think I read that if I file the I-130 petition, he should not leave the US, but that would make the case look like fraud and we certainly don't want to do anything that would jeopardize our case so I just want to be clear if I can file the petition while he is still here and him go back 2 months after to finish his (hopefully) last contract before coming back to the US for good.

[pushbrk 12,569]

I am sorry for any confusion. I am the petitioner, USC. Gesi is a Haitian citizen, but working in Turks & Caicos on work visa and does contractual work so it's off and on (more on than off) and he has been doing that for 13 yrs in the T&C, 8 yrs with his current employer. He is not in the USA. He has a residence in T&C, lives there but is not a "belonger" there so his citizenship is still with Haiti.

Upon trying to find more on the subject last night, I think I read that if I file the I-130 petition, he should not leave the US, but that would make the case look like fraud and we certainly don't want to do anything that would jeopardize our case so I just want to be clear if I can file the petition while he is still here and him go back 2 months after to finish his (hopefully) last contract before coming back to the US for good.

If he's not IN the USA now, and doesn't already have a visa to VISIT the USA, then adjusting status is not an option anyway. Neither is obtaining a visa now, to visit. People with immigrant intent cannot be issued visitor visas.

What is it that makes you think he can come to the USA without a spouse visa, if he isn't already here? Does he already have a B1B2 visa?

[kattaway 1]

If he's not IN the USA now, and doesn't already have a visa to VISIT the USA, then adjusting status is not an option anyway. Neither is obtaining a visa now, to visit. People with immigrant intent cannot be issued visitor visas.

What is it that makes you think he can come to the USA without a spouse visa, if he isn't already here? Does he already have a B1B2 visa?

Yes, he has a tourist visa already and has visited several times.

[pushbrk 12,569]

Yes, he has a tourist visa already and has visited several times.

Then you have some options. However, if he's going back for his next contract period, adjusting status is out of the question. There wouldn't be time anyway. So, yes, he can stay until it's time to go back. Once married, you can file the petition while he's still here if you want. I usually advise getting everything ready and then if it's close to the time he'll leave anyway, wait until the day after he leaves.

While there's nothing at all wrong with filing while he's here, the I-130 asks that question. When you answer yes, sometime the silly govt. people misinterpret the answer to that question and fail to send the approved petition to NVC to continue the process.

Edited December 30, 2011 by pushbrk

[kattaway 1]

Then you have some options. However, if he's going back for his next contract period, adjusting status is out of the question. There wouldn't be time anyway. So, yes, he can stay until it's time to go back. Once married, you can file the petition while he's still here if you want. I usually advise getting everything ready and then if it's close to the time he'll leave anyway, wait until the day after he leaves.

While there's nothing at all wrong with filing while he's here, the I-130 asks that question. When you answer yes, sometime the silly govt. people misinterpret the answer to that question and fail to send the approved petition to NVC to continue the process.

So if he didn't go back to do his last contract and stayed, we filed for AOS, wouldn't that be visa fraud? Cause he came to the US to get married and stayed? Cause if that IS an option, I would definitely push for that! lol

[pushbrk 12,569]

So if he didn't go back to do his last contract and stayed, we filed for AOS, wouldn't that be visa fraud? Cause he came to the US to get married and stayed? Cause if that IS an option, I would definitely push for that! lol

No, it's not visa fraud to change your mind after entry. Entry, of course, is another matter. If he tells them the purpose of his visit is to marry his fiancee, he's not likely to be admitted. If, on the other hand, he give a truthful generic answer for the purpose of visit, no problem. He's no more obligated to mention a wedding as an itinerary item than to mention he might visit a public library or go to a ballgame, etc. Once here, if you marry, he can adjust status but that entails staying in the USA without work authorization until the AOS is complete.

Never give an untruthful answer to any direct question when entering any country.

Edited December 30, 2011 by pushbrk

[kattaway 1]

No, it's not visa fraud to change your mind after entry. Entry, of course, is another matter. If he tells them the purpose of his visit is to marry his fiancee, he's not likely to be admitted. If, on the other hand, he give a truthful generic answer for the purpose of visit, no problem. He's no more obligated to mention a wedding as an itinerary item than to mention he might visit a public library or go to a ballgame, etc. Once here, if you marry, he can adjust status but that entails staying in the USA without work authorization until the AOS is complete.

Never give an untruthful answer to any direct question when entering any country.

Thank you so much for the info. The reason for his visit in May/June was originally to attend my sons graduation in Texas and we figured since all of the family would be there, we would get married. That was the original intention. Maybe we will re-evaluate everything with this info