I-130 and K3

[fraugreen 0]

hi!

i' m a german citizen, came to the us per visa waiver program and got married to my husband (american citizen) in june, before the 90 days of the vwp were over. after our wedding we asked a lawyer who told us that we can file for I-130 without me having to go back to germany. so i stayed in the us until we had the money for the petition. 2 weeks ago we went to another immigration lawyer who told us that i actually have to go back to germany due to the vwp, and that i have to leave within 180 days after my tourist visa had expired...othervise there would be restrictions and i wouldn' t be able to return to the us for 3 years. so we immediately booked a flight to germany in the beginning of december. our plan is to file for I-130 from germany and wait for the approval there...now i read that he has to be in the us in person when he files for the petition. so now my first question: is that true?

our biggest problem is money...so is it possible to file for I-130 without applying for K3? if so, how long will the process take?

if it takes long...can i enter the us with a vwp during the process to visit my husband?

and is there any possibility not to get seperated during the whole process? like visiting each other 3 months each with tourist visas? we want to apply for his residency in germany...but doesn' t he have to be in the us for filing for everything, or is there a way to do that from germany?

sorry we are a little confused...the most important thing for us is being together and not getting seperated for an extended time.

[Dakine 26]

hi!

i' m a german citizen, came to the us per visa waiver program and got married to my husband (american citizen) in june, before the 90 days of the vwp were over. after our wedding we asked a lawyer who told us that we can file for I-130 without me having to go back to germany. so i stayed in the us until we had the money for the petition. 2 weeks ago we went to another immigration lawyer who told us that i actually have to go back to germany due to the vwp, and that i have to leave within 180 days after my tourist visa had expired...othervise there would be restrictions and i wouldn' t be able to return to the us for 3 years. so we immediately booked a flight to germany in the beginning of december. our plan is to file for I-130 from germany and wait for the approval there...now i read that he has to be in the us in person when he files for the petition. so now my first question: is that true?

our biggest problem is money...so is it possible to file for I-130 without applying for K3? if so, how long will the process take?

if it takes long...can i enter the us with a vwp during the process to visit my husband?

and is there any possibility not to get seperated during the whole process? like visiting each other 3 months each with tourist visas? we want to apply for his residency in germany...but doesn' t he have to be in the us for filing for everything, or is there a way to do that from germany?

sorry we are a little confused...the most important thing for us is being together and not getting seperated for an extended time.

I don't know the particulars of your case but it sounds like you can file a I-130 and a I-485 to adjust status without going anywhere.

Don't want to get your hopes up but check into it. Lawyers aren't always right.

Either am I tho.

If so you "owe me and VJ "BIGTIME" Kidding.

Main thing is that you didn't have intentions of marriage when you came to the US. It just happened.

Edited November 26, 2007 by Haole

[Credzba 0]

I don't know if you will be able to stay or not. Before you pack up and fly home, I'd double check too. I hear of many people marrying here in the USA, filing for Adjustment of Status, and even if it spans over their visa period, the immigration people let them stay.

The crucial question is did you come in planning to get married (in which case then you must return home) or did you come in, and THEN decide to get married?

At any rate, you question was do you HAVE to file K3. The answer is no.

I went just I-130 for my wife and daughter. The total time is 1 or 2 months longer, but then you have a green card as soon as you arrive, where the k3 you can not work until you get your AOS processed after you arrive.

To me, the k3 is just not worth the extra money and paper work for 1 month difference in time.

Other people obviously don't think like I do, but certainly you can file only the I-130.

[C and J 1]

As Credzba said, the main question you need to answer is: "When you entered the US using the VWP, did you intend to marry and stay?". And if you did not intend to stay permanently on the entry, can you PROVE that you intended to leave (return ticket, job back in Germany etc etc)? The answer to that will determine whether you can stay in the US and adjust status or have to return to Germany.

Yes, you can apply for the I130 alone. If you have a look at the timelines, it will give you a rough guide to how long the process will take for Germany. I am from the UK and mine will take over 10 months for an I129F, an I130 would take close to a year.

Yes, you can visit your husband using the VWP during the process. HOWEVER (and it is a big however) you must be prepared to show strong ties to Germany should you be asked by the officer at the point of entry. They can, and will, turn you straight around back around and refuse entry if they believe on any visit that you intend to stay permanently. The burden of proof is on you to prove that you will leave at the end of your visit. Being in a VWP country is a positive thing in this journey because, if you were to apply at an embassy for a proper tourist visa, you would likely be denied outright because having a spouse in the US is generally seen to outweigh any evidence that can be shown.

Yes, some of the petitioners on here have spent part of the process outside the US. Some of them seemed to have lawyers handling all the paperwork for them though.

Considering you don't want to be separated for any long period of time... How long does it take to get a residency permit (not sure of the exact term) for Germany? What you could do is apply for your husbands residency, have him live in Germany with you for long enough to meet the Direct Consular Filing criteria (most countries are 6 months, but you would have to check this for Germany), then you can both file directly with the US embassy in Germany and live in Germany together while the paperwork is going through. There are certain criteria that your husband needs to meet to file for you in this way (like maintaining a domicile in the US) but I am not very clued up on the DCF process, so I would suggest you check out that forum to see how it would work for you.

[fraugreen 0]

thank you for all this information. i actually didn' t plan to get married to my husband when i entered the us in march...i had a return ticket in june (i kept the ticket)...unfortunately i didn' t have a job in germany by that time. but i just met my husband in february in germany, he invited me to visit him in philadelphia while i' m in the us (i came to the us a friend to play some shows in a band), i did that, and we knew it' s big love so we got married. \

the problem is that when you enter with a vwp, you have to sign this green form with a departure record that says it' s against the law to apply for a change of status while in the us. i think that' s why the lawyer told me that i have to leave.

as soon as we are back in germany we want to file for his residency there, but i' m not really sure how long that takes. because then we would file for I-130 in germany.

i have another question: the lawyer told me that if i leave before 180 days after the vwp expired are over, i can return to the us without restrictions. what exactly does that mean? can i try to go visit my husband after 3 months with a visa waiver (if i' m able to proove that i' ll leave after 90 days) or will they make problems at the point of entry anyway when they see that i already overstayed once? so, if i leave in december, when can i come back to the us with the vwp?

thank you for your help!!!

[pushbrk 12,569]

thank you for all this information. i actually didn' t plan to get married to my husband when i entered the us in march...i had a return ticket in june (i kept the ticket)...unfortunately i didn' t have a job in germany by that time. but i just met my husband in february in germany, he invited me to visit him in philadelphia while i' m in the us (i came to the us a friend to play some shows in a band), i did that, and we knew it' s big love so we got married. \

the problem is that when you enter with a vwp, you have to sign this green form with a departure record that says it' s against the law to apply for a change of status while in the us. i think that' s why the lawyer told me that i have to leave.

as soon as we are back in germany we want to file for his residency there, but i' m not really sure how long that takes. because then we would file for I-130 in germany.

i have another question: the lawyer told me that if i leave before 180 days after the vwp expired are over, i can return to the us without restrictions. what exactly does that mean? can i try to go visit my husband after 3 months with a visa waiver (if i' m able to proove that i' ll leave after 90 days) or will they make problems at the point of entry anyway when they see that i already overstayed once? so, if i leave in december, when can i come back to the us with the vwp?

thank you for your help!!!

He can mail the I-130 to the appropriate USCIS service center from anywhere, even Germany. He would only have to reside in Germany to file directly with the Consulate in Germany. There's actually nothing stopping him from filing the I-130 now. You must not overstay. Your intent matches the criteria for staying and adjusting status but your VWP program terms evidently trump that. No need to delay filing the petition in any event. It would probably be much easier to do it while you're still together in the US.