CR-1 after K-3

[turbo2253 0]

We filed for K-3 in Nov. 06, and we received a K-3 on 8/8/07. Our I-130 was held for AOS in the USA, so we filed the I-824 to have the I-130 continue. It took 6 months to get the I-824 approved, and we received an approved I-824 and a re-approved I-130 on Oct. 11, 2007. The I-130 said that it would be sent to the NVC, but that never happened.

We have called USCIS and asked to have the I-130 sent to the NVC, they tell us it was sent, the NVC says it was never sent and never received. We made an info pass, and they told us that our I-130 was waiting at the National Information Center for us to file AOS, and that we would have to contact the CSC to get them to send the I-130. After several calls to the CSC, we got a supervisior to help us, 60 days later we recieved a notice saying the our I-130 was on the way to the NVC. Again we had to wait 60 days, and we called the NVC, "no record of our case". We called USCIS, and a supervisor told us that, "it was against DOS policy to send a K-3 back to the home country for a CR-1 interview", and that we should file for AOS in the USA.

We contacted the Ombudsman Office, and we have a DOS Customer Service Rep. helping us now, but we would like to know, Has anyone from any country returned to their home country for a CR-1 interview after receiving a K-3 and entering the US? Thanks, Mike & Yizhen

[YuAndDan 153]

Very strange, the "Life act" visa was developed at a time when immigrant visas were taking much longer than K-1 visas giving the spousal visa applicants the option to waitout the spousal visa process in the states, the K-3 is multi-entry to allow travel wile waiting out the spousal visa. However USCIS has a slightly different interpretation that stipulates that K-3 needs to adjust status once K-3 is used to enter the USA.

USCIS shows this about K-3/4 (Life Act Visas)

Third, the alien must be seeking to enter the United States to wait the “availability of an immigrant visa.”

In addition, the Service interprets the word “availability” in the phrase “awaiting the approval of such petition and the availability to the applicant of an immigrant visa” in the new section 101(a)(15)(K)(ii) of the Act to mean the approval of the adjustment of status application. This appears to comport with the Congressional intent even though the concept of visa “availability” in other contexts (sections 202, 203, and 245 of the Act) relates to per country and preference limitations. Read literally, the language in (K)(ii) could mean that those aliens with approved Form I-130 petitions on their behalf would not be eligible for K-3/K-4 status. This is because those aliens would not need to await the approval of the petition and because no visa number is needed by an immediate relative of a U.S. citizen. A visa is available as soon as the Form I-130 is approved. However, since the new section 214(p)(3) of the Act provides that the (K)(ii) or (K)(iii) nonimmigrant status shall terminate 30 days after the denial of the Form I-130, the application for an immigrant visa, or the adjustment of status application, the term “availability of an immigrant visa,” appears to have a different meaning than the same term in sections 202, 203, and 245 of the Act. The Service believes that Congress did not intend to create a nonimmigrant classification for spouses and children of U.S. citizens that is based on the filing of a Form I-130 petition, only to see that classification cut off to them part of the way through the immigration process. However, the Service also believes that Congress did not intend for this K-3/K-4 status to be of indefinite duration and that status holders must be taking steps to ultimately immigrate.

http://www.uscis.gov/propub/ProPubVAP.jsp?...5a9f46924858b06

[YuAndDan 153]

I would be suing for a refund of the I-824 FEE.

[turbo2253 0]

Dan they told me that my I-824 was processed within the normal timeframe and there would not be any possibility for a refund.

I am really looking for anyone's experience in returning to China or any Country for a CR-1 interview after receiving a K-3 and entering the US. It is much cheaper, and we will be traveling to China to visit the family anyhow. I did list GUZ as thge place for interview on the I-130. I did not see or interpret the USCIS info as no possibility of returning to the home country for the interview.

The one person who said it was not policy, called me ignorant for wanting to return to China for the interview, "Why would you want to go back to China?". I think they did not want to do the work to get my petition sent to the NVC.

I was caught in the change from sending both petitions to the NVC, to holding the I-130. Now if you want the I-130 also sent, you must include a letter with the I-130 stating that you want the I-130 also sent to the NVC.

[YuAndDan 153]

Dan they told me that my I-824 was processed within the normal timeframe and there would not be any possibility for a refund.

I am really looking for anyone's experience in returning to China or any Country for a CR-1 interview after receiving a K-3 and entering the US. It is much cheaper, and we will be traveling to China to visit the family anyhow. I did list GUZ as thge place for interview on the I-130. I did not see or interpret the USCIS info as no possibility of returning to the home country for the interview.

The one person who said it was not policy, called me ignorant for wanting to return to China for the interview, "Why would you want to go back to China?". I think they did not want to do the work to get my petition sent to the NVC.

I was caught in the change from sending both petitions to the NVC, to holding the I-130. Now if you want the I-130 also sent, you must include a letter with the I-130 stating that you want the I-130 also sent to the NVC.

Actually they stopped that practice sometime last winter, and returned to sending BOTH I-129F and I-130 on to NVC, and seem to approve them both on the same day for most K-3 petitioners, K-3 passes through NVC, the CR-1 gets the normal I-864/Visa fee process, and lately seem to arrive a few months later at the consulate, in the case of GUZ the CR-1 has been arriving just before K-3 interviews getting the K-3 dropped.

Unfortunately you got caught up in the I-130 hold issue that USCIS was doing last year.

Only suggestion I would have is to have your congress person get involved, it may result in getting the approved I-130 moved to NVC, or they too may run into USCIS's interpretation of the LIFE act (Awaiting Approved I-130 to "Awaiting approval of I-485 adjustment of status"). If this is the case then you may have to bite the bullet and file the I-485 and pay the $1010 FEE, the only consolation is probably by the time AOS gets approved you will be beyond 2 years of marriage and the resulting green-card will be the UN-Conditional type. Only other pain is AOS will require a FULL I-693 Medical.

[turbo2253 0]

Tommorow is our 2 year anniversary!, we have asked the ombudsman to expidite our case because it is almost 2 years since we filed the I-130, they said they might be able to expidite, if the USCIS will send the I-130 to the NVC. Mike & Yizhen

[Dakine 26]

I'd get your senator or congressman involved. They can normally get things moving.

[turbo2253 0]

Hello, we are still hoping to hear from someone who has returned to the beneficiary's home country for a CR-1 interview after K-3. Thanks, Mike & Yizhen

[turbo2253 0]

Hello, today I received a phone call and an e-mail from the DHS Ombudsman's Customer Service Rep. that has been handling our case. Persitence has finally paid off! Our I-130 was sent to the NVC via DHL today. We will return to GUZ for the IR-1 interview. She said she requested expediting our case because it has been 2 years since filling and more than 20 months since our approval. No promises. Maybe we can return to China for Chinese New Year and the interview, we will stay about 2 months.

My wife has been here for more than 15 months, I have to start all over again getting prepared to dot the I's and cross the T's. I will post our experience through the interview, Thanks for your support and help in the past, Mike & Yizhen