Change of plans k-1 to k-3

[Cixelsyd 1]

I appreciate everyone's input on the questions I had about the fiance visa... but we won't be needing that anymore.

Instead of waiting until next summer to get married on a K-1 visa, we decided to get married this summer. So it's a whole new ball game with a lot of different questions.

Some back story.

We met last summer while she was working in the U.S.

I visited her in Russia this past winter where we got engaged.

She's coming here again on a J-1 visa to work this summer.

When she applied for the J-1 visa (for this summer) we were planning on getting married on a K-1 visa in the summer of 2010. We talked about it today and realized we would rather not wait.

She hasn't gotten her work visa yet, but she should get it very soon.

No paper work has been sent in.

That whole fraud thing:

Again, the intent for getting the work visa was NOT to come here and get married. Just wanted to spend the summer together.

However, will getting married this summer be considered a visa fraud considering all the other facts?

I don't believe it should be, but I want to make sure.

I'll have more questions to come, but any thoughts or ideas about everything is always appreciated.

[payxibka 10,045]

only the USCIS can say for sure

[Cixelsyd 1]

Still trying to wrap my head around all this and what it entails, but does getting married in the U.S. change anything. Should I be going with the K-3 or is there a different way I should consider?

[reeses16 8]

You would want to consider this carefully. You don't want USCIS to decide that you two were trying to by pass immigration law. If granted, how long will her J1 visa be valid? If you decide to get married while she is on her J1, I would recommend waiting a while. Its definitely suspicious if you two married a week after she entered on a J1.

[mox 298]

I would carefully consider IR1/CR1. Check the guides to see what the major differences are, and also check timelines to see processing times.

[Cixelsyd 1]

I've been trying to do some research on this whole thing. Here's what it seems like. Let me know if I'm wrong.

It seems it's ok to get married in the U.S. as long as you return to your country. Then there's no issue of it being a fraud or not. And you just go through the K-3 process as per usual.

If you get married and then try to remain in the United States (adjust status) without returning home, then you can run into this issue.

Which brings up other questions.

I don't know how long the applying for green card takes. Which could be a problem since she does intend to return home to finish her last year of school. Although there is some lead way since she may not have to return until later in the year instead of the beginning of the first semester. If someone has a general idea of how long the process takes, that would be good.

edit: If the "applying for green card" process is actually the K-3 route then don't shoot me for not knowing. So far it seems like a totally different process.

You would want to consider this carefully. You don't want USCIS to decide that you two were trying to by pass immigration law. If granted, how long will her J1 visa be valid? If you decide to get married while she is on her J1, I would recommend waiting a while. Its definitely suspicious if you two married a week after she entered on a J1.

It will be about mid-way through her stay here anyway.

Again, we're not trying to "work" the system or something like that. I'm just in the process of trying to gather as much information as I can and determine the best course from there.

Edited April 19, 2009 by Cixelsyd

[Dakine 26]

To start CRs are immigrant visas and receive their GC and SS card in the mail shortly after arriving in the US.

No need to go thru the $1010 cost, stress and hassle of doing the AOS.

No need another interview or do biometrics.

Not having a SS card can prevent one doing a lot of things such as get drivers license, joint bank accounts etc.

K3s are nonimmigrant visas and have to go thru AOS. It can take a LONG time to get GC. Can be denied and deported also. Rare but the chance is still there.

If the relationship or petitioner goes belly up before the beneficiary has GC in hand they stand an excellent chance of being deported.

At this time if done properly it only takes about a month longer to do the CR-1 or IR-1.

The CR-1 recipient can almost immediately work, get drivers license, joint bank accounts, and anything else where a GC and SS card are required .

PLus can return home without waiting for AP or GC in case of emergency!

K3 visas have to wait at about 3 months for EAD so they can get a SSN.

Petitoner has to qualify financially at the interview and then a few months later at the AOS. Some petitioners have been getting laid off due to the economy causing more AOS problems.

CR/IR only does so once at NVC.

[Cixelsyd 1]

Are the K-3, CR-1 and IR-1 all used for brining someone to the U.S. or are they the same process for someone who gets married in the U.S. and stays here/adjusts status?

Just trying to understand if there is a different process for bringing someone here vs. someone who is already here.

[payxibka 10,045]

Are the K-3, CR-1 and IR-1 all used for brining someone to the U.S. or are they the same process for someone who gets married in the U.S. and stays here/adjusts status?

Just trying to understand if there is a different process for bringing someone here vs. someone who is already here.

K-3 CR-1 IR-1 are VISAS.... visas are needed to enter a country.... if you are already in a country you do NOT need a visa

[Cixelsyd 1]

K-3 CR-1 IR-1 are VISAS.... visas are needed to enter a country.... if you are already in a country you do NOT need a visa

OMG I am an idiot. You are right, I should have realized they're visas.

[Cixelsyd 1]

Just to add a little bit of an update.

It looks like the process of applying for a green card takes 6 months or so. Thus it's not going to work for our situation and we'll be going the visa route after all. Probably the CR-1/IR-1 route.

[baron555 934]

However, will getting married this summer be considered a visa fraud considering all the other facts?

More for the experienced posters here, if she comes into the US on the J-1 and they get married in the US while on the J-1 and then she leaves and they start the CR-1 process, won't the dates be in the system that showed they got married on the work visa?

Could this be a red flag further down the line?

Edited April 19, 2009 by baron555

[russ 1]

However, will getting married this summer be considered a visa fraud considering all the other facts?

More for the experienced posters here, if she comes into the US on the J-1 and they get married in the US while on the J-1 and then she leaves and they start the CR-1 process, won't the dates be in the system that showed they got married on the work visa?

It won't matter.

There is no problem getting married in the US, no matter what visa you entered on. It is a free country.

If a Frenchman with a B-1 visa marries a German with a J-1 in New York, no problem at all. My wife and I could have married when we were in Paris - it would still be just as legal. "Immigrant intent" is the issue here. FWIW, the only thing my wife was told the last time she had a J-1 was "don't get married." Also, make sure the visa states "2 year rule does not apply." Otherwise, there is a restriction that she must spend 2 years abroad before any other US visa type will be granted. (it generally does not apply to Russians)

If you end up getting married, an immigration lawyer may recommend not leaving the country until you had a green card, as you have more legal remedies available with a pending I130/I485 when you are physically here. I doubt there would be any problem going the K-3/CR-1 route either, just the time it takes. To stay within the "letter of the law," don't make a decision about getting married until this summer. Obviously, don't volunteer any information about this to USCIS or CBP. Since she is planning on returning to Russia (and will), there is really no issue of "immigration intent." As you said, she isn't planning on staying. In general, the longer you are married, the better. If she is leaving after the J1, nothing stops you from getting married in a 3rd country either. If it makes you feel better, spend a weekend in Paris or Rome on her way back to Russia and get married there. (I'm not a lawyer, this is in no way legal advice)

[Satellite 1]

If you are considering marriage in the US and you came on a visa other than a K1, consider the USCIS internal rules:

See:

9 FAM 40.63 N4.7 Applying the 30/60 Day Rule

http://www.state.gov/documents/organization/87011.pdf - Pages 5-8.

"If an alien violates his or her nonimmigrant status in a manner described in 9 FAM 40.63 N4.7-1 within 30 days of entry, you may presume that the applicant misrepresented his or her intention in seeking a visa or entry."

"If an alien initiates such violation of status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, submit a comprehensive report to the Advisory Opinions Division (CA/VO/L/A) for the rendering of an advisory opinion."

"When violative conduct occurs more than 60 days after entry into the United States, the Department does not consider such conduct to constitute a basis for an INA 212(a)(6)©(i) inadmissibility."

Therefore, make it easy on yourself and get married after you have been here at least 60 days to take the presumption off you.

[Cixelsyd 1]

Great ideas and advice. As always, thank you for the helpful input.

Just a quick question to clear things up though. I'm just curious if this information applies to those people who wish to get married and remain in the U.S. Not those who will get married and return home and follow the visa route.

In other words, are there any potential pitfalls by getting married in the states and then following the marriage visa route?