complicated situation (k1)..please help!

[jjsa 0]

I’m sorry for the long post, but Id greatly appreciate it if you want to read this and help me!

Hello Everyone,

My name is Judith, I am Dutch and new to this forum. I have a complicated situation, so I hope you can help me out. I have an American fiancé, I met him in 2005, when I was an exchange student at a high school. We were both 17 at that time and I stayed there for a year on a J1 Student Visa. After I left to go back to The Netherlands again, we still dated and I came back in December 2006 for 2 weeks on a tourist visa. After that time, we were both busy with college and work, and unfortunately did not have the time and money to visit each other soon again. Luckily, we saw each other again after that long period of time, in July 2008, when I came to the U.S, again on a J1 student visa as I was going to complete a semester abroad at a University in Arizona. So before I started my semester there in August, I first went to visit my fiancé in July (at that time still boyfriend) for about 3 weeks. I studied in Arizona from August 2008 till December 2008 and in between I also traveled again to visit my fiancé during my thanksgiving break. In December 2008, I went back to the Netherlands and then went to Asia to do my internship for 5 months. I came back to the Netherlands in June 2009 and luckily the next month, I had a long summer holiday so I could visit my fiancé for 8 weeks. So during this last summer we got engaged . Now I am back in the Netherlands, in my senior year of college and figuring out the best ways for us to be together. I am planning to graduate in June 2010 or September 2010. We were thinking about the K1 procedure or the K3 procedure, but do not know what would be the best to do and therefore we would like your advice.

There are some factors that influence the choice of choosing for the K1 or K3 in our case:

Unfortunately, I recently found out that I with my previous J1 visa, on which I came to Arizona, I have a Two-Year Foreign Residence Requirement. I am actually surprised about this, as I financed everything by myself. My J1 Visa ended in December 2008, so this would mean that I could not come back to the U.S on certain non-immigrant and immigrant visas till December 2010. I read that you could apply for a waiver, but how does that exactly go when I am in the Netherlands? Because so far, I only read stories about people who want a waiver for the 2 year rule and for example obtained a no objection letter, when they were already in the U.S.

In February till April, I do not have school and start again in April for my last 2 months. So I have 3 months off and wanted to visit my fiancé then. I wonder if this would be a good idea if we would have started the K1 procedure, even if it is not illegal to do so. If we want to start the K1 process, we would want to file in December 2009, as it could still take up a long while and as I graduate in June or September 2010, we think it would be the best to start in December. I read that you could visit your fiancé, while your K1 case is pending, but it will not guarantee you entry and may be risky at times. I wonder if it may be too risky, also because it is not a 1 or 2 week visit, but for 3 months. I want to do everything legally and have no intentions of staying. I have proof that I have ties to the Netherlands, I can for example show a return ticket and that I need to come back in order to graduate from college but have currently no job in the Netherlands as I am busy with school, I also wouldn’t have proof of a lease or anything, as I live with my parents now. Other than that, I have visited the U.S by then, 2 times on a J1 visa and 2 times on a tourist visa, one time for 2 weeks, the other time for 8 weeks. The first time on my J1 visa was in august 2005 for 11 months, so till June 2006. The second time 6 months when I went to Arizona, from July 2008 till December 2008. What would you advice me; do you think it is too risky to come visit my fiancé in the U.S for 3 months (max. of tourist visa), while our K1 case would be pending under my circumstances?

Otherwise, I thought of going to the U.S in February for 3 months on a tourist visa, marry my fiancé and start the k3 procedure and go back to the Netherlands and wait till I can come back. However, I read that the K3 procedure usually takes longer. Even though it would be worth the wait and time, we still hope we can be together as soon as possible after a long distance relationship of almost 5 years by then.

So what do you think what would be the best we can do?

• Start k1 around December and go the U.S for a 3 month visit under my circumstances and take the risk

• Start k1, do not take the risk and wait till I can come but not being able to see my fiancé for a long while

• Go to the U.S in February on a tourist visa for 3 months, marry my fiancé and come back to the Netherlands, with the chance of a longer wait

• And last, what should I do about the J1 2 year home residency rule? I think if we start the k3 process around march, it stay may take a while. I think there would also be a chance that I would get the K3 visa, only after December 2010 (when my J1 2 year rule ends). So if we choose for the K3, maybe the waiver would not even be necessary, as it still cost 215 dollars and may be a waste of money then.

I really do not know what would be best to do and therefore I am hoping you can help and advice us, me and my fiancé greatly appreciate it. Again, sorry for the long post. I’m looking forward to everyone’s reply.

- Judith

[JimVaPhuong 4,863]

There are other grounds for asserting the 2-year rule, besides financial. If your education or training is listed on the Exchange Visitor's Skills List for your country, or if you're receiving graduate medical education or training, then you are subject to the 2-year rule. You aren't eligible for a K visa during the two years unless you apply for a waiver. Complete instructions can be found here:

http://travel.state.gov/visa/temp/info/info_1288.html

If you have either a K1 or K3 visa petition submitted, there's a good chance that CBP will not admit you to the US for 3 months. If they admit you at all, it will likely be for a much shorter visit.

A return ticket is not proof that you'll return to your home country, though not having a return ticket is almost certainly going to get you denied entry. If all you've got is evidence that you need to return to complete your studies, then you may have trouble getting into the US after your K visa petition has been submitted. When CBP determines the risk of an alien overstaying their visa, they weigh the evidence. Immigrant intent is presumed for all aliens entering the US, so they're looking for evidence that disproves that assumption. The K visa petition establishes your immigrant intent beyond any doubt, so they're going to be looking for substantial evidence that you have a LOT to lose by not returning to your home country. From what you describe, it doesn't sound like you have much to lose by coming to the US on a tourist visa, getting married, and applying for a green card. There's a good chance you'll be denied entry.

I think you should get started on the J-1 waiver now. Depending on the grounds you choose for the waiver, it could be completed in a couple of months.

After that, I wouldn't make any concrete plans that depend on you being able to enter the US for any specific amount of time, or being present in the US on a specific day. You are at the mercy of the CBP. Plan your trips as visits only. That way you won't have any plans seriously disrupted if you are denied entry. If you are denied entry, it shouldn't have any adverse effect on your K visa petition or application. However, it does mean you probably won't be coming back to the US until you either get your K visa, or you develop substantial 'ties' to your home country that would improve your chances of getting a tourist visa in the future.