Can I-129F be sent while Fiancée in USA?

[laybar 0]

Hey guys,

Once again, I need your help. I had posted my situation before (I, USC, live in Dominican Rep -- fiancee's homeland -- since 15 yrs back and would now like to go back to USA since we finished Medical School>> long story short: she has to enter USA in June to take an exam and come back to D.R.). Based on the feedback I got in my last post, I'd decided to wait 'til she got back to THEN send out the I-129F pack.

But now an opportunity has arisen. A friend in a hospital in NY is offering her a rotation right after the June exam so I wouldn't like to wait until she's back to send the pack out (it would take too long). I was wondering, if she entered the USA and I sent out the pack WHILE she was there, is that illegal? I wouldn't even consider it if I knew it was illegal, so please help me you visa-savvy! Oh, BTW,... she would of course come back to the D.R. after the rotation!!

Thanks

[scy 0]

Hey guys,

Once again, I need your help. I had posted my situation before (I, USC, live in Dominican Rep -- fiancee's homeland -- since 15 yrs back and would now like to go back to USA since we finished Medical School>> long story short: she has to enter USA in June to take an exam and come back to D.R.). Based on the feedback I got in my last post, I'd decided to wait 'til she got back to THEN send out the I-129F pack.

But now an opportunity has arisen. A friend in a hospital in NY is offering her a rotation right after the June exam so I wouldn't like to wait until she's back to send the pack out (it would take too long). I was wondering, if she entered the USA and I sent out the pack WHILE she was there, is that illegal? I wouldn't even consider it if I knew it was illegal, so please help me you visa-savvy! Oh, BTW,... she would of course come back to the D.R. after the rotation!!

Thanks

By saying rotation I assume that your fiancee will be working for money? Will she have a valid work visa when she is on this "rotation"? It's a difficult situation if she is on a work visa, and then she applies for a K-1. You can not change from a nonimmigrant visa to a K-1. However, if her work visa is finished when she applies for a K-1, then she should be fine. When I say apply for a K-1, I mean when she actually makes the application at the consulate level, not when you petition for her.

For now I think you will be ok if you file the I-129F petition for your fiancee regardless of where she will be working. But if I was your fiancee, I would make sure that I finish any work visas before I apply for the K-1.

I'm not a lawyer so take my advice with a lot of salt.

Good luck.

[laybar 0]

By saying rotation I assume that your fiancee will be working for money?

No, actually this is a non-paying rotation... just as a Doctor observing how 'things are done' in hospitals in the U.S.

Thanx for the quick response... does this change anything?

[scy 0]

By saying rotation I assume that your fiancee will be working for money?

No, actually this is a non-paying rotation... just as a Doctor observing how 'things are done' in hospitals in the U.S.

Thanx for the quick response... does this change anything?

No it doesn't. Make sure the student visa is finished when she applies for the K-1. But you should get started and petition for the K-1 for your fiancee as soon as possible.

[Chuckles 0]

I am really absolutly no expert on this subject, but can't you just get married and apply for AOS on the visa? Is there a need for a K1?

[Satellite 1]

Perhaps this is all too complicated. You should consult with an attorney to see if it possible for her to come here as a "student" or "observer" as you say and then you guys get married here in the states and file for AOS, especially if she plans on being here for a long time.

Her intent upon entering the country is to study and not to marry you. If you go with this I think you will save yourself a big headache and be together a lot faster than through a K1.

[laybar 0]

No it doesn't. Make sure the student visa is finished when she applies for the K-1. But you should get started and petition for the K-1 for your fiancee as soon as possible.

Ok... that worries me. A few friends of mine that got visas for rotations (from consulate in D.R.) received anywhere from 1 - 5 years non-immigrant visas. If they gave her that much time... would she have to wait that long to apply for K1????!

I must add: they weren't given actual 'student' visas, as the hospital rotations don't have a specific pensum or program... you go and 'observe'...

Does THIS make a difference? I mean, if it's not a student visa... just regular 'ole visitor's visa?

Perhaps this is all too complicated. You should consult with an attorney to see if it possible for her to come here as a "student" or "observer" as you say and then you guys get married here in the states and file for AOS, especially if she plans on being here for a long time.

Her intent upon entering the country is to study and not to marry you. If you go with this I think you will save yourself a big headache and be together a lot faster than through a K1.

Yup, I had asked about this before but was quickly told that was immigration FRAUD... entering with one idea and then trying to change your status, you know? It sounds logical so I dropped it.

Thanx to all for answering so quickly! You're the best!

[scy 0]

No it doesn't. Make sure the student visa is finished when she applies for the K-1. But you should get started and petition for the K-1 for your fiancee as soon as possible.

Ok... that worries me. A few friends of mine that got visas for rotations (from consulate in D.R.) received anywhere from 1 - 5 years non-immigrant visas. If they gave her that much time... would she have to wait that long to apply for K1????!

I must add: they weren't given actual 'student' visas, as the hospital rotations don't have a specific pensum or program... you go and 'observe'...

Does THIS make a difference? I mean, if it's not a student visa... just regular 'ole visitor's visa?

Perhaps this is all too complicated. You should consult with an attorney to see if it possible for her to come here as a "student" or "observer" as you say and then you guys get married here in the states and file for AOS, especially if she plans on being here for a long time.

Her intent upon entering the country is to study and not to marry you. If you go with this I think you will save yourself a big headache and be together a lot faster than through a K1.

Yup, I had asked about this before but was quickly told that was immigration FRAUD... entering with one idea and then trying to change your status, you know? It sounds logical so I dropped it.

Thanx to all for answering so quickly! You're the best!

Maybe I'm saying this wrong. What I meant is that your fiancee should not be physically inside the US on any visa when she applies for a K-1. If she is present in the US when she applies for a K-1, it will make it look like she is trying to change from one nonimmigrant classification to the K-1, which she can not do. Is that clearer?

When she applies for a K-1, she can possess any sort of tourist visas but as long as she isn't in the US then that should be ok.

Check out the link below for the law on change of nonimmigrant classification.

http://ecfr.gpoaccess.gov/cgi/t/text/text-...0.1.2.41&idno=8

Edited February 15, 2006 by scy

[Peter Miami 0]

I would definitely consult an Immigration attorney.

Peter Miami

[laybar 0]

Maybe I'm saying this wrong. What I meant is that your fiancee should not be physically inside the US on any visa when she applies for a K-1. If she is present in the US when she applies for a K-1, it will make it look like she is trying to change from one nonimmigrant classification to the K-1, which she can not do. Is that clearer?

When she applies for a K-1, she can possess any sort of tourist visas but as long as she isn't in the US then that should be ok.

Suddenly everything is sooooo clear... Thanx, Scy, you've been great. In that case, there shouldn't be any problem... I'll just try to make sure her rotation is short so she can come back quickly and apply... they're taking FOREVER in the D.R. Consulate to interview.

Thanks, again!

I would definitely consult an Immigration attorney.

Everyone here always makes 'em sound so useless... do you think they're not?

[lostinlove228 0]

consult with an attorney. You may not have to bother with the K-1 Process at all. Since it is abvious that you guys have had a relationship and her non-immigrant visa is not for a short time, it won't look like she is just trying to stay here. Get married and adjust her status. But again consult with an attorney to make sure this is legal and will not come back and bite you in %^&$

[laybar 0]

consult with an attorney. You may not have to bother with the K-1 Process at all. Since it is abvious that you guys have had a relationship and her non-immigrant visa is not for a short time, it won't look like she is just trying to stay here. Get married and adjust her status. But again consult with an attorney to make sure this is legal and will not come back and bite you in %^&$

Hmmmm... seems like a considerable amount of people think they [immigration attorneys] are useful ... funny, because reading here I'd always felt they weren't.

Go figure... just wish I could trust some in the D.R., I went to one before I got to this site and basically realized she KNEW NOTHING.

Thanks for your responses... you're ALL very helpful.

[lucyrich 20]

I wouldn't disagree that you should consult with an attorney, because you're definitely getting some incorrect information here.

You can most definitely file the petition while she is in the states. We did.

After the petition is filed, it will count as one factor that would indicate she is an intending immigrant, so it may make it more difficult (perhaps almost impossible, depending on the other facts of her case) for her to enter the US on any type of entry that would require her to demonstrate non-immigrant intent. But if she's already entered and has legal status here, filing the petition won't revoke her legal status.

She can only get a visa by applying in-person at a foreign consulate abroad. She would apply after your petition is approved and forwarded to the consulate, so that won't happen for awhile. At the time she presents her application in-person to the officers at the consulate abroad, she can't be inside the US, for obvious physical reasons, nevermind legalities.

There's nothing wrong with her having one type of visa with lots of available time left, then leaving the US, applying for a different type of visa, receiving it, and entering with a new status from the new visa.

It may be possible, perhaps even preferable, to marry and file for adjustment of status instead of leaving the US to pursue a fiancee visa. To do this, you will have the burden of proving that her most recent entry was legal. I.e. that she told the truth to the inspecting officer, and that she really did have the intent to comply with all of the terms of her visa at the time she entered. The most significant issue is that she must not have had the intent to stay and adjust status. Once she's made the decision to marry and immigrate, she cannot enter with the intent of staying and adjusting status unless she's entering on a K visa. If these rules seem to present a problem, it may be safer to apply for a K visa.

[Chuckles 0]

consult with an attorney. You may not have to bother with the K-1 Process at all. Since it is abvious that you guys have had a relationship and her non-immigrant visa is not for a short time, it won't look like she is just trying to stay here. Get married and adjust her status. But again consult with an attorney to make sure this is legal and will not come back and bite you in %^&$

Hmmmm... seems like a considerable amount of people think they [immigration attorneys] are useful ... funny, because reading here I'd always felt they weren't.

Go figure... just wish I could trust some in the D.R., I went to one before I got to this site and basically realized she KNEW NOTHING.

Thanks for your responses... you're ALL very helpful.

Immigration attorneys are useless if you have a straitforward case. If there is any deviation or extenuating circumstances, attorneys are helpful.

[laybar 0]

It may be possible, perhaps even preferable, to marry and file for adjustment of status instead of leaving the US to pursue a fiancee visa. To do this, you will have the burden of proving that her most recent entry was legal. I.e. that she told the truth to the inspecting officer, and that she really did have the intent to comply with all of the terms of her visa at the time she entered. The most significant issue is that she must not have had the intent to stay and adjust status. Once she's made the decision to marry and immigrate, she cannot enter with the intent of staying and adjusting status unless she's entering on a K visa. If these rules seem to present a problem, it may be safer to apply for a K visa.

I wish I could honestly say "no... she has no intention of marrying and staying" but that would be dishonest and could hurt our case. I think I prefer the K1 visa... even if it's soooo long a process. WHY DIDN'T GOD MAKE US DISHONEST?!!!

Thanks lucyrich for your comment... the more information I can get, the better to make the correct decision for us. It's commendable that you'd all take your time to help others who are in the situation you once were. This will be rewarded.