conflicting info. on k1 vs k3/immigration visa

[soko 0]

hello all. i have been researching the visa process for a few weeks now, and i'm more confused than when i started. basically, i seem to be getting very conflicting information on whether me and my girlfriend should aim for the k1 or the k3, depending on who i talk to and where i look. as background, i'm an american currently living in seoul with my girlfriend, who is from iran and is here earning her master's. we would like to try to move to the u.s. at the end of the year or early in 2011. i plan to propose to her in late june. i have now had several people (two immigration lawyers and two other people from this site) tell me that our best path is to get married here and then apply for an immigrant visa for her, or a k3. the two lawyers told me it would likely take 5-6 months, and the other two people said it could take a bit longer. however, i've now also been told by several other people (including an attorney who has extensive experience with people from iran and the middle east) that our best route is the k1. she said in her experience it has taken 3-6 months and that the k3 or immigrant visa would likely take well over a year. can anyone weigh in? from what i can tell by reading this site, the lawyers who told me it would only take 5-6 months for a k3 or immigrant visa seem to be grossly underestimating the time.

[soko 0]

One other question: If we went the k1 route, could she then temporarily leave the u.s. shortly after we got married so that we could have a wedding ceremony with her family in another country, as they likely won't be able to get into the u.s.? i read that you can apply to leave, but does anyone know if it's a complicated process or more of a formality? i imagine lots of people might want to have a honeymoon or another ceremony outside the u.s. after getting married....

[Dakine 26]

Check into DCF. {CR-1}

K3s are no longer practical[or possible in most cases}

Edited May 6, 2010 by Dakine

[trailmix 77]

I'm not sure about the K1 wait times, so I can't answer that.

Just a few things. The K3 is not an immigrant visa, is it a non-immigrant visa. What this means it that when the K3 holder enters the U.S. they do not automatically become a U.S. permanent resident. They have to adjust status after they enter the U.S.

The CR1 visa is an immigrant visa.

I would recommend you read the guides here. Click on the Guides link at the top of this page, read about the K1 and the CR1 and see which one would work better for you. Without doing your homework it is pretty much useless to speak with a lawyer as you don't know if they are advising your correctly or not.

As to your other question, about the K1 and leaving the country shorty after your marriage - the answer is no. The K1 is also a non-immigrant visa, so she would have to adjust her status once in the U.S. and she cannot leave until she has her advance parole or her green card, whichever comes first (this will make more sense after you read the guides).

Good luck.

Edited May 6, 2010 by trailmix

[Bernie C 24]

You'll need to do your research on this one - even if a immigration lawyer tells you something you'll need to check and verify it.

DCF may not work - depends on the consulate, where you were married, what your status is in the country you are in, the country of origin of your spouse etc...lots of things to look into. While you may be able to get legally married where you are, you may not be able to file DCF.

K-1, its my understanding that you must be residing in the US to file the I-129f petition and that it cannot be filed while living abroad.

You've got a bit of a task in research to do to figure this out. Hopefully you can get some past experience here from a very similar situation to help out. This is way beyond by scope of knowledge.

I do wish you the very best!

(just a note on K-1 - we filed in June of 2009 and were approved in December 2009 - entered US in January 2010 due to some minor delay at the consulate) so our case was 6-7 months start to POE.

[payxibka 10,045]

K-1, its my understanding that you must be residing in the US to file the I-129f petition and that it cannot be filed while living abroad.

No, not correct. A K-1 can only be submitted to a stateside USCIS service center but it does not require the petitioner to be in the US.

[pushbrk 12,883]

One other question: If we went the k1 route, could she then temporarily leave the u.s. shortly after we got married so that we could have a wedding ceremony with her family in another country, as they likely won't be able to get into the u.s.? i read that you can apply to leave, but does anyone know if it's a complicated process or more of a formality? i imagine lots of people might want to have a honeymoon or another ceremony outside the u.s. after getting married....

No, she cannot leave until at least three months after marriage and AOS filing when she receives Advance Parole. If she leaves without Advance Parole, she will not be allowed in without starting over again.

Check with the Consulate about the Direct Consular filing in Japan after marriage.

The lawyer recommending a K1 visa with a 3 month timeline is full of sh**.

K3 is no longer a viable option.

[Bernie C 24]

No, not correct. A K-1 can only be submitted to a stateside USCIS service center but it does not require the petitioner to be in the US.

"Residing" in the US and and "being" in the US are two different things. While you do not have to be present in the US to submit the I129f, you must "reside" in the US.

It the OP does not have a current US residence, then he cannot file a I-129f.

[payxibka 10,045]

"Residing" in the US and and "being" in the US are two different things. While you do not have to be present in the US to submit the I129f, you must "reside" in the US.

It the OP does not have a current US residence, then he cannot file a I-129f.

Who says?

From the I-129F Instructions:

If you are filing abroad:

File Form I-129F with the service center listed below based on the last place you lived in the United States.

NOTE: Your petition cannot be adjudicated at a USCIS office abroad.

The word "lived" is past tense....

[pushbrk 12,883]

Who says?

From the I-129F Instructions:

If you are filing abroad:

File Form I-129F with the service center listed below based on the last place you lived in the United States.

NOTE: Your petition cannot be adjudicated at a USCIS office abroad.

The word "lived" is past tense....

Yes and no but mostly correct. We've seen I-129F petitions filed from abroad be returned for the lack of a US address. So, while the petitioner need not either currently be present OR reside in the USA, they need an "address" in the USA, listed on the I-129F. That's the address NOA's will be mailed. Using a friend or parent's address is fine. Strangely, you'll find nothing indicating that in the instructions.

[antoneya 9]

One other question: If we went the k1 route, could she then temporarily leave the u.s. shortly after we got married so that we could have a wedding ceremony with her family in another country, as they likely won't be able to get into the u.s.? i read that you can apply to leave, but does anyone know if it's a complicated process or more of a formality? i imagine lots of people might want to have a honeymoon or another ceremony outside the u.s. after getting married....

Based on the information you provided…This is ONLY a recommendation/opinion of what you should do.

You should get married to your girlfriend where her family can make it and register the wedding with the proper government agent of that country, collect all the necessary paper work and file the form 1-130 (CR-1 Visa).

Why?

With the K-I visa (fiance visa):

Cons:

- You have 90 days from the time she enters the U.S. to get married.

- She will not be able to leave the US for a while

- Very difficult for her family to attend the wedding

- In the long run it will cost you more money with the Adjustment of Status (AOS)

Pros:

- You guys can be together must faster

- Save on the wedding cost (small wedding) and don’t have to deal with the in-laws…lol

With the K-3 visa (Non-immigrant Visa for a Spouse):

In the past the CR-1 visa used to take about a year or more to process, so while you waited for that you can apply for the K-3 and get your wife into the country faster. However now the CR-1 and K-3 are processing at the same time (2- 5 month or even longer and depending on your personal facts).

Cons:

- You can’t apply for the k-3 with showing proof that you applied for the CR-1

- Which also means you have to be married and have applied for and received notice from USCIS of you CR-1 application

- Since they both will be processed at the same time the NVC will just cancel the k-3 when it gets to them (if both k-3 and CR-1 is received at NVC same time)

- You have to do a AOS - more forms and money

Pros:

- Can't really think of any

With the CR-1 (Immigrant Visa for a Spouse)

Cons:

- You have to be married in order to apply

- Takes longer then the K-1 but by how much will depend of your case

Pros:

- No AOS so less total cost in the long run

- She will get her Green card with weeks of entering the US

- Which mean she can travel as soon as the GC arrives

Timeframe:

K-1: Avg. 5 months USCIS + time at consulate (depends on which on how busy they are)

CR-1: Avg. 5 months USCIS + 1 month NVC + Time at consulate

Assuming the “time at consulate” is the same for both K-1 and CR-1 than really it’s only a difference of about a month.

Also note that every case is different, there are people who have got their process completed with a few months and there are people with cases that have taken over a year or more to complete.

[Bernie C 24]

Yes and no but mostly correct. We've seen I-129F petitions filed from abroad be returned for the lack of a US address. So, while the petitioner need not either currently be present OR reside in the USA, they need an "address" in the USA, listed on the I-129F. That's the address NOA's will be mailed. Using a friend or parent's address is fine. Strangely, you'll find nothing indicating that in the instructions.

Sorry Paxy! I stand corrected. I'm getting practicality intermingled with tecnicality and that is not a good idea. You are correct that you are not required to currently reside in the US to file the I-129f.

I was incorrect. I apolgize to the OP for posting incorrect information.

[payxibka 10,045]

Yes and no but mostly correct. We've seen I-129F petitions filed from abroad be returned for the lack of a US address. So, while the petitioner need not either currently be present OR reside in the USA, they need an "address" in the USA, listed on the I-129F. That's the address NOA's will be mailed. Using a friend or parent's address is fine. Strangely, you'll find nothing indicating that in the instructions.

while some experiences might contradict, if you look at the I-129f, it handles foreign addresses for the petitioner

[soko 0]

thanks everyone. i can always use my mother's address, which is where i have my mail sent. some good thoughts/advice for me to consider...