IMBRA and the K-1 process

[PurrSuede 0]

Ok, here's my story and why it's going to involve IMBRA

I was engaged to a Russian Woman in 2002. I filed a K-1 for her. It was approved. But before the interview in Moscow could take place, circumstances in our relationship caused it to end. So I voluntarily withdrew the petition, though it had been approved. I do have documentation from the USCIS that I recalled the petition.

Then I got engaged in 2003 and filed a K-1 again. She came over here in 2004 and we were married. The marriage (recently) ended in divorce, after two years.

From my reading of IMBRA because I filed -two- K-1 petitions in the past, I must request a waiver.

There is not, nor has there ever been ANY domestic (or other kind of) violence or criminal background in my past.

But as I see things, if I do go back to Russia and try this again, this would be my THIRD K-1 therefore I am obligated to apply for a waiver of the numerical limitation.

In my case, I withdrew the first K-1 petition. That doesn't constitute a "history" of withdrawing petitions, as mentioned in the IMBRA document.

The 2nd K-1 petition became a valid marriage but ended in divorce recently.

What bothers me is that I voluntarily pulled the first petition, the 2nd one ended in a divorce, and now if I do try a third time then I will be listed in a database of "serial petitioners" and my obligatory waiver-request will be reviewed by an adjuster who will make a decision on this based on my "history".

I understand the purpose of IMBRA, the rationale behind it, but taking myself for an example, there are people who are caught up in the law itself (not just the implementation thereof).

Now I'm not planning on filing another K-1 until 2007 at the earliest, if at all, but nevertheless I'm still subject to an adjuticator's opinion and decision on this... and that part of it does make me worry a bit...

I'm even pondering if I need to get an immigration attorney the next time around, though I did see one who said they had 100% success rates, they issued the disclaimer "unless you've had previous immigration issues or applications before, then it's not guaranteed!"

-- Dan

[Mew 0]

You might want to read this document to understand how USCIS processes such cases: http://www.uscis.gov/graphics/lawsregs/han...IMBRA072106.pdf

Good luck!

[PurrSuede 0]

You might want to read this document to understand how USCIS processes such cases: http://www.uscis.gov/graphics/lawsregs/han...IMBRA072106.pdf

Good luck!

I ~did~ read that document, and that's what prompted me to post..

and here's the catch:

The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the adjudicator.

so it comes down to the SOLE DISCRETION of the adjudicator. That would imply there is NO appeal process, it comes down to one person's OPINION.

I'm researching this on the Web. Immigration attorneys don't have any experience in this yet, so they don't know how the USCIS will respond to cases like this... and they say they will help prepare waiver requests, but they have no case history to base their process on, as of yet...

I suppose WORST case, I could always go ahead and get married and then file for a K-3 visa instead...

-- Dan

[Mew 0]

You might want to read this document to understand how USCIS processes such cases: http://www.uscis.gov/graphics/lawsregs/han...IMBRA072106.pdf

Good luck!

I ~did~ read that document, and that's what prompted me to post..

and here's the catch:

The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the adjudicator.

so it comes down to the SOLE DISCRETION of the adjudicator. That would imply there is NO appeal process, it comes down to one person's OPINION.

I'm researching this on the Web. Immigration attorneys don't have any experience in this yet, so they don't know how the USCIS will respond to cases like this... and they say they will help prepare waiver requests, but they have no case history to base their process on, as of yet...

I suppose WORST case, I could always go ahead and get married and then file for a K-3 visa instead...

-- Dan

I think the main point would be gathering evidence of why you have withdrawn the first K1. The list of evidence in the memo brings shows only a few examples and because adjudicators don't have experience in dealing with such waiver, you might get some problems. The second K1 you've filed for wouldn't be a problem - you married your then fiance and ended up divorcing her. You're right. The K3 route wouldn't be as risky.

Edited August 11, 2006 by Mew

[PurrSuede 0]

I think the main point would be gathering evidence of why you have withdrawn the first K1. The list of evidence in the memo brings shows only a few examples and because adjudicators don't have experience in dealing with such waiver, you might get some problems. The second K1 you've filed for wouldn't be a problem - you married your then fiance and ended up divorcing her. You're right. The K3 route wouldn't be as risky.

Actually, the more I read through that, it would appear that getting K-3'd, and get married, I'd be much better off, according to them:

IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3).

I would hate to go through the entire K-1, apply for the waiver, get turned down and meanwhile... we wait...

Depending on the outcome of Waiver cases which haven't even occured yet, it looks like it would be MUCH better to go for a K-3 ~if~ I ever do this again...

And part of it, it would make sense to explain to my "intended" point blank, I had fiancee that didn't work, I had marriage that didn't work, if we get married in your country, it would be less risky than to apply for alien K-1 fiancee visa. Not that I ~like~ the idea of getting married and then waiting for the visa, but... it might be better than applying for a fiancee visa and not getting the waiver, and being declined.

Frankly I have found NO cases yet of any waiver being granted, because the law is so dang new.

Seems like I'm between a rock and a hard place. I know y'all got all messed up because of IMBRA, but here I am because of circumstances and I ~might~ not be able to get approved for a K-1 ever again depending on the "sole discretion" of the USCIS adjudicator!

I just want to be prepared before even going into this process again!

-- Dan

[Yodrak 7]

Dan,

Or skip a K3 and stay on the immigrant visa path - no I-129f involved.

Yodrak

....

Actually, the more I read through that, it would appear that getting K-3'd, and get married, I'd be much better off, according to them:

IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3).

...

-- Dan

Edited August 11, 2006 by Yodrak

[PurrSuede 0]

Dan,

Or skip a K3 and stay on the immigrant visa path - no I-129f involved.

Yodrak

Ok, color me confused... meaning what???

Aside from the K1, how do I skip the K3, stay on the immigrant visa path, and no I-129F???

-- Dan

[aussiewench 9]

Dan,

Or skip a K3 and stay on the immigrant visa path - no I-129f involved.

Yodrak

Ok, color me confused... meaning what???

Aside from the K1, how do I skip the K3, stay on the immigrant visa path, and no I-129F???

-- Dan

Correct as it is the immigrant visa, with green card on entry, immigrant status, no AOS. The I-130 petition needed to apply for the CR-1 is not affected by IMBRA at all.

[PurrSuede 0]

Correct as it is the immigrant visa, with green card on entry, immigrant status, no AOS. The I-130 petition needed to apply for the CR-1 is not affected by IMBRA at all.

Ok, so researching the USCIS website... wasn't the K-3 designed to be an expedited CR-1??

But I guess what you are saying... you can always take this route if needed...

Any advantages to this processing of the CR-1 other than the NO IMBRA on the I-130??

Any difference in time frames??

Thank you in advance for your comments and thoughts on this. I just want to know all my alternatives...

I don't have a problem telling anyone that I had a fiancee (who never came to America) and a foreign wife (we divorced), so this isn't a big secret from someone else I might want to marry...

I just want to know my alternatives before I even begin to look...

-- Dan