What type of Visa is best for me and my Brasilian fiancee?

[desert_fox 32]

yup....and the 134 regarding financialol support

make sure you read the instructions/

[/quote

..and the form for the biological info...the form with the 4 copies./...it's been so many years that I have forgotton.

The 134 will be required at the interview.

Just read the instructions.........have the evidence that you have met...you won't have any problem.

yup....and the 134 regarding financialol support

make sure you read the instructions/

[/quote

..and the form for the biological info...the form with the 4 copies./...it's been so many years that I have forgotton.

The 134 will be required at the interview.

Just read the instructions.........have the evidence that you have met...you won't have any problem.

[Journeyer 17]

yup....and the 134 regarding financialol support

make sure you read the instructions/

Thanks!

[K and L 27]

yup....and the 134 regarding financialol support

make sure you read the instructions

..and the form for the biological info...the form with the 4 copies./...it's been so many years that I have forgotton.

The 134 will be required at the interview.

Just read the instructions.........have the evidence that you have met...you won't have any problem.

It doesn't matter if you send your I-134 with your initial petition or not. I did, and it just meant the CO had my financial information w/ supporting documentation on hand and had been able to review it prior to the interview. It doesn't speed anything up, it doesn't slow anything down.

If you send it with your petition, you'll still need to bring a copy with you to the interview, as the CO that checks you in will check that you have your I-134 and supporting tax records from the most recent filing year when she checks your photos and other documentation. When L was interviewed, the CO used the copy of the I-134 I submitted with the I-129F to ask questions, not the copy I provided.

Edited September 20, 2010 by K and L

[Journeyer 17]

Well, I have started getting everything together for the K-1, and have all the documents downloaded and starting to fill them out. But now, I am having 2nd thoughts again. My fiancee wants to come for another visit in November and bring her daughter and her daughters new husband to meet me. She wants to stay for the holidays, maybe 2-3 months in all, and so now we are thinking about just getting married while she is her and going for the CR-1 instead of the K-1. It looks to be a lot cheaper and maybe even simpler. Anyone have any advice? I know I have to make up my mind and get rolling on this. Is it ok to get married here on the tourist visa as long as she does not overstay and we file everything properly?

[JimVaPhuong 4,863]

Well, I have started getting everything together for the K-1, and have all the documents downloaded and starting to fill them out. But now, I am having 2nd thoughts again. My fiancee wants to come for another visit in November and bring her daughter and her daughters new husband to meet me. She wants to stay for the holidays, maybe 2-3 months in all, and so now we are thinking about just getting married while she is her and going for the CR-1 instead of the K-1. It looks to be a lot cheaper and maybe even simpler. Anyone have any advice? I know I have to make up my mind and get rolling on this. Is it ok to get married here on the tourist visa as long as she does not overstay and we file everything properly?

Yes, you can get married while she's here on a tourist visa. Once married, you can file for adjustment of status to get her a green card. The problem is that you can't legally plan to do this in advance.

I know, it's a little wacky...

A non-immigrant visa is meant to be used for non-immigrant purposes. Someone who intends to immigrate is supposed to get an immigrant visa, or at least get a non-immigrant visa that specifically allows the alien to immigrate after their arrival in the US, like a K1. To enter the US with a non-immigrant visa, like a B2, with the intention of immigrating is called "preconceived intent" - an attempt to circumvent the normal immigrant visa process.

Here's where it get's sticky...

At one time, INS would routinely deny AOS to someone if they had any evidence of preconceived intent. A few cases with the Board of Immigration Appeals changed this. Preconceived intent is still considered to be a strong negative factor, but by itself it does not outweigh the positive factor of being an immediate relative (spouse) of a US citizen. They may suspect preconceived intent. They may even be able to prove preconceived intent. They won't deny the AOS solely for preconceived intent.

But that's not all...

Let's say someone enters the US with no intention of immigrating. The CBP officer at the port of entry asks them "What is your purpose for visiting the US?". They respond "To visit my boyfriend". The CBP officer continues "Do you plan to marry while you're in the US?". They respond "No, no plans". While in the US, they spontaneously decide to go to Las Vegas and get married. Afterward, they apply for AOS. There's no preconceived intent, so there's no problem.

Now let's throw a curve into the mix...

Let's say that they really did plan to get married and adjust status when they entered. Just to be prepared, they threw their birth certificate, papers from a previous divorce, and other essential documents they knew they would need into their luggage. Maybe they even brought a wedding dress. TSA happens to find this stuff in their luggage during a routine screening, and notifies CBP. What they have now is evidence of preconceived intent, but remember - they won't deny solely for preconceived intent. The alien and CBP have the same conversation described above. Again, no problems, so far. The alien and her boyfriend get married in Las Vegas, and submit the AOS application. USCIS now has evidence of the preconceived intent, as well as evidence that the alien lied about their intent to an immigration officer - material misrepresentation - the AOS is denied, along with a lifetime ban from the United States. It's misrepresentation because she lied. It's material because if she'd told the truth then the CBP officer would probably have denied her entry.

Evidence of preconceived intent doesn't have to be as blatant as described above. It can be something as simple as booking the caterer before the alien enters the US.

The risk is not huge, but it is real. A non-immigrant visa cannot legally be used to intentionally circumvent the immigrant visa process. Allowing the spouse of a US citizen to adjust status while visiting the US is an exception to the immigrant visa process, and not simply an alternative to it.

If you are planning on getting married while she's here, then you should also be planning on going through the CR1 visa process.

[Journeyer 17]

Yes, you can get married while she's here on a tourist visa. Once married, you can file for adjustment of status to get her a green card. The problem is that you can't legally plan to do this in advance.

I know, it's a little wacky...

A non-immigrant visa is meant to be used for non-immigrant purposes. Someone who intends to immigrate is supposed to get an immigrant visa, or at least get a non-immigrant visa that specifically allows the alien to immigrate after their arrival in the US, like a K1. To enter the US with a non-immigrant visa, like a B2, with the intention of immigrating is called "preconceived intent" - an attempt to circumvent the normal immigrant visa process.

Here's where it get's sticky...

At one time, INS would routinely deny AOS to someone if they had any evidence of preconceived intent. A few cases with the Board of Immigration Appeals changed this. Preconceived intent is still considered to be a strong negative factor, but by itself it does not outweigh the positive factor of being an immediate relative (spouse) of a US citizen. They may suspect preconceived intent. They may even be able to prove preconceived intent. They won't deny the AOS solely for preconceived intent.

But that's not all...

Let's say someone enters the US with no intention of immigrating. The CBP officer at the port of entry asks them "What is your purpose for visiting the US?". They respond "To visit my boyfriend". The CBP officer continues "Do you plan to marry while you're in the US?". They respond "No, no plans". While in the US, they spontaneously decide to go to Las Vegas and get married. Afterward, they apply for AOS. There's no preconceived intent, so there's no problem.

Now let's throw a curve into the mix...

Let's say that they really did plan to get married and adjust status when they entered. Just to be prepared, they threw their birth certificate, papers from a previous divorce, and other essential documents they knew they would need into their luggage. Maybe they even brought a wedding dress. TSA happens to find this stuff in their luggage during a routine screening, and notifies CBP. What they have now is evidence of preconceived intent, but remember - they won't deny solely for preconceived intent. The alien and CBP have the same conversation described above. Again, no problems, so far. The alien and her boyfriend get married in Las Vegas, and submit the AOS application. USCIS now has evidence of the preconceived intent, as well as evidence that the alien lied about their intent to an immigration officer - material misrepresentation - the AOS is denied, along with a lifetime ban from the United States. It's misrepresentation because she lied. It's material because if she'd told the truth then the CBP officer would probably have denied her entry.

Evidence of preconceived intent doesn't have to be as blatant as described above. It can be something as simple as booking the caterer before the alien enters the US.

The risk is not huge, but it is real. A non-immigrant visa cannot legally be used to intentionally circumvent the immigrant visa process. Allowing the spouse of a US citizen to adjust status while visiting the US is an exception to the immigrant visa process, and not simply an alternative to it.

If you are planning on getting married while she's here, then you should also be planning on going through the CR1 visa process.

Wow, thanks so much for the detailed answer. This is a tough decision. We would like to get married while she is here, but we are really still trying to decide. We probably would not want to risk trying to adjust status while she is here, and so we would probably get married after she was here for a couple of months, and then start the CR-1. Is that still risky for her to marry me here if she plans on returning to Brazil while the CR-1 is processing? Would it also be risky for her to attempt visits while we are waiting? I have to tell you, it is very tempting for me to try to get her to just stay and try to adjust status after we marry, it is hard for us to be apart, we have spent most of the last 2 years together. But I don't want to do anything overly risky. Again, thanks for the info, I really appreciate it.

[JimVaPhuong 4,863]

Wow, thanks so much for the detailed answer. This is a tough decision. We would like to get married while she is here, but we are really still trying to decide. We probably would not want to risk trying to adjust status while she is here, and so we would probably get married after she was here for a couple of months, and then start the CR-1. Is that still risky for her to marry me here if she plans on returning to Brazil while the CR-1 is processing? Would it also be risky for her to attempt visits while we are waiting? I have to tell you, it is very tempting for me to try to get her to just stay and try to adjust status after we marry, it is hard for us to be apart, we have spent most of the last 2 years together. But I don't want to do anything overly risky. Again, thanks for the info, I really appreciate it.

The only risk is that if she admits that she's going to get married in the US then the CBP officer may demand overwhelming proof that she has ties in Brazil that will compel her to return before her authorized stay expires. If the CBP officer has the slightest inkling that she may attempt to adjust status after her marriage then he'll turn her around and put her on a plane back to Brazil. The risk of this happening is pretty high, which is why some people are tempted to lie about their intent. If they are caught in their lie then the consequences are disastrous.

She can still return to visit after the wedding, but the risk of being turned away will be the same. Each time, they will be suspect she might intend to stay and adjust status, and she'll need to convince them that she's not going to. Some people have said that having evidence that a spousal visa petition has been submitted has actually helped them in this situation because CBP is more inclined to believe they're trying to go through the correct process to immigrate.

Many people have successfully done what you are strongly tempted to do. The risk of getting caught is not high, but the consequences if you are caught are huge. Nobody on this board is going to recommend you take that chance. You'll have to make up your own mind.

[K and L 27]

If you were to go the route of the CR1 visa, my (not a lawyer) advice would be to marry before she returns to Brazil, and begin the proceedings afterwards, so the issue of "intending to immigrate via tourist visa" isn't there. You married, she returned, you filed proper paperwork upon her return, blahblahblah.

If you really want to go the route of marrying in the US and being able to visit while you're waiting for the visa with minimal risk of being turned away at the border, the K1 may be a better route, as there's nothing stopping her from being in the US on her tourist visa while the K1 is being processed. For instance, file the K1 when she arrives, and if she's there for 3mo, you should be close to a NOA2 approval by the time she leaves. From your NOA2 approval, for Rio, it is about 12 weeks to your K1 interview (L's original interview date was 2mo, 10 days after the NOA2 approval), so she would be able to go home when she was planning, and come back about the time she normally would - but this time, for good. Marry quickly and file your I485 AOS/131 AP/765 EAD quickly, and she should be able to return to Brazil in about 3 months should she wish to, and about 3 months after that, she probably will have her green card and will be able to go back and forth between here and Brazil as the two of you wish/can afford.

Edited October 5, 2010 by K and L

[Ryan H 3,812]

Well, I have started getting everything together for the K-1, and have all the documents downloaded and starting to fill them out. But now, I am having 2nd thoughts again. My fiancee wants to come for another visit in November and bring her daughter and her daughters new husband to meet me. She wants to stay for the holidays, maybe 2-3 months in all, and so now we are thinking about just getting married while she is her and going for the CR-1 instead of the K-1. It looks to be a lot cheaper and maybe even simpler. Anyone have any advice? I know I have to make up my mind and get rolling on this. Is it ok to get married here on the tourist visa as long as she does not overstay and we file everything properly?

IMO: If you choose to get married on her next visit, she should return to Brazil and you can send the I-130 the same day she arrives back in Recife. I do not recommend trying to adjust status after marrying on tourist visa.

You have already started to gather required documents for submission of a I-129F so it will be easy to put together an I-130 packet should you decide to go the CR-1 route.

I found the K1 process to be more complicated than I anticipated (trust me, I did not think it was going to be easy to begin with). To make a long story short, the K1 process was not working for us (and I had not sent paperwork and our case was straightforward) so a change in course was made.

[Journeyer 17]

The only risk is that if she admits that she's going to get married in the US then the CBP officer may demand overwhelming proof that she has ties in Brazil that will compel her to return before her authorized stay expires. If the CBP officer has the slightest inkling that she may attempt to adjust status after her marriage then he'll turn her around and put her on a plane back to Brazil. The risk of this happening is pretty high, which is why some people are tempted to lie about their intent. If they are caught in their lie then the consequences are disastrous.

She can still return to visit after the wedding, but the risk of being turned away will be the same. Each time, they will be suspect she might intend to stay and adjust status, and she'll need to convince them that she's not going to. Some people have said that having evidence that a spousal visa petition has been submitted has actually helped them in this situation because CBP is more inclined to believe they're trying to go through the correct process to immigrate.

Many people have successfully done what you are strongly tempted to do. The risk of getting caught is not high, but the consequences if you are caught are huge. Nobody on this board is going to recommend you take that chance. You'll have to make up your own mind.

Well, I was only saying that I am tempted to ask her to remain here and change status, because time apart is just putting our life on hold. We certainly are NOT planning on trying to change her status while she is here. If she manages to come back on her tourists visa next month, and IF we get married before she leaves, I will begin the CR-1 filing process. Hopefully then, there would be no risk of any type of fraud or any other problems. I am not sure how true this is, but I have also read in a few other sites, not there, that if you do this, you should not marry any less than 60 after the time of the visiting fiancees arrival. Have you heard anything regarding that?

[Journeyer 17]

IMO: If you choose to get married on her next visit, she should return to Brazil and you can send the I-130 the same day she arrives back in Recife. I do not recommend trying to adjust status after marrying on tourist visa.

That is exactly what I am thinking of doing. We have no intention of marrying and then trying to change her status while she is here. The intention of her visit is actually to arrive here and then go to meet her daughter, who is arriving here from Sao Paulo for her honeymoon in NYC, and then to come back here with her daughter and daughters husband so that they can meet me. If we happen to decide to get married after that, then she will return to Brazil and I will start the CR-1 process. I would not think that puts us at risk of fraud, but I want to make sure. The K-1 process, to me, looks to be a lot more cumbersome and expensive. Also, with the CR-1, it appears she would arrive back here and not need to worry about change of status, and hopefully I could visit her in Brazil and meet the rest of her family while we are waiting.

[Journeyer 17]

If you were to go the route of the CR1 visa, my (not a lawyer) advice would be to marry before she returns to Brazil, and begin the proceedings afterwards, so the issue of "intending to immigrate via tourist visa" isn't there. You married, she returned, you filed proper paperwork upon her return, blahblahblah.

That is exactly what I am thinking. I would surely hope that if she arrives here next month, we get married in maybe Jan / Feb, she returns and then I immediately start the CR-1 process that would not put us at risk of fraud. We definitely have no intention of her just staying here and trying to change status. Of course I am tempted because I hate the time we spend apart, but that in no way means I would actually try it. Besides the risk, she has business to attend to in Brazil next spring and remaining here during that time is not a realistic option for her. I will also be able to visit her in Brazil next year while we wait, now that I actually have paid vacation time, if that is allowed while the CR-1 is processing.

[JimVaPhuong 4,863]

That is exactly what I am thinking of doing. We have no intention of marrying and then trying to change her status while she is here. The intention of her visit is actually to arrive here and then go to meet her daughter, who is arriving here from Sao Paulo for her honeymoon in NYC, and then to come back here with her daughter and daughters husband so that they can meet me. If we happen to decide to get married after that, then she will return to Brazil and I will start the CR-1 process. I would not think that puts us at risk of fraud, but I want to make sure. The K-1 process, to me, looks to be a lot more cumbersome and expensive. Also, with the CR-1, it appears she would arrive back here and not need to worry about change of status, and hopefully I could visit her in Brazil and meet the rest of her family while we are waiting.

Yeah, it's called the 30/60/90 day rule. There was a time when USCIS would presume that someone who attempted to adjust status within 30 days of arriving in the US was presumed to have preconceived intent. Between 30 and 60 days it was not presumed, but strongly suspected. Between 60 and 90 days it was not suspected unless there was evidence of it. After 90 days they didn't even look for evidence. This rule isn't written in the Field Adjudicators Manual, but it was well known to be informal policy by many immigration lawyers. The rule doesn't really exist anymore. Because of those BIA precedent cases, USCIS doesn't routinely deny for preconceived intent anymore, so they don't have a formal policy for when it should be presumed or not presumed. They always look for evidence of it when the applicant is adjusting from a non-immigrant visa that doesn't normally allow for intent, such as a B2. If they find the evidence, then they look for any misrepresentation made by the intending immigrant regarding their intent.

This risk doesn't exist with a K1, even though it's a non-immigrant visa, because the intent to immigrate is specifically allowed. It doesn't exist with a CR1 because it's an immigrant visa.

[Journeyer 17]

This risk doesn't exist with a K1, even though it's a non-immigrant visa, because the intent to immigrate is specifically allowed. It doesn't exist with a CR1 because it's an immigrant visa.

I think I am clear on that, but just to be sure, you are saying that there is not a risk of fraud if we marry and she returns before her allowed time(6 months), and then I start the CR-1 while she is in Brazil?

[Ryan H 3,812]

If we happen to decide to get married after that, then she will return to Brazil and I will start the CR-1 process. I would not think that puts us at risk of fraud, but I want to make sure.

I don't think there would be any fraud risk at all. The fact that she returned to Brazil after the wedding and you filed for a CR-1 visa would show authorities that you want to do things the right way.

The K-1 process, to me, looks to be a lot more cumbersome and expensive. Also, with the CR-1, it appears she would arrive back here and not need to worry about change of status, and hopefully I could visit her in Brazil and meet the rest of her family while we are waiting.

You are correct, there is no need to do AOS with a CR-1 since it is an immigrant visa. Her passport would receive a green card stamp when she arrived and the actual card would arrive shortly thereafter. I too think the K1 process is more cumbersome and the wait times between K1 and CR-1 are similar these days.

You can go to Brazil and visit her while the CR-1 process is working itself out. You will need to get a tourist visa before going there.

Edited October 5, 2010 by Ryan H