Section 212(e) and applying for spousal Visa

[cup1981 5]

Ok, I am brand new and first I must say, this site has a lot of great info.

So I met my wife while she was an exchange student in the US from Indonesia. She was on a J-1 visa and is subject to the 212(e). We got married, got pregnant (expecting January 2011) and moved to Indonesia to live out the 2 years together. Well, we have now been here for about 5 months and we are getting antsy to get back to the US and we do not want to stay here any longer than we are required.

What we are wondering, is can we apply for a spousal Visa (K-3, CR-1) while she is still within the two years and then go to the US after the two years is up or do we have to wait until the 2 years is up then apply and wait even longer for the approval??? We really want to get us and our son out of here as quickly as possible, it is way to corrupt and backwards to raise a family here for too awful long lol.

Please help . Any other advise would be greatly appreciated!

[Samoray 165]

Ok, I am brand new and first I must say, this site has a lot of great info.

So I met my wife while she was an exchange student in the US from Indonesia. She was on a J-1 visa and is subject to the 212(e). We got married, got pregnant (expecting January 2011) and moved to Indonesia to live out the 2 years together. Well, we have now been here for about 5 months and we are getting antsy to get back to the US and we do not want to stay here any longer than we are required.

What we are wondering, is can we apply for a spousal Visa (K-3, CR-1) while she is still within the two years and then go to the US after the two years is up or do we have to wait until the 2 years is up then apply and wait even longer for the approval??? We really want to get us and our son out of here as quickly as possible, it is way to corrupt and backwards to raise a family here for too awful long lol.

Please help . Any other advise would be greatly appreciated!

If her visa is not expired yet, you should try to bring her to the US then file for Adjustment of status

Read on it in here http://www.visajourney.com/content/otheraos

Also you can ask questions about Adjustment of status in here http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

Cr1, or K3 could take from 6 months to a year and it varies

Good Luck

[cup1981 5]

If her visa is not expired yet, you should try to bring her to the US then file for Adjustment of status

Read on it in here http://www.visajourney.com/content/otheraos

Also you can ask questions about Adjustment of status in here http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

Cr1, or K3 could take from 6 months to a year and it varies

Good Luck

Her Visa has already expired.

My main concern is the 212(e). Can I apply for the spouse visa while we are within the 2 years of residency requirement, or do we have to wait until the 2 years is over, then apply? I am hoping that we can apply beforehand and they either post-date the visa for after the 2 years or not issue it until the 2 years is up.

[Harpa Timsah 13,258]

If her visa is not expired yet, you should try to bring her to the US then file for Adjustment of status

Read on it in here http://www.visajourney.com/content/otheraos

Also you can ask questions about Adjustment of status in here http://www.visajourney.com/forums/forum/130-adjustment-of-status-from-work-student-tourist-visas/

Cr1, or K3 could take from 6 months to a year and it varies

Good Luck

No No No!

You cannot use a non-immigrant visa to move to the US with intent to immigrate. That is fraud. They are out of the country now, so they cannot plan to move to the US and AOS. They need a CR-1 visa.

OP, I am not sure about your question regarding J visas. BUT, you will need a CR-1 visa, the K-3 is dead. If you are a resident of Indonesia (The USC), you will want to take advantage of Direct Consular Filing (DCF) which will shave months off the process. You would file directly through your nearest consulate. You could also consider getting a J-1 waiver of home residency requirement. (This exists but I don't know anything about it).

Good luck and congrats on your baby!! (You'll also want to file a Consular record of birth abroad for your child once it is born).

I assume you can start the process before the 2 years is up with the plan to move once the 2 years are over, but I am sure some people with J visa experience will chime in on that with real knowledge. Good luck!

Edited November 10, 2010 by Harpa Timsah

[cup1981 5]

Thanks Harpa,

I couldn't remember the name of the DCF when I originally posted lol. Yeah, we are planning to go to Jakarta to my Embassy and file there, once I get my KITAS (1 year stay permit). I cannot use my Embassy here until I get that, and it should be done in a few days, we are actually leaving at 4AM tomorrow to pick up the last bit of paperwork at the Capitol City.

Hopefully, someone can give me a definite answer on the 212(e) and filing prior to the 2 years. I --like you-- assume that I can and that they would just post-date the visa or not issue it until the 2 years is up.

The J-1 waiver is out of the question as she was sponsored by fullbright and they outright said that they nor the DOS would approve a waiver. As did our immigration attorney, it is rare when an attorney turns down money, so I took his word for it lol.

Thanks for the advise on CRB for my future son. We have already gotten all the needed document from the internet, we are just awaiting the birth.

Edited November 10, 2010 by cup1981

[Samoray 165]

No No No!

You cannot use a non-immigrant visa to move to the US with intent to immigrate. That is fraud. They are out of the country now, so they cannot plan to move to the US and AOS. They need a CR-1 visa.

OP, I am not sure about your question regarding J visas. BUT, you will need a CR-1 visa, the K-3 is dead. If you are a resident of Indonesia (The USC), you will want to take advantage of Direct Consular Filing (DCF) which will shave months off the process. You would file directly through your nearest consulate. You could also consider getting a J-1 waiver of home residency requirement. (This exists but I don't know anything about it).

Good luck and congrats on your baby!! (You'll also want to file a Consular record of birth abroad for your child once it is born).

I assume you can start the process before the 2 years is up with the plan to move once the 2 years are over, but I am sure some people with J visa experience will chime in on that with real knowledge. Good luck!

I guess if she had business in the US other than being married to a USC, it would not be a fraud, cause she would have to go anyway. but as it expired then DCF CR1 like Harpa Timsah mentioned

Good Luck

[milimelo 4,477]

Thanks Harpa,

I couldn't remember the name of the DCF when I originally posted lol. Yeah, we are planning to go to Jakarta to my Embassy and file there, once I get my KITAS (1 year stay permit). I cannot use my Embassy here until I get that, and it should be done in a few days, we are actually leaving at 4AM tomorrow to pick up the last bit of paperwork at the Capitol City.

Hopefully, someone can give me a definite answer on the 212(e) and filing prior to the 2 years. I --like you-- assume that I can and that they would just post-date the visa or not issue it until the 2 years is up.

The J-1 waiver is out of the question as she was sponsored by fullbright and they outright said that they nor the DOS would approve a waiver. As did our immigration attorney, it is rare when an attorney turns down money, so I took his word for it lol.

Thanks for the advise on CRB for my future son. We have already gotten all the needed document from the internet, we are just awaiting the birth.

A supervisor of mine was in a similar position - as a USC he was in a Balkans office and his wife originally from NIS joined him while under the 2-yr HRR. We had a dinner once with the consular officer and other embassy staff and I got to ask this question on 2yr HRR as I just fulfilled it and he was interested in it too. They told him that when they're within months of completing the requirement they can file DCF, not earlier.

Don't know if this helps you, but just wanted to share info I have.

[cup1981 5]

milimelo,

That does help actually. As long as I can apply a few month before the 2-year HRR I am happy. I just don't want to have to wait until it is through then apply and be stuck here for another 6 months to a year while it processes lol.

Hopefully there will be more confirmation from other people regarding this...

[cup1981 5]

I found a post from earlier this year that answered all of my concerns.

Yes, I can file before the 2 year HRR. It is actually recommended. If they schedule the Visa interview before it is up, just reschedule the interview for after.

[Deputy Purple 1,294]

I guess if she had business in the US other than being married to a USC, it would not be a fraud, cause she would have to go anyway. but as it expired then DCF CR1 like Harpa Timsah mentioned

Wrong....

Unless she has a valid Visa that allows duel intent it is illegal to enter the US on a non-immigrant Visa with the intent to adjust to immigrant status.

[Samoray 165]

Wrong....

Unless she has a valid Visa that allows duel intent it is illegal to enter the US on a non-immigrant Visa with the intent to adjust to immigrant status.

It's good to know that information

but

i have a friend with a valid student visa to the US, he went back to visit Egypt, he married an American citizen, he has not finished his studies yet in the US, he will have to return to the US to complete college and he might adjust or not, it's up to him right ? or he could be denied at POE for marrying an American citizen regardless of his studying intentions ?

and would they know by themselves that he married an American citizen or he has to admit that at POE

What do you think the outcome would be

[Deputy Purple 1,294]

It's good to know that information

but

i have a friend with a valid student visa to the US, he went back to visit Egypt, he married an American citizen, he has not finished his studies yet in the US, he will have to return to the US to complete college and he might adjust or not, it's up to him right ? or he could be denied at POE for marrying an American citizen regardless of his studying intentions ?

and would they know by themselves that he married an American citizen or he has to admit that at POE

What do you think the outcome would be

If he is asked about his wife and he conceals information then later files for AOS they can charge him with material misrepresentation because knowing that he is married to a US Citizen could affect their decision to grant him entry.

Example: at POE he is questioned, "Are you Married?" and he answers "No". Later he files AOS and uses a Marriage Certificate that predates his entry then he is guilty of Material Misrepresentation and can be banned from entry for his lifetime. There was a recent case her on VJ where a Japanese woman told CBP that she wasn't yet married to her USC Husband even though they intended for her to enter on her B Class Visa and AOS. She decided to not AOS as CBP records such entry questions & answers and it looked like they were setting her up to get hit with misrepresentation if she tried.

CBP seems to have a nose for these things...