K3 - Can I Petition Even If My Wife Was Brought As Illegal Child (8 Months Old)?

[jackbauer2789 0]

I married my partner in the United States. We have a 3 year old daughter together who was born in Los Angeles and is a US Citizen. My wife was brought over illegally as a child, but has lived her entire life here and has not returned to Mexico. We understand that she would have to leave the country in order to come back legally because even though she was brought over as a baby, she entered the country illegally regardless.

My question is: Even if she currently lives in the US with our daughter and me, can we still go through the K3 petition process as if she lives over in Mexico? I imagine that she would need to return to Mexico for the Interview portion, but I want to make sure that she isn't "disqualified" because our daughter was born in the US and our marriage certificate is in the US. I know we would have to provide that for proof of marriage so does anyone know if that has been/would be an issue? Has anyone out there been in a similar circumstance and petitioned for the K3 visa?

This is how I imagine things "would" go for us. Please provide any feedback possible as I am very new to investigating this process and would really appreciate assistance from those who may be a lot more informed:

1. Follow first steps to file forms, wait for Notice Of Action, submission to NVC/Consulate, etc. = Wife Stays In Country With Us or Does She Have To Leave From The Start Of The Process?

2. We are notified that the process has been moved to the NVC/Consulate portion (awaiting background checks/scheduling of Interview)= Can my wife go back to Mexico at this point?

*If its ok for my wife to go back during the NVC/Consulate portion, she would have to stay until the K3 is approved, provided, and she can legally come back to the US correct? I imagine this could last a few months which is fine, but it would be difficult if she had to leave from the beginning of the process!

One last question: If we are indeed allowed to submit the petition and they notice that she is here in the US, do they provide us with a date by which she has to leave and return to Mexico? This would be ok too as long as it means we are indeed elligible for the K3!

Thank you in advance to anyone who can provide any information/answers!!! This is a very scary process for our family and I want it to be done right. I am so glad there is a community that is out to assist with these complicated processes.

[ATPEACE 43]

Once she leaves the US, she will have a 10 year ban. You'll will have to file a wavier. You need to do more reading on this.

Go to the wavier forum: http://www.visajourney.com/forums/forum/113-waivers-i-601-and-i-212-and-administrative-processes-221g/

[Darnell 8,478]

k-3 visa not so easily attainable - see http://www.visajourney.com/news/2010/02/07/department-of-state-to-close-k-3-visas-if-i-129f-and-i-130-petitions-approved-and-received-together/

[Ryan H 3,812]

OP: You may want to seek counsel from an attorney on this. I believe you can concurrently file the I-130 and I-485 (the latter form being for adjustment of status). USCIS will either approve the AOS and forgive the overstay or deny the AOS and order your wife deported. I'll say it again, you have a very complicated situation and seeking counsel from an attorney who is experienced in situations similar to yours is the best suggestion I can make to you.

Edited July 9, 2011 by Ryan H

[ATPEACE 43]

The wife can not adjust her status within the US, because she has NO status to adjust from, she came here illegally. The folks over at http://immigrate2us.net/forum/forum.php can give you a better idea of how the entire process should be handle in situations such as yours. They are all dealing with this same situation.

http://immigrate2us.net/forum/forum.php

Edited July 9, 2011 by ATPEACE

[Deputy Purple 1,294]

OP: You may want to seek counsel from an attorney on this. I believe you can concurrently file the I-130 and I-485 (the latter form being for adjustment of status). USCIS will either approve the AOS and forgive the overstay or deny the AOS and order your wife deported. I'll say it again, you have a very complicated situation and seeking counsel from an attorney who is experienced in situations similar to yours is the best suggestion I can make to you.

WRONG!!!

The key issue here is illegal entry (EWI) which isn't forgiven or overlooked for any reason.

She will have to leave the US for Consular Processing in Mexico. She can wait it out here in the US after you file and return shortly before her appointments in Mexico.

At the interview she will be denied for the Illegal Presence but Mexico has a fast track Waiver Pilot Program so she should have the waiver prepared for submission at her interview.

I would recommend going to http://www.imigrate2us.net, Waivers & Mexican EWI are their Bread & Butter so to speak.

BTW, K-3 is dead, you'll be going for an IR-1 Visa (assuming you've been married more than 2 years otherwise CR-1).

Edited July 9, 2011 by Bob 4 Anna

[Ryan H 3,812]

BTW, K-3 is dead,

Not quite, the provision in the LIFE Act that created the K3 was never repealed and there have been some reports that K3 petitions that have been sent to the NVC are arriving ahead of the I-130 which would allow them to go forward.

OP: Except for the part about talking to an attorney (click on the links provided in the other replies), disregard everything else I said in that other post.

Edited July 9, 2011 by Ryan H

[jackbauer2789 0]

Thank you all for your patience and responses as we are very new to this. I did hear before that she would require a Waiver so thank you for confirming this. We just want to thouroughly understand the process so we don't jump into this endeavor to find out she is banned for 10 years. I have bookmarked all the links provided and will be doing a lot of additional reading and posting. I heard that the Waiver process could take anywhere between a few months to 3 years, is this accurate (I assume that it would be much longer if the Waiver is denied for any reason)? It sounds like not all hope is lost as it will be possible to go through with the petition; it would just take longer, include more steps, and its a lot riskier in our situation. When it comes to contacting an attorney, does anyone have any advice (where to look, questions to ask, etc.) on how we should go about looking for and selecting the appropriate legal rep who is experienced with situations like this?

I want to thank you all again for providing me with the links and all the information you passed on. My family really appreciates it.

[ATPEACE 43]

Thank you all for your patience and responses as we are very new to this. I did hear before that she would require a Waiver so thank you for confirming this. We just want to thouroughly understand the process so we don't jump into this endeavor to find out she is banned for 10 years. I have bookmarked all the links provided and will be doing a lot of additional reading and posting. I heard that the Waiver process could take anywhere between a few months to 3 years, is this accurate (I assume that it would be much longer if the Waiver is denied for any reason)? It sounds like not all hope is lost as it will be possible to go through with the petition; it would just take longer, include more steps, and its a lot riskier in our situation. When it comes to contacting an attorney, does anyone have any advice (where to look, questions to ask, etc.) on how we should go about looking for and selecting the appropriate legal rep who is experienced with situations like this?

I want to thank you all again for providing me with the links and all the information you passed on. My family really appreciates it.

Laurel Scott Legal counsel at the link that was provided to you, gives free on-line summary advise every Wednesday. The folks over there would best best to answers any additional questions you may have regarding your situation.

The folks over there will be you and your wife on the correct path.

Good Luck.

[Varvaro 0]

Hello, it sounds like we have the exact same case. My husband was brought over here illegally when he was just 6 years old and has been here ever since. We married here in the US and filed for a k-3 visa. The last time we heard from USCIS our petition was approved and the case was referred to NVC. Since then we have yet to hear anything from NVC and our last letter from USCIS tells us to wait 30 days before contacting NVC about our case.

It sounds like you filed before I did so I'd like to ask you a few questions. What comes next after this and what kind of advice have you received from attorneys? Will your wife receive a ban and does she qualify for a waiver? Any help or guidance is appreciated.

Thanks you and I hope all goes well with your application.

[canadian_wife 1,822]

Jack and Varvaro will both need this link

http://www.visajourney.com/wiki/index.php/EZGuideSpouse

Since both your spouses have unlawful presence in the US after the age of 18 for more than 180 days, count on a ban - it is almost a certainty. You both will need to begin working on the waiver packet as I believe CDJ allows the waivers to be submitted at the denial at the interview. A lawyer is almost critical for waiver packets

Try scottimmigration.com - she has free chats on wednesday for immigration help

also - immigrate2us.net specializes in this sort of thing

Good luck

[jackbauer2789 0]

Hello everyone and thank you once again. Fortunately, because of all the advice and the links everyone provided, I was able to read on the process that was appropriate for our situation. I now understand the waiver and the hardship letter that will most likely determine whether it is approved or denied. In my reading on immigrate2us.net, I heard of the Parole In Place option that has opened up in the last year for those active and serving in the military. Although I have not counted my chickens before they have hatched, I am excited because my career path was to join the Airforce, but I did not want to leave my wife out of the picture if she was not able to move to my assigned base with me. Now that I know there are people serving who also have a spouse that is illegal, I felt better dicussing the option with her and we will be speaking with an Airforce recruiter on Friday! The honest truth is that I always wanted to join because of all the learning opportunities, but I let the fact that my wife is illegal discourage me so I got a sys admin job at Toyota HQ instead. I hope it doesn't come off like I want to join just to get my wife legal. Fingers crossed!

Also, thank you for the advice about the legal chat on Wednesday. I will attempt to make it in during my lunch at work and will have my wife on there as well because we want to take all the advice we can get! I wish I could meet each and every one of you to thank you and shake your hand in person. This community is the best!

[Darnell 8,478]

*** moving to General Immigration forum, is not K-3 visa topic ***