J-1 and K-1

[JaseLynn 0]

I have a question as to what to do now. My fiancee and I have everything ready and about to send in packet 3 for the K-1 visa. After looking at the DS-230 and seeing the 2 year HRR I checked her visa and find she is under that rule. Come this Sept. she will be out of the U.S. for a year. Now my main question is what to do. I've read about the HRR and about getting a waver but to me it seem's highly unlikely that she can get a waver. We have one year down and only one to go so my thoughts are to stay with the K-1 and finish the year out. Should we stop the K-1 for now and then start it back up next year or should we just go ahead and finish the K-1 paper work? If we are approved for the K-1 will it still be valid when she comes over next year? I wouldn't think so because of the 90 days. She was thinking she could just come over here get married and then go back home till the 2 year HRR is finished but I told her they wouldn't let her in the country in the first place because of the 212(E) visa. And if she was to go back home without filing for AOS she wouldn't be allowed back in the country and then we'd have to go the K-3 route. Any and all input is welcome.

[canadian_wife 1,822]

If the 2 year HRR is not fulfilled, the visa will not be issued

It is up to you on how you'd like to proceed

Good luck

[JaseLynn 0]

How do I stop the K-1 and if I do; do I have to start over?

[canadian_wife 1,822]

Can you notify the consulate of your decision?

Yes, you'll have to start over and no, you will not save any time

Good luck

PS - have you fully investigated the 2 year HRR waiver?

[JaseLynn 0]

She has a lawer helping her to look into it fully but from what I read about the waver I just don't see it happening. So if we continue the K-1 she will be denied at the interview? Her lawer is telling her to go a head with the K-1 but I dont think thats a good idea. I guess I'm falling into a place that not many people know what to do.

[Danielb4643 0]

I am filling out packet three Medical etc and have come across this.

I left the US on a J1 in Oct 2009, I was hoping to continue the process and just hope that they approve it but don't ISSUE it until after Oct 2011 . .

Maybe you could continue with the process but just VERY SLOWLY so that you tie in the interview with the fulfilment date of the HRR.

Under what grounds does the lawyer recommend you continue the process- did he offer you any legal words of advice and/or reassurance?

[garfield529 47]

Push or Darnell know the delay timeframe allowed, but you should be able to delay your interview, just not exactly sure on how long you can do this for. You can delay sending back the P3 and then request a delay on the interview, which might be able to get you stretched out to the full second year. Let's determine this before you squash the application in process; no point in throwing away that money until you know for sure.

[JaseLynn 0]

I guess this is a subject most don't know. Was thinking I'd get a little more than this.

[Danielb4643 0]

I guess this is a subject most don't know. Was thinking I'd get a little more than this.

Depends on how much faith you have in your lawyer!

1. Cancel the K1 and begin from scratch when the time comes

2. delay the process until Sept 2012

3. Apply for a waiver

4. Continue on from lawyers instructions

This is an area not many people come across- I called the US Embassy and they said if your petition passes the USCIS stage then don't worry about it.

[JaseLynn 0]

I know, I was just hoping for a little more opinions but thats ok.

Thanks for the advice.

Edited July 20, 2011 by JaseLynn

[JaseLynn 0]

I really don't know why I asking this but what are the chances of someone getting a Visa to come to the US while their K-1 is on hold for a year?

Not really expecting anyone to know this much less answer it.

[JaseLynn 0]

=Never mind, I've found my answer.

[Rich&Vero 14]

I've seen this questioned addressed on legal forums a couple of times. In both cases it was stated that a K-1 visa is impossible to get until the 2-year home residency requirement was met. However, after reading a bit of the INA Act, I don't think this is completely accurate.

Sec. 212(b)(regarding J-1 Visas) (e) No personadmitted under section 101(a)(15)(J) or acquiring such status after…shall be eligible to apply for an immigrant visa, or for permanent residence,or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)( L) until it is established thatsuch person has resided and been physically present in the country of hisnationality or his last residence for an aggregate of a least two yearsfollowing departure from the United States…

What that says to me is that your fiancee is ineligible for H or L visas but is completely eligible to receive a K-1 visa and re-enter the US. However....

Sec. 245. [8U.S.C. 1255] (regarding adjustment of status)

©1/ Other than an alien having an approvedpetition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicableto…

(8) any alien who wasemployed while the alien was an unauthorized alien, as defined in section <a href="http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-8501.html#0-0-0-4081">274A(h)(3) , or who has otherwise violatedthe terms of a nonimmigrant visa.

That implies that, once here, she still cannot apply for AOS as the terms of the J-1 visa would have been violated. The 2-year residency must be served in the country of citizenship or the last country of permanent residence prior to coming to the US on the J-1 visa. I would suggest looking into the possibility of a waiver.

Edited July 23, 2011 by Rich&Vero