Filed for K1 with IMBRA waiver request

[payxibka 10,047]

Has anyone gotten their NOA2 when filing a second k-1 or k-1 with waiver??

Yes there are a couple reported. aussiewench started a thread to track these but I cannot find it

[Turboguy 6]

I wish you the best of luck and I hope you keep us posted. I will be applying for a K-1 with a waver myself in a month. The K-1 process is nerve wracking enough without the waver being thrown in.

In my case it will be because it has been less than 2 years since I filed a previous K-1. I could wait 90 days and skip the waver but who wants to waste 90 days. My first fiancee when back to Russia in 89 days.

[jsnearline 2]

No offense to lion_lionness, but in a case where the petitioner entered into their previous marriage less than a year ago, got divorced AND their ex already received a green card, I would think that filing for a second K-1 so fast would raise some big red flags at USCIS, even with a waiver. I would think CIS would take a kinder view of cases where someone had previously applied for a K-1, but either the visa was never issued, or the couple separated before filing for adjustment of status.

[lion_lioness 0]

No offense to lion_lionness, but in a case where the petitioner entered into their previous marriage less than a year ago, got divorced AND their ex already received a green card, I would think that filing for a second K-1 so fast would raise some big red flags at USCIS, even with a waiver. I would think CIS would take a kinder view of cases where someone had previously applied for a K-1, but either the visa was never issued, or the couple separated before filing for adjustment of status.

No offense taken. I only need wait another 6 months and I wouldn't need the waiver because the first k1 was approved in June 2005. Things happen and with the proof etc, I think it will be fine. As I mentioned before, I will not be filing before January (need to gather addl info) and will keep everyone posted.

thanks for the feedback

[1HappyGuy 45]

Lion_Lioness, I don't think the USCIS is interpreting the law properly. They seem to be looking at the two applications as a final total and the two year period is not being recognized. Please look to this link for their interpretation.

http://www.uscis.gov/files/pressrelease/IMBRA072106.pdf

You specifically want to look to part B. Limitations.

In my opinion they are interpreting the law incorrectly as it clearly states that you must have had two applications approved within two years for a waiver to be required. They did not consider the two year period in their interpretation at all.

So, you should probably be prepared to file a waiver.

[PurrSuede 0]

Lion_Lioness, I don't think the USCIS is interpreting the law properly. They seem to be looking at the two applications as a final total and the two year period is not being recognized. Please look to this link for their interpretation.

http://www.uscis.gov/files/pressrelease/IMBRA072106.pdf

You specifically want to look to part B. Limitations.

In my opinion they are interpreting the law incorrectly as it clearly states that you must have had two applications approved within two years for a waiver to be required. They did not consider the two year period in their interpretation at all.

So, you should probably be prepared to file a waiver.

As I understand that document, the section you are referring to:

B. Filing Limitations

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.

According to that there are TWO scenarios that require a waiver

1) filed TWO or more K-1's any time in the past

2) previous had ONE K-1 visa approved within two years prior to filing of the current petition

Do you have a source of what ~exactly~ the law says in regard to "waivers"?

-- Dan

[1HappyGuy 45]

If this link works it should take you directly to the part of the law that creates IMBRA. The bill is known as HR 3402. The specific section is pretty far into it and is titled "Subtitle D - International Marriage Broker Regulation Act".

http://thomas.loc.gov/cgi-bin/query/F?c109...YEUUeU:e344037:

This is a link to a service that contains all congressional bills whether from the House or Senate. All bills in congress are preceded by either HR or SB which is House Resolution or Senate Bill.

The way that I read this law as written, the petitioner is to required to submit a waiver if they have had two applications approved within two years. I wrote a similar thread a while ago but don't know where it is now. My office is a mess right now and I can't find my copy of the law.

But, if you read this law and then look at the interpretation the USCIS issued in July you will shake your head and wonder how they got there. The way they are interpreting it now, if you had two approved applications within 10 years, then you are likely unable to bring in another fiancee. The consideration of a past approval over two years from your current or expected application does not seem to be part of their interpretation.

I did notice that their are a few amendments to the VAWA law pending, but didn't have time to see if any are related to IMBRA. Sorry.

[payxibka 10,047]

The way that I read this law as written, the petitioner is to required to submit a waiver if they have had two applications approved within two years. I wrote a similar thread a while ago but don't know where it is now. My office is a mess right now and I can't find my copy of the law.

Here is the law right out of HR 3402

(2)(A) Subject to subparagraphs (B) and ©, a consular officer may not approve a petition under paragraph (1) unless the officer has verified that--

`(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens; and

`(ii) if the petitioner has had such a petition previously approved, 2 years have elapsed since the filing of such previously approved petition.

As I read it

a waiver is required when you have filed two or more petitions. In other words on your third try regardless of time lapse

Unless

You had one petition approved and less than two years have lapsed then a waiver is required.

Edited November 10, 2006 by fwaguy

[lion_lioness 0]

Lion_Lioness, I don't think the USCIS is interpreting the law properly. They seem to be looking at the two applications as a final total and the two year period is not being recognized. Please look to this link for their interpretation.

http://www.uscis.gov/files/pressrelease/IMBRA072106.pdf

You specifically want to look to part B. Limitations.

In my opinion they are interpreting the law incorrectly as it clearly states that you must have had two applications approved within two years for a waiver to be required. They did not consider the two year period in their interpretation at all.

So, you should probably be prepared to file a waiver.

Happy guy, I wrote "IF I WAIT ANOTHER SIX MONTHS," but since I"m not it is clear to me I need the waiver. However, you can never be too sure, that's why I wanted to post here to in case I missed something. I really appreciate your help and support. USCIS told me that I would need a waiver, so I think they are telling me the right thing - yes?

The way that I read this law as written, the petitioner is to required to submit a waiver if they have had two applications approved within two years. I wrote a similar thread a while ago but don't know where it is now. My office is a mess right now and I can't find my copy of the law.

Here is the law right out of HR 3402

(2)(A) Subject to subparagraphs (B) and ©, a consular officer may not approve a petition under paragraph (1) unless the officer has verified that--

`(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens; and

`(ii) if the petitioner has had such a petition previously approved, 2 years have elapsed since the filing of such previously approved petition.

As I read it

a waiver is required when you have filed two or more petitions. In other words on your third try regardless of time lapse

Unless

You had one petition approved and less than two years have lapsed then a waiver is required.

Thanks Dan and Fwaguy!!!

[PurrSuede 0]

The way that I read this law as written, the petitioner is to required to submit a waiver if they have had two applications approved within two years. I wrote a similar thread a while ago but don't know where it is now. My office is a mess right now and I can't find my copy of the law.

Here is the law right out of HR 3402

(2)(A) Subject to subparagraphs ( B ) and ( C ), a consular officer may not approve a petition under paragraph (1) unless the officer has verified that--

`(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens; and

`(ii) if the petitioner has had such a petition previously approved, 2 years have elapsed since the filing of such previously approved petition.

As I read it

a waiver is required when you have filed two or more petitions. In other words on your third try regardless of time lapse

Unless

You had one petition approved and less than two years have lapsed then a waiver is required.

I believe the reason 1HappyGuy challenges this is the use of the word "and" in the way the law was written.. the way the USCIS is interpreting it, it is either condition (i) ~or~ (ii) not both (i) and (ii)

But we have to live by USCIS' interpretations, though it would be interesting to see if anyone ever challenges their interpretation of this...

-- Dan

[1HappyGuy 45]

Thanks Dan,

That is exactly what I was talking about. Unless someone is willing to challenge the USCIS on their interpretation of the law, we are stuck with their wierd guidelines.

You know this process is hard enough without the USCIS making it more difficult. It's pretty obvious that the articles in the newspapers about IMBRA and their regulations reflect the general bias of a great many. It is unfortunately so typical of our system, the small, unorganized group gets dumped on every time.

John

[payxibka 10,047]

The way that I read this law as written, the petitioner is to required to submit a waiver if they have had two applications approved within two years. I wrote a similar thread a while ago but don't know where it is now. My office is a mess right now and I can't find my copy of the law.

Here is the law right out of HR 3402

(2)(A) Subject to subparagraphs ( B ) and ( C ), a consular officer may not approve a petition under paragraph (1) unless the officer has verified that--

`(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens; and

`(ii) if the petitioner has had such a petition previously approved, 2 years have elapsed since the filing of such previously approved petition.

As I read it

a waiver is required when you have filed two or more petitions. In other words on your third try regardless of time lapse

Unless

You had one petition approved and less than two years have lapsed then a waiver is required.

I believe the reason 1HappyGuy challenges this is the use of the word "and" in the way the law was written.. the way the USCIS is interpreting it, it is either condition (i) ~or~ (ii) not both (i) and (ii)

But we have to live by USCIS' interpretations, though it would be interesting to see if anyone ever challenges their interpretation of this...

-- Dan

I think you are misreading it. It says that the CO cannot approve a petition unless he has verified point (i) and (ii). These are two mutually exclusive situations but he has to verify both not either or.

[LookyWhatIFound 38]

Unless someone is willing to challenge the USCIS on their interpretation of the law, we are stuck with their wierd guidelines.

John

Ok you just woke up some of my hybernating frustrations with the IMBRA Limitations rules.

I have some questions for anyone who has answers:

If you had 2 previous K-1s approved for the same person, and no Visa was ever issued, and outside of the time limitations:

1. Do you need to file a Waiver Request, since it was for the same person? I ask that cause I read a post at VJ that said it may not be required in that case.

2. More of a frustration with USCIS interpretation, why don't they differentiate between an approved K-1 where no Visa was issued and one that had a Visa issued?

3. Are K-3 petitons subject to these IMBRA limitations? In other words, would one have to file a Waiver Request along with a K-3 petition?

[payxibka 10,047]

We need to differentiate between an approved "PETITION" and and approved "VISA". The language in the law says approved "PETITION" and the approval and issuance of an actual visa is moot because that occurs after the PETITION has been approved. Please remember that the I-129F petition is not the application for a "K" type visa, that occurs upon submission of the DS-156. Two very distinct and mutually exclusive processes (other than you are precluded from filing the application without experiencing the petition process).

LookyWhatIFound,

1) Please elaborate on "previous K-1 approved......no visa was ever issued". Do you mean a previously approved I-129F petition?

3) They do not differentiate between a K-1 approved where no visa issued and one that had a visa issued because the line of demarcation is PETITION approval which occurs before visa application.

Ok you just woke up some of my hybernating frustrations with the IMBRA Limitations rules.

I have some questions for anyone who has answers:

If you had 2 previous K-1s approved for the same person, and no Visa was ever issued, and outside of the time limitations:

1. Do you need to file a Waiver Request, since it was for the same person? I ask that cause I read a post at VJ that said it may not be required in that case.

2. More of a frustration with USCIS interpretation, why don't they differentiate between an approved K-1 where no Visa was issued and one that had a Visa issued?

3. Are K-3 petitons subject to these IMBRA limitations? In other words, would one have to file a Waiver Request along with a K-3 petition?

Edited November 11, 2006 by fwaguy

[LookyWhatIFound 38]

We need to differentiate between an approved "PETITION" and and approved "VISA". The language in the law says approved "PETITION" and the approval and issuance of an actual visa is moot because that occurs after the PETITION has been approved. Please remember that the I-129F petition is not the application for a "K" type visa, that occurs upon submission of the DS-156. Two very distinct and mutually exclusive processes (other than you are precluded from filing the application without experiencing the petition process).

LookyWhatIFound,

1) Please elaborate on "previous K-1 approved......no visa was ever issued". Do you mean a previously approved I-129F petition?

3) They do not differentiate between a K-1 approved where no visa issued and one that had a visa issued because the line of demarcation is PETITION approval which occurs before visa application.

Ok you just woke up some of my hybernating frustrations with the IMBRA Limitations rules.

I have some questions for anyone who has answers:

If you had 2 previous K-1s approved for the same person, and no Visa was ever issued, and outside of the time limitations:

1. Do you need to file a Waiver Request, since it was for the same person? I ask that cause I read a post at VJ that said it may not be required in that case.

2. More of a frustration with USCIS interpretation, why don't they differentiate between an approved K-1 where no Visa was issued and one that had a Visa issued?

3. Are K-3 petitons subject to these IMBRA limitations? In other words, would one have to file a Waiver Request along with a K-3 petition?

Yes fwaguy,

I meant previously approved I-129F petitions.

Ok, so if I were to marry my fiance and apply for a K-3 instead, would I have to file the Waiver Request?

Thanks