starting IR-1 application when in the US on a B1/B2

[Mantequilla 0]

Hello Forum,

I am American. My Mexican wife and I were married in Mexico three years ago, and have lived there together since. In June 2013, we entered the US together, her on a B1/B2 visa.

Now, we would like to:

1) Apply for her IR-1 visa

2) Either say in the US, or leave and re-enter, while we are waiting for the visa application to be approved

My questions for the forum are:

a) If the IR-1 process takes around eight months, must we know, at the time when we start the process, where we will be when it is time for the interview?

b) Will she still need to leave the US after six months on a B1/B2 if she has a IR-1 application pending?

c) If she leaves the US while her IR-1 is pending, should she expect to have trouble re-entering with her B1/B2 while the IR-1 is still pending?

d) What else do we need to know??

Thank you for your help!

Ryan and Flor

[vegasbound 83]

You can file the I-130 (IR-1 visa) whenever you are ready but your wife cannot stay in the US. When she entered the US with her B1/B2 visa in June 2013, what did she say to the border agent as her purpose of visiting the US? B1/B2 is a non-immigrant visa and she cannot use the visa to enter the US with the intention of becoming an immigrant. That is visa fraud and will carry a US entry ban.

However, after you file the I-130, she can still enter the US with her B1/B2 visa depending on her ties situation in Mexico (whether she has a job, a lease, anything else that ties her to Mexico) at the time of entry during the 8 or so months for the IR-1 visa to be processed.

[Penguin_ie 5,995]

a) Interview always takes place abroad for the IR-1, so it'll be in Mexico.

b) Yes, the rules of the tourist visa still applies.

c) Probably not. Remember she can VISIT the US, she cannot live or work here.

d) Remember that you, as a US citizen, must file US taxes even when living abroad- if you have not done so, backfile now. If you plan on staying with her in Mexico, you will need to financially sponsor her on assets or have a US based co-sponsor.

[Mantequilla 0]

a) Interview always takes place abroad for the IR-1, so it'll be in Mexico.

b) Yes, the rules of the tourist visa still applies.

c) Probably not. Remember she can VISIT the US, she cannot live or work here.

d) Remember that you, as a US citizen, must file US taxes even when living abroad- if you have not done so, backfile now. If you plan on staying with her in Mexico, you will need to financially sponsor her on assets or have a US based co-sponsor.

Hi Penguin,

Do you know if the interview can take place in a third country, besides the US or Mexico?

Also, thank you for bringing up the tax issue. I filed last year, for the first time in many years. Backfiling would be complicated, because I have not really had an income. Should I expect this to be a problem, even if my co-sponsor has significant income and assets?

You can file the I-130 (IR-1 visa) whenever you are ready but your wife cannot stay in the US. When she entered the US with her B1/B2 visa in June 2013, what did she say to the border agent as her purpose of visiting the US? B1/B2 is a non-immigerant visa and she cannot use the visa to enter the US with the intention of becoming an immigrant. That is visa fraud and will carry a US entry ban.

However, after you file the I-130, she can still enter the US with her B1/B2 visa depending on her ties situation in Mexico (whether she has a job, a lease, anything else that ties her to Mexico) at the time of entry during the 8 or so months for the IR-1 visa to be processed.

Hi Vegasbound,

When we entered the US, she said she would be visiting my parents for a few months. At the time, that was our actual plan. After we arrived, we learned that my wife's plan to enter graduate school outside the US in January was not going to work out. It was then that we thought about applying for IR-1. If accused of visa fraud, she could produce documents related to the original plan. Of course, we would rather avoid facing such accusations in the first place.

Thank you for your help!

Mantequilla

[Penguin_ie 5,995]

Yes she can interview in any country she is legally resident in (ie a tourist visa won't cut it).

Normally, three years taxes are asked for. If you made no income at all (ie not just no US income, but no foreign income either), and thus were not required to file taxes as per IRS rules, you can instead write a short explanation why you were not required to file. Even with a co-sponsor you, as petitioner, will be primary sponsor.

[Mantequilla 0]

Thanks for your help, Penguin

[ValerieA 350]

You do have the option of filing for Adjustment of Status. Your wife would not be able to leave the US until she received her AP or greencard - usually 3-5 months.

The guide to review to see if this option works for you is here: http://www.visajourney.com/content/i130guide2

[Mantequilla 0]

You do have the option of filing for Adjustment of Status. Your wife would not be able to leave the US until she received her AP or greencard - usually 3-5 months.

The guide to review to see if this option works for you is here: http://www.visajourney.com/content/i130guide2

Thank you, Valerie.

That could be a great option for us. Would it be a problem if that 3-5 month process extends more than six months past her B2 entry date?

What concerns me most is the warning about fraud issues. The truth is that my wife did not enter with the intent of immigration. But, because we had planned to move to Panama after a visiting here, we moved out of our Mexican home, and have few ties there now. I know that we are not commiting fraud, but do not want to get into a position where it appears that we are.

Also, I now realize that as a Mexican resident, I am eligible for Direct Consular Filing. If we went that route, I would file the I-130 via mail. Ideally, I would like to mail it from the US, and not return to Mexico until the interview is scheduled. Would that also open us up to allegations of fraud?

Thanks again,

Mantequilla

[vegasbound 83]

Also, I now realize that as a Mexican resident, I am eligible for Direct Consular Filing. If we went that route, I would file the I-130 via mail. Ideally, I would like to mail it from the US, and not return to Mexico until the interview is scheduled. Would that also open us up to allegations of fraud?

Why would you do DCF if you technically have the option of filing the AOS with your wife in the US already?

Does not sense unless you and your wife plan to go back to Mexico or you want to avoid paying the $1070 fee for adjusting status.

[Mantequilla 0]

You are right, Vegasbound. We're planning to go ahead with AOS.

Thanks!

[ValerieA 350]

Thank you, Valerie.

That could be a great option for us. Would it be a problem if that 3-5 month process extends more than six months past her B2 entry date?

What concerns me most is the warning about fraud issues. The truth is that my wife did not enter with the intent of immigration. But, because we had planned to move to Panama after a visiting here, we moved out of our Mexican home, and have few ties there now. I know that we are not commiting fraud, but do not want to get into a position where it appears that we are.

Also, I now realize that as a Mexican resident, I am eligible for Direct Consular Filing. If we went that route, I would file the I-130 via mail. Ideally, I would like to mail it from the US, and not return to Mexico until the interview is scheduled. Would that also open us up to allegations of fraud?

Thanks again,

Mantequilla

1. No, overstay is overlooked for spouses of US citizens, and once they accept the AOS package, she enters a period of authorized stay until it is adjudicated.

2. The important thing is having (and having proof of) a bonafide marriage. They can not deny an AOS application for the spouse of a US citizen on suspicion of intent. Also, the fraud warning in the guide is way overblown.

3. Unless at some point she lied to an immigration officer (or border security), there should be no allegations of fraud anywhere.

I don't foresee a problem for you. AOS is straightforward and fast, for those in the right position - and you sound like you are in the right position.

[Mantequilla 0]

Thank you, Valerie, that is very helpful

[Ryan H 3,818]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum; OP has specifically stated they will now follow the AOS route.