unusual k1 petition

[Ryan H 3,812]

~~~Closed for review.~~~

~~~Thread back open for discussion and moved from Progress Reports to Process & Procedures; review was prompted by a report received by VJ Moderation of possible TOS violations. While no TOS violations were found, rude responses to posts will no longer be tolerated.~~~

Edited February 15, 2014 by Ryan H

[Avery Cates 1,141]

HMMM. I searched the USCIS website but I could not find any information on their "stinkeye" policy.

If you want to argue semantics that's fine, but it's not going to help your case in any way. I would listen to what people here say rather than thinking yourself clever.

And just because I survived prior to meeting her does not mean it would not be a hardship to go through a long separation now.

It also does not mean you have any chance at an expedite. If you really want to submit in your petition "I would have a hardship if this person who is in the country illegally left" then that's entirely your business, and I would love to hear about how that goes. Again, I feel like you're trying to be a little too clever and find a way around the other 500,000 people with petitions out there, but this isn't USCIS' first rodeo, and I can assure you no matter what you think of it's already been done and tried and accounted for.

Your best bet for this petition to be successful is to piece evidence together as quickly as possible, have everything that needs and original signature signed, and then for her to return to her country immediately.

[notusinganymore 31]

Original petitioner needs to withdraw previous K1 petition.

You can file a new petition after withdrawal while beneficiary is still in the US.

Upon entering the US she had a choice to make within 90 days. Marry the previous USC and adjust status OR not get married and leave US. After 90 days she is considered out of status. Staying here of more than 180 days without status causes a 3year ban and more than a year equals 10 year ban.

She cannot adjust her status even if you marry her. She would still be out of status after the 90 days. Gather as much evidence as you can now and fill up paperworks then file K1 granted you have not married.

CR1/IR1/Spousal visa is a more plausible route for you as of the moment as it isn't that restrictive with the joint sponsor (if needed) and mainly because Manila Consulate will give the "stinkeye" for another k1 visa when a previous k1 already failed. Take that into consideration as it is not a mere stare from the consul but is a factor for their decision to either approve or deny visas.

Waivers are rarely approved. If you were dying or the beneficiary is dying then MAYBE it will be approved. If you look at the guidelines for waivers, it consists of a life and death situation. I hope that's not a case for you. An expedite can be done. Philippine visa are currently expedited in general because of the Typhoon that struck it. However, because of the volume of approved visa it is now almost impossible to book an appointment within 2 months of approval. You will still have to wait.

In summary,

1. Previous USC withdraws petition

2. You file for another petition while she is in the US

3. Let her go back to the Philippines as soon as possible (less than 180 days at most)

4. Wait for approval.

5. Schedule interview.

6. Visa issuance.

[novedsac 355]

I am only interested in what the law says about my situation. ANYTHING I learn here I will use to ask questions when I consult an attorney.

This is a sure fire attitude for failure. Law, policy and procedures cover only about 40% of what is going to happen … the remaining 60% is interpretation and application of the law, policy and procedure by consular officials and officers at the POE. Consular officials have a tremendous amount of latitude in deciding whether a petition should be approved or not. Embassies can set their own requirements, within the wide scope of the law, and there will be differences in how your petition is handled in Manilla versus an embassy in some other country. Even with a visa in hand, CBP officials at the POE have ultimate authority to decide whether to let someone into the country or not, irregardless of whether there is an approved visa in hand. And they are not obligated to notify the petitioner or provide detailed reasons for their actions. This is precisely why information from individuals who have been through this process before is invaluable in giving you the best chance at success.

And just because I survived prior to meeting her does not mean it would not be a hardship to go through a long separation now.

For an I601 waiver, you need to be concerned with USCIS interpretation of 'extreme hardship', not yours. USCIS will certainly consider how you have managed your disability prior to meeting this girl, how long she has been with you and why being separated now is an extreme hardship. I can tell you from personal experience that familial separation, in and of itself, will NOT meet the USCIS threshold of extreme hardship - and that is assuming she is your wife; as a fiancé she is not a family member. And keep in the mind that the extreme hardship must be upon the USC petitioner and not the foreign beneficiary. Again, this is a area where USCIS has wide latitude in terms of what they will accept and each adjudicating jurisdiction can be expected to demonstrate variability in approving I601s as well. This is where experience from individuals who have gone through this before will be invaluable. There are a couple of attorneys in the US who specialize and are extremely well informed in I601 waivers - I think there is a sub forum here, or perhaps some other forum, which had great info a several years ago when I was looking for it.

Your disability, which I assume limits your ability to travel, may relieve you of the requirement to have met face-to-face within 2yrs of filing for a K1 petition, but you already seem to have that condition met.

Regarding some other points you have brought up - be very careful with immigration attorneys. Most immigration attorneys are great with filling out forms, a large but smaller subset are great at understanding routine immigration needs, but only a much smaller subset understand the subtleties and possess the finesse to get this girl to remain with you permanently in the USA. Even if you like the first couple of attorneys you speak with, continue to get third, fourth and fifth opinions.

​And … sure, a 3yr ban of entry will be incurred with an overstay of 180 days and a 10yr ban of entry will be incurred with an overstay of 365 days, but it would be wrong to think you can send her back at day 179 and expect that the overstay will not be an issue. USCIS may well, and is allowed to, ask questions regarding the length and the reason of overstay even if below the thresholds for a ban of entry. This is where you need the advice of others who have tread similar paths … so that you can consider hypotheticals (even though your are loathe to do so) … what I'm thinking of now is that you've only known her for a very short time, which will certainly raise red flags within USCIS when reviewing your case, so will an long overstay allowing more face time with her be better than sending her home quickly to minimize the overstay and building your relationship some other way. I don't know the answer to this … and you won't find it written anywhere in a law, policy or procedure … and an attorney is either going to base it on their experience or, without experience, give you an answer which may sound good but has not real foundation.

Remember that as a USC you certainly have the right to marry whom you wish and file for any petition you wish, but you do NOT have the right to bring a noncitizen into this country. ​You basically have two paths forward … another K1 or a spousal visa … each has their own pros, cons and timelines - neither of which are short or easy.

Good Luck.

[Steve&Ema 25]

You guy should just get married, have her stay here and adjust her status. Why have her go back to the Philippines? She would have to go through CFO and all that ####### again.

[novedsac 355]

Waivers are rarely approved. If you were dying or the beneficiary is dying then MAYBE it will be approved. If you look at the guidelines for waivers, it consists of a life and death situation. I hope that's not a case for you. An expedite can be done. Philippine visa are currently expedited in general because of the Typhoon that struck it. However, because of the volume of approved visa it is now almost impossible to book an appointment within 2 months of approval. You will still have to wait.

I don't believe a beneficiary dying would meet the threshold for extreme hardship required for the I601, precisely because the extreme hardship must be on the USC petitioner and not the beneficiary. Now, if the USC petitioner had a medical reason which prohibited travel to be with the terminally ill beneficiary, then perhaps.

Extreme hardship is not only about life and death situations. Cases I have seen approved would include USC petitioner being unable to work due to a disability yet the beneficiary spouse is able to work and take care of the USC petitioner in terms of providing home health care and/or hospice care. Cooking, cleaning and laundry are not grounds for extreme hardship. Familial separation is not, in and of itself, going to meet the threshold either … but I've seen petitions approved where it was one of a few other less significant points which in total were determined by USCIS to be extreme hardship.

Lots of variability … need to study as many success / failure stories as you can and see how they fit with your particulars.

[novedsac 355]

You guy should just get married, have her stay here and adjust her status. Why have her go back to the Philippines? She would have to go through CFO and all that ####### again.

Because there is a statutory prohibition from a K1 beneficiary adjusting status in the US with anyone other than the K1 petitioner.

Even the last general amnesty specifically excluded illegal immigrants in this situation from the amnesty program.

What you suggest is the single worst thing the OP could do, not just for him for the girl as well.

[Harpa Timsah 13,258]

You guy should just get married, have her stay here and adjust her status. Why have her go back to the Philippines? She would have to go through CFO and all that ####### again.

Why? Because it's totally impossible.

[Natanloupan 11]

You guy should just get married, have her stay here and adjust her status. Why have her go back to the Philippines? She would have to go through CFO and all that ####### again.

CFO sticker is still good unless the passport expires correct ?

[Darnell 8,478]

Thanks. This is very helpful. Just needed to know if we could start the application process here. I am hoping we get an interview date within 6 months, theat way she only has to return to the Philippines for a short time.

Does anyone know if a hardship waiver might apply in this case. I am a disabled vet and her leaving for an extended period of time will be an extreme hardship for me.

she will have other issues.

first, no, you cannot apply for a k-1 in the usa.

however, you can file a petition, an I-129F, anytime, her location not matter.

Once the I-129F is approved, the casefile is sent on to NVC then on to Manila IV, and once it's there, she has to pay in the PI and then self-schedule the appointment for a k-1 visa interview. Once the I-129F is approved, there are visa application forms that she needs to fill out.

Regardless, if she has overstayed past the last date in her I-94, she is subject to a 'bar from entry' into the USA, and the length of the bar varies by her duration in the USA after the I-94 expires.

Have a bar? Need a waiver. Wait anywhere from 2 months to 18 months for the waiver to get approved.

I suggest you refactor your plan, you are putting her at risk and you are in need of more information, then refactor your calendar based on the new info you receive. or get. or find yourself.

Sure, there might be one plan that works without worrying about an overstay, and that's for her to get the heck back to the PI on Tuesday and you file the I-129F nowish. Hard to be certain, as you are hesitant to give over a pertinent fact (when the I-94 expired).

Good Luck to you, whatever falls into your path.

You guy should just get married, have her stay here and adjust her status. Why have her go back to the Philippines? She would have to go through CFO and all that ####### again.

disagree. not allowed based on her current visa type.

[Darnell 8,478]

HMMM. I searched the USCIS website but I could not find any information on their "stinkeye" policy.

and you won't.

WHY? USCIS not approve visas. DoS approves visas (IV Unit in Manila is a unit of the Department of State).

So, re-search the DoS Website.

[belinda63 3,033]

Withdraw the prior visa. She could probably do it by writing a notarized letter explaining she arrived on a K-1 visa and decided to not marry the petitioner.

Have her return to the Philippines prior to the 180 days so she has no ban. I would not cut this too close by waiting until day 179 as things happen.

You can file a 129F petition for her anytime you wish.

Law is only part of the immigration process. You can meet all the requirements of the law and still not obtain a visa. This is not a black and white situation.

Very unlikely you can obtain a hardship waiver as you lived just fine before you met her. What extreme need to you have that she must be with you in the US right now that did not exist prior to you meeting her?

As to hypothetical: This is not hypothetical. She will be questioned very intensely about her prior relationship and why she chose not to marry the petitioner. She will then be questioned as to how she fell in love with someone weeks later. The Philippines is a high-fraud country.

[yailukmuu 26]

Scsummers, Aaron wrote: “The only risk is not getting the visa and be married living in two countries.”

I’ll accept that you and your lady are truly in love, and have developed a legitimate relationship that will endure. So please put what I say into that context.

Aaron is incorrect. The real risk, which is evidenced by the flack that you’re tending to get here, is that, frankly, this has red flags written all over it. Now I realize that red flags, even an abundance of them never, ever proves anything. Red flags are a call to “pay attention.” From my point of view, even if you and she are 101% legit, those red flags are real, and from my few years here, though the “stinkeye protocol” doesn’t formally exist anyplace—in reality, at Consulates it indeed does.

You say: “Please keep personal observations and advice to the lovesick to yourself. I am only interested in what the law says about my situation. ANYTHING I learn here I will use to ask questions when I consult an attorney.”

Well, again, not being in the least cynical, I’ll say: You had best find a really knowledgeable lawyer who deals exclusively with immigration law and whose entire practice is solely American/Philippine immigration. The reason is simple—most lawyers don’t know a lot about specific Consulates—yet they need to. You can hardly find a one who will say: “good question—I really don’t know.”

As far as “law” goes, keep in mind that the “law,” is not always your concept of “law.” For instance routinely State Supreme Courts will get many hundreds of appeals and yet will only “accept” a few. The rest are relegated to Limbo—forever, never to be answered. And btw—this is all legal.

Well, like it or not, Embassy law is very, very much in the same area. Consulates are free to essentially do as they wish. Case in point: Thailand’s Consulate will never, ever allow a child out of Thailand without the express permission of both parents—even if, for instance the father of a child never married the mother, never supported her, and never had contact with the child. This flies in the face of pretty much any State law of America. The point is—with Consulates, attempts to force “the letter of the law,” will usually get you no place. Sad, but true—I’ve been there, done that. If you can spend a few hundred thousand, well—you might get someplace, if not, my suggestion is “give it up,” regardless of how unfair it seems to be—or is, Constitutional Law is not as it once was--you know that already.

Consider that Philippine Consulate’s rules are entirely different. An “unwed child,” under the age of 7 is almost always passed through a K-1 or a marriage Visa without a glance. Different Consulate—different “law.” Reality, like it or not.

Is the “stinkeye” a reality? In my humble opinion—you bet’cha. Do you have to listen, no—of course not. Do as you wish.

But back to “The only risk is not getting the visa and be married living in two countries.”

No the risk is far, far greater. The risk is that like my spouse who came here in November on a K-1, who married me and then dumped me for no reason, apparently not realizing that I could withdraw my Affidavit of Support—you too may be being set-up for something similar. I’m not saying it is so, just that it’s something to consider because in my opinion—the Consulate will consider it.

Hear me out please—in some cases everything will be legit, perhaps like yours—in others, like my case, not so—only to seen in hindsight. For instance I should have seen the light. In her family already, two older sisters had married elderly men with significant medical issues, read, “not too many years to live”. Hey, I won’t even fault that—a lovely Filipina who spends ten or 15 years making a man’s last year’s glorious, well it might make for a fair trade. Maybe my fault was that my spouse decided that I'd just live too long--who knows? I no longer think about it.

Just please realize—that even if in your case you and your lady appear and are in fact, from your point of view to be truly legit—that many here, including me, that see huge red flags. And as we do, so too will most Consulate officials. So you are warned—if you believe 100% that you are not being played, and I will assume that is the case, at least realize that your lady (perhaps for very good reasons) have already set off alarms. So like it or not, you will get the stinkeye (oops—scrutinized closely).

I’d suggest that you just think about how it appears from a distant perspective. And I sure hope that she is, as you undoubtedly are—100% legit. A few days ago I wrote out a $1000 check to a lawyer, bringing the total expended for divorce to $3700, and this is just for the divorce I'm forced into, I'm ignoring the K-1 cost including the $1070 fee that cleared on the same exact day she disappeared. And to think—I was so sure that my fiancée/wife was legit—yes, it blows my mind. But the reality is that especially in the Phils, now that H1-B’s are becoming more and more difficult to acquire (either legitimately or illegitimately) there will be, and in fact, is, at least that is what I expect, an increase in “coached” Visa shopping. “Coaching is where someone usually in the US coaches a relative in how to get here.”

A few red flags that you might want to watch for: Relatives/friends who are in the US, especially if they are illegal, or hold H1-B Visa’s without sufficient credentials, such as a healthcare worker who is not a specialized, experienced RN. And especially watch for relatives that are “hidden,” now that is a deadly flag not to be ignored—when you know many in the family, but there is one or two that you heard about—but for some reason—never get much concrete data about, as was in my case. Also look for relatives/friends who have married men not particularly desirable in America's female materialistic world. Remember red flags never condemn anyone but they are an indication to pay very close attention.

I’m a smart guy—I was duped. Looking back, I will not fault myself, it was that well done. Remember that here in America a Filipina working as a simple LNA (Licensed Nurses Assistant) will earn $41,600 gross. ($20x40x52) Without the LNA, she might earn $41,600 (without overtime) under-the-table--more than if she works legitately. Tell me, which is the best option?

I have a friend who works at a huge nickel mind in Mindanao, her title is Administrator in Charge of Documentation—she has a college degree. She grosses about $250/month. Yes in one year a Filipina who gets to America by any means will earn, at a minimum, if she is smart in one year what my friend earns in almost 14 years. In a mere two years here she can earn what a Filipina in Mindanau with a college degree can earn in a lifetime. And in the eyes of her family, she may be a hero—no thought will ever occur about what happened to that nice guy?

I’m not here to insinuate—but if you cannot see the possibility of fraud well… I’ll let you think about that. And if you believe that there is no possibility, as I did…go for it, but listen—the people here know more than most “immigrant” lawyers do. Look at it from a Consulate official who knows that this year xx thousand Visas will be issued and within so many years the American sponsor will find himself (or herself in the case of some African/Middle East cases) divorced, and the possibly taken “to the laundry.”

If nothing else, I hope this gives you some insight into how others see your case, even if that irks you.

I wish you the best of luck, especially as you have given up so much for your country already. You deserve both a wonderful relationship and one here in the States.

Edited February 16, 2014 by yailukmuu

[C-ma'am 684]

[Reverted]

Edited February 16, 2014 by Celeste & C

[dwheels76 5,468]

One thing I wanted to throw out there since you ask about filing. Besides the withdrawal of the 1st petition by the petitioner, what about if anything has been sent by the petitioner to stop any future petitions for your fiancee'?

Consider this. If she came here and realized she made a mistake and decided not to marry. The petitioner might be one angry mad guy and report her to immigration and her name may or may not be flagged. Or,

She came here and he changed his mind and decided not to marry her and still he notifies immigration of fraud or whatever. Whether its fact or not its reported and out there. is she on good terms with him. Talked to him. If he found out she already foiund a new love before she even left the US how would he feel (just food for thought).

Neither you nor your fiancee' have any idea if he has done this. It's something to consider.

Also seems the only thing considered here is that "you meet the 2 year meet requirement". The embassy in the Philippines is no cakewalk and didn't you just meet?

If you posted "I meet my girl 3 months ago and we are engaged can i file for her", people here on VJ would be foaming at the mouth to tell you that's too fast, slow down.

Just trying to give you some perspective and thinking like a CO (I know you don't want anything but law) but Visa approval or denial has not a dang thing to do with any ones law. The embassy breaks the law 99% of the time with denials and we take it up the butt. So please with the law.