Hi! :) New member here looking for advice <3

[Kaori 1]

Hi. I'm super excited and nervous about my visa journey. I am a Canadian currently in Hawaii visiting my boyfriend on a visitors visa for 5 1/2 months. We are both in our early 30's. I met my boyfriend in jan of 2013 and we officially became gf/bf August 2013. We have been talking about getting married so I can legally stay here to be with him.

He wants to get married on paper here while I'm here for the 5 1/2 months but from reading the forum and what's on google-it seems like the fiancé visa is the way to go.

I'm Worried that since I will be here till July 06 2014, I'm not sure when I should submit the paperwork because I'm not sure if I'll be allowed back to visit while the visa is being processed.

I have quit my job back in Canada but am welcome to have my job back when u get back home.

I have no criminal record-not even a speeding ticket. My boyfriend on the other hand

is a convicted felon and has served 5 years in prison for something he did just before his 21st birthday.

Also- he is not making enough money to meet the poverty guideline but his parents are willing to co-sign for the financial support part.

We really love each other a lot and I can't imagine spending my life without him. We really want to be together but is this even possible considering he's a convicted felon and (with his own income) is not meeting the minimum for the poverty guideline (it's even higher for Hawaii) but his parents willing to help.

Any advice would be greatly appreciated. Thank you all in advance.

[Zedayn 485]

If you want to get married while you are still in Hawaii, that's fine. However, you would not be filing for a fiance visa. You will need to file for a spousal visa. You can submit the paperwork as soon as you are married.

A couple potential problems: you said he is a convicted felon. Depending on the crime he may not be eligible to petition you. Honestly I'm really not too sure on this.

The other problem, the financial support part, won't be that big of an issue if he has a co-sponsor--which you said he has.

[Kaori 1]

Thank you zedayn,

The charges were for burglary and kidnapping. So yes, they were serious.

Can anyone tell me what the difference is between the fiancé and spouce visa? I've looked it up on the website and google but I'm confused as to why more people apply for the fiancé visa and not the spouce visa. Is one easier?

Thank you

[Pitaya 2,577]

~Moved from Introducing our Members to What Visa Do I Need Forum~

~inquiry about fiance(e) vs. spouse visa~

[Zedayn 485]

This might help: http://www.visajourney.com/content/compare

For the felony convictions, the kidnapping one especially, you are not likely to get approved.

Your petitioner will need to file a mandatory waiver because he committed a violent crime against another person, in his case kidnapping.

From http://www.lawandsoftware.com/ina/INA-214-sec1184.html

d. Issuance of visa to fiancée or fiancé of citizen

1. A visa shall not be issued under the provisions of section 101(a)(15)(K)(i) of this Act [8 U.S.C 1101(a)(15)(K)(i)] until the consular officer has received a petition filed in the United States by the fiancée and fiancé of the applying alien and approved by the Secretary of Homeland Security. The petition shall be in such form and contain such information as the Secretary of Homeland Security shall, by regulation, prescribe. Such information shall include information on any criminal convictions of the petitioner for any specified crime. It shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within 2 years before the date of filing the petition, have a bona fide intention to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien's arrival, except that the Secretary of Homeland Security in his discretion may waive the requirement that the parties have previously met in person. In the event the marriage with the petitioner does not occur within three months after the admission of the said alien and minor children, they shall be required to depart from the United States and upon failure to do so shall be removed in accordance with section 240 [8 U.S.C 1229a] and section 241 of this Act [8 U.S.C 1231] .

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.

2. B. The Secretary of Homeland Security may, in the Secretary's discretion, waive the limitations in subparagraph (A) if justification exists for such a waiver. Except in extraordinary circumstances and subject to subparagraph ©, such a waiver shall not be granted if the petitioner has a record of violent criminal offenses against a person or persons.

2. C. i. The Secretary of Homeland Security is not limited by the criminal court record and shall grant a waiver of the condition described in the second sentence of subparagraph (B) in the case of a petitioner described in clause (ii).

2. C. ii. A petitioner described in this clause is a petitioner who has been battered or subjected to extreme cruelty and who is or was not the primary perpetrator of violence in the relationship upon a determination that—

I. the petitioner was acting in self-defense;

II. the petitioner was found to have violated a protection order intended to protect the petitioner; or

III. the petitioner committed, was arrested for, was convicted of, or pled guilty to committing a crime that did not result in serious bodily injury and where there was a connection between the crime and the petitioner's having been battered or subjected to extreme cruelty.

2. C. iii. In acting on applications under this subparagraph, the Secretary of Homeland Security shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Secretary.

3. In this subsection:

A. The terms “domestic violence”, “sexual assault”, “child abuse and neglect”, “dating violence”, “elder abuse”, and “stalking” have the meaning given such terms in section 3 of the Violence Against Women and Department of Justice Reauthorization Act of 2005.

B. The term “specified crime” means the following:

i. Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.

ii. Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of the crimes described in this clause.

iii. At least three convictions for crimes relating to a controlled substance or alcohol not arising from a single act.

Basically unless he can prove he was not the primary perpetrator of this crime, you will likely not be granted the waiver and thus would result in denial.

[cee-gee 20]

The above post is a great resource, I would do a bit more research and because of the convictions; I would consider consulting a lawyer- at the very least for a consultation, they would be better to assist you; rather than me- I do think it is unlikely for an approval, but I am not well versed in this area. The best of luck to you.

[Kaori 1]

Thank you everyone for your help. This scares me and I'm losing hope but still want to try. I've asked a few lawyers and they said it can be possible but I'm not sure if they are just saying that to get my money.

[NikLR 13,227]

I would find a good immigration lawyer. They are not cheap and there are a few names floating around the forum for such things.

People generally do the K1 because it's faster and they "cannot possibly live without their spouse." For some people, once you're married you should live together and that's that. To me, I considered the day I said "I will marry you" to be just as important as the day I said "I do." The same things that were deal breakers then are deal breakers now. Engagements, IMHO, are for planning a wedding. That's it. I needed to travel right away and wanted to be able to work or collect EI immediately so we got married. Plus we were also working on my husband moving to Canada and it's easier if your'e married in that manner as well (Canada doesn't have a fiance visa but they allow common-law immigration.)

But the USCIS processes K1 faster because a) they make more money from a K1 and.... yep that's it. LOL

There are some major advantages and disadvantages for each type. For instance if you live in BC, a K1 may be the route to go because otherwise you have to fly to Montreal for the interview instead of conducting it in BC. There are a limited number of physicians in which do do the medical, 1 in BC, 2 in Ontario and 1 in Montreal.

You can visit while the process is going on, however it's best to keep the visits short and sweet. I never had a problem and visited 3 times after marriage (twice during the process.) Others live in border towns and visit every weekend. Having proof of your ties to Canada is a little more important once you start immigration so keep that job, pay bills (like rent or a lease) and bring proof of such when you travel to make it easier.

Obviously you know your fiance will not be able to visit Canada so marriage in the USA is your only option.

Edited March 1, 2014 by NLR

[cee-gee 20]

I can understand being weary of a lawyer, but I think that could be your only option. Do your research before you choose an immigration lawyer. You can try to find a forum on here for recommendations.

Read this:

http://www.uscis.gov/sites/default/files/files/form/i-129finstr.pdf

Around page 2, where it states IMBRA.

This is a stressful time for everyone, without the added stress of your situation. I truly feel for you.

[NikLR 13,227]

IMBRA isn't an issue with marriage visas btw. The only thing that really stops a spousal visa is the Adam Walsh Act to protect children.

[Kaori 1]

Thank you zedayn, cee-gee and NLR for all your help and support.

Does anyone know his long I have to wait to re-apply if I decide to do this on my own and it gets rejected? My future husband doesn't want to get a lawyer even after explaining the situation. I think this way he will see how difficult our situation is.

Excuse my ignorarance but I googled IMBRA but I don't fully understand it. Also does this need to be done for the K1 fiance visa too or only spouce visa?

I read about the Adam Walsh act and it worried me because both my boyfriend and his girlfriend at the time of his arrest were 21. Does that count as a minor?

Thank you again for all your help

Edited March 1, 2014 by Kaori

[NikLR 13,227]

No a minor is someone under the age of 18. The Adam Walsh Act is to protect minors against sexual abuse. Basically a registered sex offender of any type or classification cannot petition someone.

IMBRA only affects K1 visas.

Edited March 1, 2014 by NLR

[Kaori 1]

Thanks NLR. Both fiance visa and spouce visa require us to disclose his crimminal records correct?

I wonder if it would be easier for us to apply for the spouce visa instead.....?

[NikLR 13,227]

Of course. They do background checks on all petitioners and beneficaries. I still think you guys should do a consultation with a lawyer. A consult should be free.

[Kaori 1]

I'm going to do that. Thank you I'm thinking of also going to the immigration office to ask questions too

Edited March 1, 2014 by Kaori