Ideal time to file for CR-1 visa

[ronnieshih 0]

I am a united states citizen and have just married my wife who is a Taiwanese national on 3/31.  I have booked her a plane ticket to visit me in USA on 5/13, complete with a return flight.  I was thinking that while she is here, we can get her 2x2 photo taken and perhaps get some questions answered for the I-130 and send in the I-130 package while she is here.  However, I have an attorney whom I'm talking to saying to me that if I file the I-130 soon after she enters as a tourist under the visa waiver program, then I have "immigrant intent while using a non-immigrant visa."  Truthfully, that is not what we are trying to do!  The visit is purely to see me, the place, and get this I-130 done together while we are together.  Since I don't want to violate the said "immigrant intent while using a non-immigrant visa" thing, what is the ideal time to file I-130?!  Can I file now before she comes???  File after she comes, but wait some time in between??

 

thank you.

Edited April 12, 2017 by ronnieshih

[Ben&Zian 4,398]

You can file whenever honestly.. 

 

As you said, her coming with intent to stay is fraudulent... but her coming to see you, help fill out and file the I-130 for the CR-1 visa, and leaving to go back home... that's perfectly fine.

 

 

[broppy 204]

8 minutes ago, Ben&Zian said:

As you said, her coming with intent to stay is fraudulent... but her coming to see you, help fill out and file the I-130 for the CR-1 visa, and leaving to go back home... that's perfectly fine.

I agree - as far as intent is concerned - she's only intending to visit on this trip and go home again. That would be no problem.

But personally, I'd wait until the day after she leaves before filing. I'd want to avoid having to fill in part 4 item 46 (if the beneficiary is currently in the US). I have a nasty suspicion that filling that in could raise flags or confuse them into expecting an adjustment of status rather than processing a visa.

[ronnieshih 0]

Since she is coming on 5/13, what if I file by end of April?  Does that construe the same problem here??  Would a customs official see that an I-130 has been filed and somehow invalidate her entry using visa waiver program?  thanks.

[pushbrk 12,894]

1 hour ago, ronnieshih said:

I am a united states citizen and have just married my wife who is a Taiwanese national on 3/31.  I have booked her a plane ticket to visit me in USA on 5/13, complete with a return flight.  I was thinking that while she is here, we can get her 2x2 photo taken and perhaps get some questions answered for the I-130 and send in the I-130 package while she is here.  However, I have an attorney whom I'm talking to saying to me that if I file the I-130 soon after she enters as a tourist under the visa waiver program, then I have "immigrant intent while using a non-immigrant visa."  Truthfully, that is not what we are trying to do!  The visit is purely to see me, the place, and get this I-130 done together while we are together.  Since I don't want to violate the said "immigrant intent while using a non-immigrant visa" thing, what is the ideal time to file I-130?!  Can I file now before she comes???  File after she comes, but wait some time in between??

 

thank you.

Your attorney is incompetent.  However, it will avoid bureaucratic mistakes if you actually file the day after she leaves.  That way, you can indicate she is not currently here.  When they see she is currently here, sometimes they make the mistake of thinking she's adjusting status and hold the petition instead of sending it to NVC.  If your attorney actually had much experience with this kind of case, he would know that and also know that immigrant intent upon entry is not grounds for denying adjustment of status for the SPOUSE OF A US CITIZEN.

 

My advice is that if you need help, hire a service that specializes in family based immigration.  Most immigration attorneys don't.  Then, file the day after she leaves, after making sure to indicate on the petition, that she is not currently in the US.

 

[KierenHby 899]

Get everything ready, incl photos\signatures, while she's here; then mail the packet after she's on the flight back to taipei. 

[ronnieshih 0]

I have no problem filing after she leaves, however, I am hoping to have her here for 3 months.  Filing after she leaves means I delay the whole process by 3 months   So even filing right now, when she physically isn't here yet, is not safe?

Edited April 12, 2017 by ronnieshih

[KierenHby 899]

Just now, ronnieshih said:

I have no problem filing after she leaves, however, I am hoping to have her here for 3 months.  Filing after she leaves means I delay the whole process by 3 months   So even filing right now, when she physically isn't here, is not safe?

It is safe. Can file any time.

But advice to wait is simply playing it safe in case she gets questioned at poe, and (the rare) chance she might be denied entry. 

[ronnieshih 0]

1 minute ago, KierenHby said:

It is safe. Can file any time.

But advice to wait is simply playing it safe in case she gets questioned at poe, and (the rare) chance she might be denied entry. 

Truthfully the answer at the point of entry would be "visiting to see husband, in-laws, and check out the future living environment."  "The petition for spousal visa is already in progress" would be answered by me, also truthfully.  This is ok?  The massive amount of red tapes simply would make me faint at the customs while coming back in.

[KierenHby 899]

Just now, ronnieshih said:

Truthfully the answer at the point of entry would be "visiting to see husband, in-laws, and check out the future living environment."  "The petition for spousal visa is already in progress" would be answered by me, also truthfully.  This is ok?  The massive amount of red tapes simply would make me faint at the customs while coming back in.

Stating facts, aka the truth, is ALWAYS ok. And highly encouraged. 

[geowrian 22,337]

17 minutes ago, pushbrk said:

Your attorney is incompetent.  However, it will avoid bureaucratic mistakes if you actually file the day after she leaves.  That way, you can indicate she is not currently here.  When they see she is currently here, sometimes they make the mistake of thinking she's adjusting status and hold the petition instead of sending it to NVC.  If your attorney actually had much experience with this kind of case, he would know that and also know that immigrant intent upon entry is not grounds for denying adjustment of status for the SPOUSE OF A US CITIZEN.

 

My advice is that if you need help, hire a service that specializes in family based immigration.  Most immigration attorneys don't.  Then, file the day after she leaves, after making sure to indicate on the petition, that she is not currently in the US.

^This. I know anybody can make a mistake, but what your attorney said is very disturbing as the advice is clearly inaccurate and not supported by previous decisions (Matter of Cavazos, Matter of Battista, and various others). It might not hurt to look at other options, or DIY.

[broppy 204]

9 minutes ago, ronnieshih said:

Truthfully the answer at the point of entry would be "visiting to see husband, in-laws, and check out the future living environment." 

That's too wordy and invites more investigation. A simple "visiting family" is more than enough.

[ronnieshih 0]

1 minute ago, broppy said:

That's too wordy and invites more investigation. A simple "visiting family" is more than enough.

Perfect, thank you, I'll say just that.  that's why I'm here asking questions from those with experiences already 

[ronnieshih 0]

I have not really employed this attorney yet to do my wife's visa, however, the info he is feeding me is rather confusing at this point.

 

He is now saying that when the wife is here on VWP during the visit, she just needs an adjustment of status and a visa is no longer needed?  

 

thanks.

[KierenHby 899]

1 minute ago, ronnieshih said:

I have not really employed this attorney yet to do my wife's visa, however, the info he is feeding me is rather confusing at this point.

 

He is now saying that when the wife is here on VWP during the visit, she just needs an adjustment of status and a visa is no longer needed?  

 

Visa fraud