Returned Back to Vietnam before AOS Filed

[DavidDavidDavid 0]

Have a Question here, long story short, My Vietnamese wife came to the USA on a K-3 visa while pregnant,

we got married, had the kid, she had postpartum depression and started acting like a nut job, so we returned back together to Vietnam and did not bother filing the Adjustment of Status or for Advance Parole to travel, and we all three have been back her living in Nam for the past 6 months, I'm going to assume without certainty that its too late to adjust her status, however I did hear that I can apply for her K-3 Visa as a direct relative here at the consulate office using whats called Consular Processing?

 

Anybody heard of doing this?

 

Although you usually file immigrant petitions with USCIS, sometimes you can file a Form I-130 petition for an immediate relative (spouse, child, or parent of a U.S. citizen) with a U.S. embassy or consulate abroad. Situations where this may be applicable include:

• If the U.S. citizen has been authorized to be continuously residing within the jurisdiction of the consular office for at least the previous 6 months

 

is any part or all of this together true? Please inform.

[geowrian 22,338]

DCF is not available for Vietnam:

https://www.uscis.gov/about-us/find-uscis-office/international-immigration-offices

 

K-3 is obsolete. You would go for a CR-1/IR-1.

[DavidDavidDavid 0]

Actually I heard back from the Consulate a few minutes ago, and I in fact can file her i-130 here due to the fact I have lived her over the past 6 months, its in their guidelines.

 

The Child has a US passport, and me and my spouse have our marriage licence/certificate from the USA as well as our child's birth certificate with both of our names on it.

 

Thanks for your help everyone,

she did not overstay her visa by not filing her AOS, I spoke directly with a DHS agent in the US prior to returning because had concerns about her status, he said we were married before the 90 day visa expired? "Yes" then you can prove that then no law was broken, she just won't have an immigration status until its filed. The stipulation is to be married within 90 days of arriving on US soil is my understanding...

 

[geowrian 22,338]

16 minutes ago, DavidDavidDavid said:

Actually I heard back from the Consulate a few minutes ago, and I in fact can file her i-130 here due to the fact I have lived her over the past 6 months, its in their guidelines.

You may be able to "file" there, but it would be adjudicated in the US unless there is a USCIS office located at the consulate (thereby not being any faster), unless there are certain expedite criteria. See:

https://travel.state.gov/content/visas/en/immigrate/immigrant-process/petition/file/filing-immigrant-petitions-outside-the-u-s.html

and

https://www.uscis.gov/archive/archive-news/uscis-centralizes-filing-form-i-130-0

 

The consulate does not adjudicate the I-130 - USCIS does (unless there is an exception as noted above).

 

Quote

she did not overstay her visa by not filing her AOS, I spoke directly with a DHS agent in the US prior to returning because had concerns about her status, he said we were married before the 90 day visa expired? "Yes" then you can prove that then no law was broken, she just won't have an immigration status until its filed. The stipulation is to be married within 90 days of arriving on US soil is my understanding...

She did not meet the 180+ days necessary for a bar, but after the 90 days she would have ever been out of status if she did not file for AOS. If she did file for AOS before the 90 days, there would be no gap in status or authorized stay. If she filed after 90 days, there would be a gap of unlawful presence, but as long as it was under 180 days, it won't incur a bar or affect her ability to get an immigrant visa abroad.

 

Correct - you must be married within 90 days to qualify for AOS based on the K-1 status. But it does not permit indefinite stay in the US by itself...just a path that permits applying for permanent residency. Either way, she's not in the US now and there's no bar, so this is kinda moot.

Edited November 20, 2017 by geowrian

[DavidDavidDavid 0]

Right, we got married soon after arriving and were back in Vietnam only a couple days prior the the expiry of the 90 day Visa, I didn't make clear , I was concerned about the timeline AF filing the AOS and was told it didn't need to be filed before her 90 day visa expired, correctamundo thanks for painting a clearer picture though, had no idea of a so called "barring". 

[geowrian 22,338]

1 minute ago, DavidDavidDavid said:

Right, we got married soon after arriving and were back in Vietnam only a couple days prior the the expiry of the 90 day Visa, I didn't make clear , I was concerned about the timeline AF filing the AOS and was told it didn't need to be filed before her 90 day visa expired, correctamundo thanks for painting a clearer picture though, had no idea of a so called "barring". 

Ah, okay. You're fine then with no overstay either. And yes, the AOS could still be filed after the 90 days so long as you married within the 90 days of entry on a K-1 visa.

[Boiler 45,980]

Sounds like a K1 not K3.

[DavidDavidDavid 0]

It was a k-1, already arrived in USA got married, had a child there, returned back to Vietnam and never applied for Advanced parole or Adjustment of status, so her original K-1 application is considered abandoned, so next step is to file the CR-1 Spousal i-130 K-3 Visa for Direct Family Member, which there is no wait time unless you are Viet Kieu (American Vietnamese)...then they investigate and it takes longer.

However I must send this to the Chicago locker box unless I can speak to someone at the Consulate and have an emergency, then they can contact DHS FODA and ask for permission to process the application here in Vietnam at the Consulate office. This was info provided by the duty officer at the US Consulate in HCM US Citizen Services.

Edited November 21, 2017 by DavidDavidDavid
Not finished and posted