Tourist visa to K-1 visa with a lie

[Justjake 23]

6 hours ago, Going through said:

This pinned topic might help give you a more rounded view of what is considered/evidence generally submitted: 

 

 

That is an extremely important sticky, i'm glad you pointed it out.
I see that these are the Extreme Hardship examples I can use based on a level 1-5, with 1 being strongest and 5 being weakest:

Level 2: you are caring for a moderately disabled relative who normally can care for him/herself but occasionaly has episodes in which he/she needs a lot of help from you and during those time you, in turn, need help from your spouse (Family member has Polio)
Level 2:  you have a child that you are putting through college or are about to put through college (Will be starting college in 4 years)
Level 3: you are the non-custodial parent of a child from a prior relationship and you have an actual relationship with that child and the child's other parent will not allow you to take the child out of the country but your spouse or fiance(e) does not have a relationship with the child at this time (self-explanatory)
Level 3: you have a close relative who is partially dependent on you physically (same relative with Polio)
Level 4:  your parents are getting old (self-explanatory)
Level 5: you and your spouse want to have children in the future (but are not currently pregnant) and either the wife is getting older or the foreign country has a high infant mortality rate. (She will be over 40 after we marry)

[Going through 5,671]

3 hours ago, Justjake said:

Level 2: you are caring for a moderately disabled relative who normally can care for him/herself but occasionaly has episodes in which he/she needs a lot of help from you and during those time you, in turn, need help from your spouse (Family member has Polio)

They will want proof that you are the main caregiver....things like you are the one who accompanies them to medical appointments, helps them in some physical capacity, a sworn affidavit from them, proof of you financially supporting them, doctor statement about the capacity of care that you personally have in their treatment, how that person would also be under hardship if you specifically were not there to provide care because there is no one else to support them, etc.   It's not enough to state these things---you need to provide documentation.

 

3 hours ago, Justjake said:

Level 2:  you have a child that you are putting through college or are about to put through college (Will be starting college in 4 years)

"in 4 years" is not the same as "about to put through college".  You're kind of grasping at straws with this one, here.

 

3 hours ago, Justjake said:

Level 3: you are the non-custodial parent of a child from a prior relationship and you have an actual relationship with that child and the child's other parent will not allow you to take the child out of the country but your spouse or fiance(e) does not have a relationship with the child at this time (self-explanatory)

The part "AND the child's other parent will not allow you to take the child out of the country" is very important for this.  Custody agreements outlining such matters would be beneficial.  The age of the child can also come into play here.

USCIS can also easily argue that nothing stops you as the USC from traveling back and forth for visitation so you will want to mention and submit proof of any financial hardships you may face with that.

 

3 hours ago, Justjake said:

Level 4:  your parents are getting old (self-explanatory)

Not so self-explanatory as that, however.  Everyone's parents are getting old.

 

What they are really looking for here, is whether you are the one now mainly responsible for their care as they age, and if they now are at least partially physically and/or financially dependent upon you as they get older (or would be), if they are unable to travel due to their age, they are very elderly, etc.   If you have no siblings to share in the responsibilities, you will want to mention that. 

 

There's a reason why this is considered a Level 4...because, again, everyone's mom and dad get older...it's not a strong argument. 

Edited November 8, 2018 by Going through

[Justjake 23]

Thanks for the clarification.  

I think that this thread is a little long in the tooth.  

Recap:

Fiancee in China.

Fraudulent Visitor Visa.

Decision to marry in China during visit next year.

Fiancee will not travel to US anymore on fraudulent Visa.

Lawyers being interviewed.

Current path is I-130 followed by I-601 if required.

Will continue posting to new thread about specific questions (questions about I-130 which may not be resolved by a Google search)

 

Hat tip and thanks to all that have contributed, much appreciation. 

[Boiler 45,525]

No Divorce Certificate seems key.

[Justjake 23]

22 minutes ago, Boiler said:

No Divorce Certificate seems key.

I get that.  Unfortunately there is nothing we can do to address that directly. We will just have to take our lumps.

[YulenkaF 42]

and what if they will not give you 212 AP but will give AP with 221g for example where they will ask to bring some document which you for sure will give them. But they will mark your case as a couple where was a not truth in the past?

In such situation no waiver is possible....

Any ideas?

[Justjake 23]

7 minutes ago, YulenkaF said:

and what if they will not give you 212 AP but will give AP with 221g for example where they will ask to bring some document which you for sure will give them. But they will mark your case as a couple where was a not truth in the past?

In such situation no waiver is possible....

Any ideas?

I think because there is no divorce certificate, that we will have to provide a proof of single status ( I'm not sure what it's called, but in China it's basically a form or document that states a person is single) 

[geowrian 22,337]

1 minute ago, Justjake said:

I think because there is no divorce certificate, that we will have to provide a proof of single status ( I'm not sure what it's called, but in China it's basically a form or document that states a person is single) 

Devil's advocate here:

Prove she didn't marry abroad.

[Justjake 23]

21 minutes ago, geowrian said:

Devil's advocate here:

Prove she didn't marry abroad.

In some circumstances it can be safely assumed that if a certain event had occurred, evidence of it could be discovered by qualified investigators. In such circumstances it is perfectly reasonable to take the absence of proof of its occurrence as positive proof of its non-occurrence.

The claim of being married can be dismissed as there is no evidence that the marriage exists, other than a statement that it exists.  A statement in and of itself is not enough to be considered factual just because it has been stated.  There would need to be factual evidence that proves the statement of the fact.

[geowrian 22,337]

12 minutes ago, Justjake said:

In some circumstances it can be safely assumed that if a certain event had occurred, evidence of it could be discovered by qualified investigators. In such circumstances it is perfectly reasonable to take the absence of proof of its occurrence as positive proof of its non-occurrence.

Generally they rely on the documentation they have access to + the credibility of the applicant. The issue here is a catch-22: they claimed to have married but are now claiming not to have been married. If they were lying before, how do you know they aren't lying now instead?

Unlike a typical case,  the presumption will be  that she married and it will fall on her to overcome that (somehow). If she's saying she lied in the past, they won't give her the benefit of the doubt that she didn't marry as she has no credibility in their eyes.

 

Quote

The claim of being married can be dismissed as there is no evidence that the marriage exists, other than a statement that it exists.  A statement in and of itself is not enough to be considered factual just because it has been stated.  There would need to be factual evidence that proves the statement of the fact.

Incorrect. The requirement to show that one is eligible for the benefit being sought is on the applicant. They don't need to prove she is married. She needs to prove she is/was not married and therefore eligible for the visa.

 

The issue is no such document proves somebody is not married. There are documents to prove a marriage occurred. There are documents to prove that marriage was dissolved.

Lack of evidence is not evidence itself.

Edited November 8, 2018 by geowrian

[John & Rose 7,239]

1 hour ago, Justjake said:

In some circumstances it can be safely assumed that if a certain event had occurred, evidence of it could be discovered by qualified investigators. In such circumstances it is perfectly reasonable to take the absence of proof of its occurrence as positive proof of its non-occurrence.

The claim of being married can be dismissed as there is no evidence that the marriage exists, other than a statement that it exists.  A statement in and of itself is not enough to be considered factual just because it has been stated.  There would need to be factual evidence that proves the statement of the fact.

False.  The claim of marriage was materially responsible for receiving the visa.  Admitting fraud in order to get another chance is a tough sell.  There is no way to resolve the issue without admitting material misrepresentation or more fraud.  This is a very serious situation.  I think it is incredible how you are thinking through all of this but there is one point that can not just be explained away.  You will need a fraudulent divorce decree, fraudulent death certificate, fraudulent annulment or you have to admit that she, for the sole purpose of receiving a visa that would not be obtainable otherwise, has committed visa fraud.

 

She will need to prove that her fake marriage ended.  It is not up to the US Government to prove she was never married.  Best case scenario I see is that they simply deny the CR-1 because she was not legally capable of contracting marriage.  Worse case scenario is she gets denied and has a permanent ban due to visa fraud.  I honestly cannot think of a single way that a new visa will be granted without more fraud or a totally empathetic CO.  Visa fraud is the one thing that they are charged with preventing.

 

She didn't just mention in passing that she was married.  She presented a fraudulent marriage certificate.  This wasn't an innocent mistake.  It was the definition of fraud.  She created papers in order to defraud the US Government.  All else aside, that is not going to be an easy thing to get around.  

 

Do you have to live in the States?  Love is love and I truly hope you end up together forever but I don't see a circumstance where that is even possible in the US.  

Edited November 8, 2018 by John & Rose

[MacUK 983]

1 hour ago, John & Rose said:

 

She didn't just mention in passing that she was married.  She presented a fraudulent marriage certificate.  This wasn't an innocent mistake.  It was the definition of fraud.  She created papers in order to defraud the US Government.  All else aside, that is not going to be an easy thing to get around.  

 I don't think the OP ever said that there was a bogus marriage certificate involved. I've assumed that his fiance merely falsely claimed to be married when filling out the DS-160.

Still a serious matter to be dealing with but I imagine that counterfeiting official documents would have far more serious consequences than simply not being able to live in the U.S.

That would probably lead to criminal complications with her own government.

 

Maybe the OP can clarify, your fiance (or the agency that advised her so badly) didn't fabricate a fake marriage certificate did she/they?

[Justjake 23]

1 minute ago, MacUK said:

 I don't think the OP ever said that there was a bogus marriage certificate involved. I've assumed that his fiance merely falsely claimed to be married when filling out the DS-160.

Still a serious matter to be dealing with but I imagine that counterfeiting official documents would have far more serious consequences than simply not being able to live in the U.S.

That would probably lead to criminal complications with her own government.

 

Maybe the OP can clarify, your fiance (or the agency that advised her so badly) didn't fabricate a fake marriage certificate did she/they?

A fake marriage certificate was not created or produced.  The only indication of marriage is on the DS-160 when she listed her parents, and husband.

[John & Rose 7,239]

14 minutes ago, MacUK said:

 I don't think the OP ever said that there was a bogus marriage certificate involved. I've assumed that his fiance merely falsely claimed to be married when filling out the DS-160.

Still a serious matter to be dealing with but I imagine that counterfeiting official documents would have far more serious consequences than simply not being able to live in the U.S.

That would probably lead to criminal complications with her own government.

 

Maybe the OP can clarify, your fiance (or the agency that advised her so badly) didn't fabricate a fake marriage certificate did she/they?

She used a friends name as her husband on the application. 

Edited November 8, 2018 by John & Rose

[John & Rose 7,239]

14 minutes ago, Justjake said:

A fake marriage certificate was not created or produced.  The only indication of marriage is on the DS-160 when she listed her parents, and husband.

Which is, for lack of a better term, visa fraud. Now you have to prove she is legally free to marry. That will require a divorce decree or a death certificate of the husband.