Third country national better to apply from their home country?

[JasonPF 0]

I've searched the forums and not found any threads with this same question.  My fiancé is Colombian but she is currently living in Spain.  She arrived there in October of 2019 on a tourist visa and applied for asylum.  She was given permission to stay in the country until her asylum appointment, which was scheduled for April of this year.  However, the Coronavirus hit and all immigration offices were closed while Spain was in quarantine and her appointment was cancelled.  Eventually they reopened in July but they didn't start working on their backlog of missed appointments.  She's been trying to make another appointment for months now but she keeps being told that office is not scheduling new asylum appointments, she should come back, etc.  

 

Now I have proposed and I want to start on the I-129F.  My question is, would it be better for her to return to Colombia or stay in Spain?  She does not really want to return to Colombia (she applied for asylum for a reason), but I'm concerned that her immigration status is Spain would reflect negatively on her.  To be clear, she is not in Spain illegally.  However, if the Spanish immigration office starts taking appointments again and denies her asylum, they give her a deadline to leave Spain and she doesn't, she WILL be in the country illegally.  In a perfect world, the US Consulate would not care about her immigration status in a third country, but I don't know what criteria they are looking at.  I can't imagine it would be good if she goes to a visa interview while she's currently overstaying a visa.  If they ask (would they ask?) and she answers truthfully, they could say "Obviously this person has no respect for immigration law" and deny the visa.

 

Now, if her asylum claim is denied and she is told to leave Spain, and she actually does return to Colombia, what does that do to the application?  If I fill out the I-129F saying she's in Spain, then receive the NOA2 and need to make a Consulate appointment and she is no longer in Spain, is that an easy problem to solve, or would I have to start the whole process over again?  There are a lot of threads in the forum about address changes, but I've yet to find someone moving between countries.  The I-129F specifically asks which consulate she will have the appointment at, so is it a problem to change this during processing?

 

I've tried contacting USCIS but I haven't gotten a response yet.  I'm hoping someone here has some insight.  I really don't want to ask her to return to Colombia but I really don't want to add more time to an already lengthy process.

 

 

 

Edited August 29, 2020 by JasonPF

[Crazy Cat 42,669]

Normally, a K-1 applicant must reside legally in the country where they interview.  The place of interview can be in either the country where the applicant resides or it can be in the applicant's home country.  You would simply request a transfer  of the case to the appropriate consulate.  This situation of transferring a case is not uncommon.  It happens......

Edited August 29, 2020 by Lucky Cat

[JeanneAdil 6,721]

and she will need to be able to get criminal reports form both countries as she will have lived in both over 12 months

[SalishSea 18,236]

Wouldn't returning to the country she's seeking protection from persecution impact her legal status in Spain?

 

At least with US asylum, you can't have it both ways:  its either too dangerous to go back, or its not.  It really shouldn't depend on what is convenient...

[JasonPF 0]

Thank you so much for the replies Lucky Cat and JeanneAdil.  It sounds like maybe I shouldn't worry.

[Chancy 6,243]

  On 8/29/2020 at 4:38 PM, JasonPF said:

If I fill out the I-129F saying she's in Spain, then receive the NOA2 and need to make a Consulate appointment and she is no longer in Spain, is that an easy problem to solve, or would I have to start the whole process over again?  There are a lot of threads in the forum about address changes, but I've yet to find someone moving between countries.  The I-129F specifically asks which consulate she will have the appointment at, so is it a problem to change this during processing?

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Since you have yet to file the petition, it will take a long time before you need to worry about where your fiancee will have her interview.  But when that time comes, for your reference, here are some couples who successfully transferred their cases to another consulate: