Big Mistake?

[Maju 3]

My sister in-law is married to an American citizen. Lived in Peru for years. I advised them to do paper work there but they didn't. They came here, her and two little kids on tourist visa. They are looking for an apartment and He a job. Will then start the paper work for K3.

This is not allowed is it? They have nothing to go back to in Peru.

From step by step guide here on VJ

If you are already married, and your spouse came to the US on a tourist visa with the intent of immigration and marriage, then he/she should return to his/her home abroad, and the I-130 (or along with an I-129f for a K-3 Visa) should be filed with the relative outside of the U.S. to avoid denial, deportation, or even being banned from re-entry to the US.

[Pitaya 2,576]

Yep, could be very problematic for several reasons.

To use a non-immigrant visa (B1/B2) with immigration intent could be considered immigration fraud, and you stated the possible consequences.

The K3 spouse visa is not issued much anymore. Most folks file for the IR1/CR1 spouse visa. Here is a link to the comparison chart from the Guides section, easily accessible at the top of the forum page: http://www.visajourney.com/content/compare .

Wishing them luck on your immigration journey.

[Cyberfx1024 7,978]

That is correct since she entered in under a tourist visa with immigration intent and already married to the USC then it can be viewed as fraud. Tell your sister in law for her to go back to Peru and file the proper paperwork there, there is no work around while she is already here in the US. Do you know if the children are from the USC and current US Citizens?

[aaron2020 11,651]

There is no problem here at all.

Ignore the VJ guide. Ignore those that say this is problematic.

Since they are already here in the US, the following is their legal option going forward.

His wife and his children can file for Adjustment of Status (AOS). It will be treated like any other cases of Immediate Relatives of a USC . . . with kid gloves. Matter of Cardoza and Matter of Battista states that USCIS can not deny the AOS of an IR of a USC for immigrant intent alone.

Your SIL and her children do not have a problem. Since immigrant intent can not be used to deny AOS, their intent at entry becomes irrelevant.

Edited November 23, 2016 by aaron2020

[Maju 3]

That is correct since she entered in under a tourist visa with immigration intent and already married to the USC then it can be viewed as fraud. Tell your sister in law for her to go back to Peru and file the proper paperwork there, there is no work around while she is already here in the US. Do you know if the children are from the USC and current US Citizens?

No, the Dad has duel citizenship from Panama and US. For some reason I can not understand he gave them Panama/Peru

[Maju 3]

There is no problem here at all.

Ignore the VJ guide. Ignore those that say this is problematic.

Since they are already here in the US, the following is their legal option going forward.

His wife and his children can file for Adjustment of Status (AOS). It will be treated like any other cases of Immediate Relatives of a USC . . . with kid gloves. Matter of Cardoza and Matter of Battista states that USCIS can not deny the AOS of an IR of a USC for immigrant intent alone.

Your SIL and her children do not have a problem. Since immigrant intent can not be used to deny AOS, their intent at entry becomes irrelevant.

Thank you , I'll look into this. Having a Wife that speaks spanish she has meet many people from other spanish countries that are not necessarily here legally. Yet they have jobs and kids that go to school and even bussiness( not complaining about them, just the system)..... So there seems to be a way around everything. Thank you for the advice

[Maju 3]

There is no problem here at all.

Ignore the VJ guide. Ignore those that say this is problematic.

Since they are already here in the US, the following is their legal option going forward.

His wife and his children can file for Adjustment of Status (AOS). It will be treated like any other cases of Immediate Relatives of a USC . . . with kid gloves. Matter of Cardoza and Matter of Battista states that USCIS can not deny the AOS of an IR of a USC for immigrant intent alone.

Your SIL and her children do not have a problem. Since immigrant intent can not be used to deny AOS, their intent at entry becomes irrelevant.

Would her and the kids need to return to Peru every 6 months to keep from violating the tourist visa while waiting for the AOS?

[Boiler 43,434]

Stay file and adjust.

[Ketsuban 1,034]

Would her and the kids need to return to Peru every 6 months to keep from violating the tourist visa while waiting for the AOS?

No, once they file for Adjustment of Status they enter a period of "authorized stay". They're not yet permanent residents but they can remain while the paperwork has been filed and is processing.

Edited November 24, 2016 by Ketsuban

[aaron2020 11,651]

Would her and the kids need to return to Peru every 6 months to keep from violating the tourist visa while waiting for the AOS?

THey would not need to return. Leaving without AP or a green card would be considered abandonment of the AOS. Once the AOS is filed, they do not need to worry about the time limit for visitors.

The big issue is permission from the non-immigrant parent allowing the kids to immigrate to the US. The kids' father have a say.

[Cyberfx1024 7,978]

How is not fraud if she came into the country with the intention to immigrate?

[aaron2020 11,651]

How is not fraud if she came into the country with the intention to immigrate?

There are two sets of rules.

One set for when you are outside the US and are at the front door. The second set for when you are already inside the US.

Once the AOS is filed for inside the US, a second set of rules takes over.

The law does not have to make sense. It is what it is.

[NikLR 13,220]

How is not fraud if she came into the country with the intention to immigrate?

Because the CBP decided she didn't intend to immigrate and let her in. Unless she says at the AOS interview, yeah I totally meant to immigrate when I entered and lied to the CBP, I doubt anything will ever come of it. Even then they can't deny her without proof that's what she did (despite admitting it.)

[Transborderwife 4,666]

Because the CBP decided she didn't intend to immigrate and let her in. Unless she says at the AOS interview, yeah I totally meant to immigrate when I entered and lied to the CBP, I doubt anything will ever come of it. Even then they can't deny her without proof that's what she did (despite admitting it.)

even if she said that in her aos interview intent alone isn't enough to deny it.

[NikLR 13,220]

even if she said that in her aos interview intent alone isn't enough to deny it.

Exactly what I said. Nothing would likely happen even admitting to lying and having immigrant intent.