Hello everyone and thank you for this great site. Even though I haven’t found answers for all my questions (that’s why I’m posting this ;-)), it’s a gold-mine of information!
My situation is a little complex… As you’ll read, I’m a little desperate. I hope some of you will be able to help. I’ll try to be as thorough as I can…

I’m from Belgium and spent two years as a student (I did an MA) in the United-States on a J-1 visa with 2-year restriction (I was “subject to 212(E)”). The reason why I had this restriction is because I was a Fulbright student (so – to anticipate your reactions - no waiver possible (this is a very specific case where State Department does not allow waivers)). I studied there from August 2003 to July 2005.
I met my wife when I was there. I came back to Belgium in mid-July 2005, thus, and she came and joined me a little afterwards, in the end of August 2005. At that time, the idea was for me to spend those two years here in Europe and be rid of it.
We married a year later in Illinois, in August 2006. Before that, we spent two weeks in Easter in the US (to prepare the wedding), then around a month and half in the summer for the actual wedding. We came back after the wedding and I resumed my job.
Now, it has been less than two years before my return and my wife has applied to Law School in the US while I have been investigating doing a PhD in the same US university. My first (and very naïve, I realize now) idea was that, in all cases, I could apply for a student visa, leave in August 2007, and come back later to Belgium to finish the couple of months I would still have left.

After talking to someone working for the service of International Students Affairs at my former US university as well as to an immigration lawyer, it looks like I’m unlikely to be given a student visa as I’m now married to an American and – obviously – my non-immigrant intent is (rightly) highly questionable. So it looks like the next logical step is to ask for an immigrant visa.
That’s where the troubles start, particularly since we’re receiving conflicting information from the various “actors” who are supposed to help us in knowing what we should do.

First of all, our first question is of course “did my time spent in the US (preparation of the wedding, wedding itself, around 2 months all in all) stopped the clock (read: did not count towards fulfilling the two years)?”. From what we read from various sites, what one immigration lawyer told us and, well, the name of the restriction itself (“physical residency restriction”), we assumed that my two years would not be done with in July 2007 but two months later, in late September. BUT when we went to the American Embassy in Brussels, however, and talked to a clerk working there, she told us that this time spent in the US did not stop the clock and that I could therefore start immigration procedures in mid-July. We were surprised but she did go and ask the consul in person and came back with the same answer. So now we’re lost as whom to believe.
The thing is, if I can indeed start immigrant visa procedures then (in July), my wife will still be in Belgium (she won’t otherwise, since in late September 07 she will have been in the US for a month, studying) and we can then start it from here instead of doing this split procedure thing (she there, me here). Here, too, though, I’m perplexed. I’m reading everywhere (including on this site) that the rules have changed in that respect (DCF). Am I right to believe that some embassies still allow Direct Consular Filing? Could the Brussels Embassy be one of them? The clerk at the Embassy said they could, so I can believe her, right? (yes, this is how paranoid we’ve become)
The clerk at the Embassy said that the whole procedure took on average 6 weeks, but she of course would not commit and said it sometimes took a little longer, depending on how much time the FBI check on my wife would take in the US and the Embassy’s workload. Now, I’m also a bit surprised, here. I’m reading of people (again, including on these forums) waiting months before getting even just interviewed, let alone getting the visa itself. Whom should I believe here? Could it be that the Embassy in Belgium has a lot less workload that some other embassies around the world and can therefore process things a little faster? It just feels weird that she should have told us that 6 weeks was the average time if it isn’t (what would be the point in making it up plus, well, she works there, so she knows, doesn’t she?). We’re also receiving mixed messages about what takes longer, between the DCF procedure and the procedure of my wife and I doing it separately (she in the US, I in Belgium)… Any help about this would also be appreciated.

Another big question we have is the following: “What if my two years were not actually up and we still applied, would my application be “denied” in a very official way?” I mean, the Embassy had posters all around saying that people whose visa application had been denied were not allowed to travel to the US anymore on the visa-waiver program and, obviously, I really want to avoid that. Would the procedure be stopped at the very beginning by the consular officer (who would just tell me to apply later) or would the whole procedure officially start and my request be denied later – with all the complications a denial entails?

And of course, that’s not all… (thank you to all those who had the courage to read this far… and sit tight, it’s getting more complex still)

Now, the immigration lawyer my mother-in-law contacted in the US seemed to come with an easy answer but, somehow (my paranoid side again, maybe), it just seems too good to be true. According to him, I should go to the US once my two years are up (according to him, in late September, thus) as a tourist, wait a little bit more than a month and then apply for an immigrant visa on the spot. According to him, my asking for an immigrant visa would somehow allow me to stay there for as long as it takes for the application procedure to reach its end (thus allowing me to overstay the original 90 days allowed by my tourist status (but I have the feeling I read somewhere overstays by more than a year would be illegal, am I right?)). For some reason, I’m a bit uncomfortable with that option and, somehow, I’m not sure it could be that easy. Once again, I’d be extremely grateful if you could enlighten me. First of all, it seems from what I’ve come across on the net that, even if I do that, I’ll still have to go back to Belgium to get interviewed. Am I correct? And if it is so, then will I not take the risk of waiting here in Belgium forever for an answer anyway? Furthermore, it seems to be a rather “aggressive” way to ask for immigrant status. I mean, am I not going to piss off authorities if I “trick” them into entering the US as a tourist (thus with officially no immigrant intent) only to start such procedures once I’m there? And if such approach is possible, how much time does it take to reach its end? See, one of the problems is that we have an immigration lawyer on the one hand who says that it takes longer to do it via DCF and thinks doing it as we’re both in the US would be faster and, on the other hand, a consulate clerk who tells us that the process takes on average 6 weeks via DCF and that it takes usually longer when people do it separately (one spouse in the US, the other abroad). So I’m confused as to what the best – and “real” – options really are.

Needless to say, all this visa headache also has the whole studying-in-the-US background complicating it. I think it makes sense for me to give up on trying to start my PhD studies in the Fall (even though, according to that consulate clerk, I could – theoretically – receive my immigration visa 6 weeks or so after mid-July), but the question is whether planning to even start in the Spring of 2008 is actually realistic.
How big are my chances to be in the US by then and, according to you, what would be my best strategy? Should I trust my mother-in-law’s immigration lawyer? Should I trust the consulate clerk? Would the consulate officer tell me straightaway if my two years are considered “up” or would I be told later? If they’re not up and I still applied, will that jeopardize my next attempt at getting an immigrant visa?
Obviously, staying in Belgium for another academic year and start the process from here would save my wife and I many headaches, but my wife has been accepted to Law School with exceptional financial aid and we’re not sure this aid would be renewed in the case she postponed her studies by a year.

Argh! It’s kind of frustrating to see how incredibly easy (and, may I add, inexpensive (no more than 20 euros or so(!))) it was for my wife to get a work permit here in Belgium (and I’m not even mentioning the social benefits going with it and incredible medical coverage she got even as a student) and how complicated it is to get one for me in the US… but we have no choice but play with the rules, obviously.

Thanks in advance for any piece of advice you’ll be able to give us. We’ll appreciate any help you can offer :-)

Mayuki

Wow. What a post.

Okay......I actually did read it all........as best I could. I'll do my best to help.

First, the clerk at the consulate is dead wrong. The time you spent in the USA will/should/might count against you. By law, it is supposed to...........but then again, it depends on the consulate you go through as to how closely they will follow it. For 2 or so months, they might overlook it. I wouldn't count on it, but it's been known to happen.

How they will deal with it is anyone's guess. You need to make calls to the consulate, or email, and see if you can get hold of someone higher up in authority to see how they'll handle it.

But, they are technically supposed to deduct the 2 or so months you spent in the USA....which would put you behind schedule a bit.

It is also hard for me to say whether you can "start" the petition ahead of time (like you can with an I-130 from the USA).......because I have no experience with DCF. That's a tough question to answer. They might let you begin the process, and just "hold" the visa until your 2 year HRR is up. Some Embassies do that. You should ask that question before you attempt to start the process ahead of when your two years are up, if that is your plan.
But , never having done DCF .....I can only guess at what the policy is.


I am not sure if I totally understood what your lawyer was telling you. You said he told you to come when your 2 years are up, and then apply for an "immigrant visa" (huh? )....from the USA? Are you sure he did not mean do AOS instead? Very strange if he told you that.....and then you'll have to come all the way back to Belgium. If so, then what's the point of filing from the USA to begin with? I think he meant AOS.

In either case, it is NOT faster to file for an immigrant visa from the USA. The application for my wife has taken almost a year......and we are still not done.......we almost have the visa, but not quite yet. If the DCF takes 6 weeks........geez....do that! Sounds a LOT better than a year.

Finally, whatever your lawyer meant........for him to even suggest you come to the USA, while already married, as a tourist......to either do AOS or file for an immigrant visa............that could get you into trouble. I would not suggest doing that.

Good luck.

It's a Home Residency Requirement, and hence means you have to be "home" for 2 years. They have other rules if you're out at other countries as well. So unfortunately your 2 years isn't up till september.

About the DCF, make sure you can actually do a DCF in Belgium if your wife is not a Belgium Resident. Most DCF's require that the USC is also a resident (sometimes living there for 6 months is enough to show residency). You should check with the embassy. Embassy Info Section on VJ doesn't say whether residency is required for the Brussels embassy.

My wife also had a J-1 2 year restriction, and we filed for the I-130 about 4 months into her 2 years. USCIS where you file the 130 and (129f if pursuing K3) will not look or care about the 2 year rule. So together with the 130, we also filed for a no-objection waiver and that got approved in about 3 months. Now I can't say for sure but I don't think my 130 was even looked at during this time, but to be honest, I don't think it would've mattered either way.

The only "check" for the 2 year requirement seems to be when you're at your interview, and have ot fill in and sign the DS-230 part II, item # 30.j where you have to check yes/no to whether you're "An alien who is a former exchange visitor who has not fulfilled the 2-year foreign residency requirement"

My advice would be to go the K3 route and hope that your visa interview is not till September. Which is highly likely anyway.

Thanks for the super-quick reply, MPGGPM and NY IZMIR, I really appreciate it :-)

I guess the lawyer did mean Adjustment of Status (AOS). Until now, I had thought about it just as “asking for an immigrant visa there” but I see the difference in how to refer to it now, so that helps (mainly also because I’ve checked and seen the various documents we would need for it, a lot more than if we do it through DCF, it seems). You confirm what we thought, which is that, on the whole, the whole procedure of AOS is heavier, takes more time and might be a little riskier. On another site, I read that AOS could be denied on the grounds that someone has entered the US as a visitor on a visa-waiver program. The same site stipulates that such ineligibility for AOS usually does not apply to immediate relatives of US citizens (which would be my case), I’m thus a little reassured. However, I’m still wondering how, in the eyes of US authorities, my using a tourist visa in order to ask for AOS immediately after can be interpreted…

You also confirm our idea that the two years would not be done in July. When you think about it, though, the clerk did talk for a little while with someone she referred to as “the consul” (would that be the same person as the “consular officer” or someone even higher-ranked (just before the Ambassador himself)? ) before getting back to us (we were waiting in the waiting room) and telling us I could apply in July. Could it mean the person in charge, from the elements he gathered from that clerk, wanted to make us understand that he would not oppose our filing a request at that time? From what you say, it looks as if it’s kind of up to consulate authorities to accept to start the procedures before the end of the two years or not even though, as you also said, the law says they should wait. Do you guys think that, if the time is sort of short (again, around two months), there could be ways in which the consulate officer might be more likely to be okay with it? In my case, for instance, I was employed non-stop for those two years (my contract runs from October 2005 to October 2007 (I’ll break it if needed)) and the only reason why my wife and I went back to the US was in fact to prepare and organize our wedding. Do you think that directly asking the consulate officer NOT to deliver my visa before mid-September would help? Do you think maybe he had in mind that, in all cases, I would probably not get it before my two years were up, anyway? Would bringing on the table proofs that I intend to still be here anyway until my two years are up help? I have a conference to go to here in Belgium in October and, obviously, I will more than probably just stay here until then. Would bringing that kind of proofs of my wish not to “cheat” the (2-year) system play in my favor and possibly help the officer decide to be flexible? As I explained, as a Fulbright grantee, I unfortunately cannot ask for a waiver. Again, the main problem here is that, if I’m not allowed to start the procedure in July,
AOS seems to automatically become my only other option (and I don’t like it either, as it seems riskier) since, in September, my wife will have left the country to study in the US and, as a result, DCF will not be possible anymore… Or could the Embassy accept the first part of the filing (the one for which my wife is needed) and then go on later, even though my wife has left the country, with the second part once my two years are up?

I realize it’s a lot of questions dealing on how consulate authorities “read” things and it possibly depends on each individual embassy and – in fact – probably on the very personality of consulate officers. I was wondering if any of you had any insights/stories about this to share and/or if you know how “flexible” consulate officers really are / have the right to be…

Sorry for another loooooong post and thanks again for any help you’ll be able to provide!

Here's from our experience - mind you, we did DCF before the Adam Walsh act entered into force. Our application was approved on the spot and then forwarded to Zagreb for further processing. All in all from submitting the petition to visa in hand took mere 54 days! (would've been even less had I known all would go that smooth and fast) - see my signature.
It is true that it depends on CO whether they will take into consideration you only have two more months for the J-1 HRR to be up. Like someone else already did, I do suggest emailing the embassy or making an appointment with the consul and going there with all the questions you may have - they will give you correct info. Then in July, you can submit the application and I am guessing that within 2-3 months (could be even less) you will have your visa in hand, HRR lifted. I highly recommend doing the DCF since you will I guess go for the CR1 visa and that is GC in hand a month after you enter the States. Definitely beats doing AOS.

I would not recommend going to the States on tourist visa and doing AOS there - it takes from 3 months to a year depending on the office where you file. Also, upon entry they do ask why are you coming and if you say you're coming to live with your wife it's a clear immigration intent and they can put you on the next plane back to Brussels.

Is there a possibility of you following after your wife (so she would not pass on her Law school opportunity) i September and you then could start in the winter semester or even fall next year your studies?

Hope I helped a bit, if you have more questions feel free to ask.

First of all, if you do AOS "immediately" after you enter the USA, and especially when you are already married and have the "intent" to do so, I do believe you are going to get yourself in a lot of trouble. And , even if you wait the typical 60 days or so I still would feel nervous about it. And let's say you DID wait 60 days or so to apply, after you entered the USA, wouldn't that kind of defeat the whole purpose of doing AOS to begin with then ,because if you wait 60 days your DCF would have been done by then anyhow. Better to have just stayed and done the DCF in Belgium.



Here's the thing. It IS possible, but know one will know for sure. I personally know of one person who actually posted on this website about a year ago, who was able to get his wife the immigrant visa 5 months ahead of when her 2 years were up. In his case, he contacted his congressman for help, and also had his relatives and friends sign a petition on his behalf. (guess nothing gets a senator's attention more than a document with a lot of "potential voters" signatures ). Although...................to this day, he is still not sure if it was the senator's office that did the trick, or his wife was just "lucky". The senator's office never confirmed anything.

I also read one account from another person on VJ aboout someone getting the visa 2 months early, and I have read on other websites about others who have not served their full time, but received it. However, I do not know of those actual cases firsthand......like I do of that first one I described.

Then again, I have also read about how other consular officials will actually ask the person applying , for the passport, and then they will "count" and add up the days of "physical presence"........and are very picky with the rule, to a tee.

So....bottom line.......who knows what will happen? It's anyone's guess as to how picky the consular officer who interviews you and adjudicates your visa will be with the 2 year rule.






I know being a Fulbright, is more difficult to get a waiver, but I could swear I've read of some getting it anyhow. But, in either case.........I do understand and am familiar with how difficult it is for a Fulbright to get one.

When you file from the USA, the application will go through USCIS, and will go through the NVC, even though the 2 year residency has not been served. It's not a problem, to file for a visa ahead of time. However, once it gets to the Consulate or Embassy, that is where they will actually take into account the rule, and where the application might run into a problem if the time was not served.

Now, since you are actually thinking of bypassing USCIS and the NVC.........and starting right from the Consulate, that's the problem. Because you intend to start at the point where most other applicants, by the time it reaches that point, have served their 2 year HRR by then because it takes so long to get there.

However, since even by doing DCF , it will take a bit of time, 6 weeks to 2 months, going by what I am reading from you and the post above me, then "maybe"......since there is also a "waiting" period while they research your case, they "might" also allow you to start the application ahead of time, much like I was able to do with my I-130 from the USA. Just guessing, I would imagine that if I can submit an application ahead of time from the USA, and it is okay to do so, then probably the Conuslate, being that it also takes a while to process an application from there, will allow you to file ahead as well.

It's always good to do what you are suggesting. Try to dicuss your situation with someone, and perhaps, with your honesty, and with explanation of how you are not trying to "cheat" the 2 years etc.....they might listen. I have , on occasion, for different reasons, been able to meet with Consular officials. From my experience with doing that, I have found that there are some very well meaning people who work at the Consulate, and who ARE willing to listen. They were very helpful to my wife and I. (My discussions with them were not about the 2 year HRR.....was something else).

Perhaps, you will be just as fortunate as I was...in that respect....and they will be just as helpful with you.




I'm skeptical of this. But......who knows?





Eh....no problem. I have that bad habit too

The way I have always heard it, you have to count every day in your country ONLY toward your two year HRR. Period. The way you will find this for fact (seems to be what the other posters said) is when you appear for your visa interview. If they can issue the visa (and you otherwise qualify), they will. If you have time remaining, they will not.



You can START the IV process now. Your spouse can file I-130 and her part is then done. She can leave if she needs to, and you wait to complete your Immigrant Visa application.

ALL Consulates are now accepting I-130s from USCs who are resident in their district. Period. All of them. If your spouse has been living in Belgium for 6+ months, there should be no question about 'will they or won't they'. (one nice thing about the recent change!)



That is standard--they can not guarantee how much time YOUR case will take; the average case takes 6 weeks.
I'm not sure what you have been reading, but you have to compare apples to apples, that is, other people filing for the same benefit from the same Embassy. For ex, my case took 33 days, so I could say, what's taking you so long?!



File in Belgium = 6 weeks. File from the US = 9 months.



No. If you qualify otherwise but have not completed your HRR, they simply hold your application until they can issue the visa (from past board experiences).



Your instincts are correct. That method of immigrating on a non-immigrant option, and possibly concealing yoru intentions from a Border Agent, is illegal. Please see the following--married couples are no less a part of the same law than fiances:

http://www.uscis.gov/files/article/A2.pdf

What if my fiancé(e) uses a different kind of visa, or enters as a visitor without visa, to come here so we can get married?

There could be serious consequences. Attempting to get a visa or enter the U.S. by saying one thing when you intend another may be considered immigration fraud, for which there are severe penalties. Those penalties include restricting a person’s ability to get immigration benefits, including permanent residence, as well as a possible fine of up to $10,000 and imprisonment of up to five years. It is not appropriate for your fiancé(e) to enter the U.S. as a visitor with the intent to marry you and remain to try to become a permanent resident. It is appropriate, however, to enter as a visitor to have the wedding in the U.S. and then return to a foreign residence for further processing for U.S. immigration as a spouse.
You should come prepared with proof of your clear intentions in this regard.



To me, it appears you go file via DCF and move over here this summer. Get organized--it's really much simpler. I'm sure you can make some accomodation about your start date at school, even if you need to wait out your HRR. I would find a date calculator online and get an absolute accurate count of every day at home. I know when counting time out of the US for naturalization to USC, any portion of any one day in the US counts as a full day.



I guess the obvious answer is the number of people wanting to move into the US is higher than the number going to Belgium. The year we first applied, the Dept of State accepted over 10 *million* visa applications worldwide in the Embassies. They deal with a high volume of people.
Check out the DCF Guide for tips on the benefits you will have from the get go (work permit etc) and then compare it with what you would get by coming as a visitor (because the rest was 'too much hassle') and you will find the real meaning of hassle....

That should read as ...."probably" will not. I seen several cases (or heard of anyhow), where the visa was issued ahead of time. Those were the lucky ones.

It's really up to the person adjudicating it. Apparently, some consular officals are more picky on that rule, than others.

Thanks!
(I couldn't bear to comb thru the answer posts--I'm sorry! You know I don't *do* that, but Jeez, you guys (all) had a lot to say!)

Yeah...that's true.

Tell ya what. Next time we bring up the subject of Greek good luck charms.......we'll be sure to let ya know

lol, cheeky.
(today I've got UK, so your mileage may vary)

Kalo Pascha!

Oh...how nice.


And the same to you.

<g> I pulled that out of deep dark memory, btw. Not celebrating anything, anytime.

Wow, thank you guys! I can’t tell you how much your feedback helps and how lucky I feel having come across this great forum. A little ray of sunshine in what had been pretty gloomy days so far.

You all confirm my feeling that AOS is definitely not the best idea, that it’tricky, dangerous and, well, much more of an administrative pain than DCF. Given the cards he had in his hands, I understand the lawyer proposed that option, but now that we see things more clearly, it’s obviously one we would want to put at the bottom of our list. Again, starting my stay in the US by tricking authorities felt somehow wrong (even if I totally understand that some people might not have any other choice), so I’d be glad if I don’t have to do that.

At this point, I think our “strategy” will be indeed to follow that clerk’s advice (and yours :-)) and apply in July via DCF. What I a m going to do is also come with a couple of “proofs” that I do intend to stay in Belgium for a little while still and do intend to finish my two-years here anyway. I thought about it and realized that the fact that my work contract ends on the 1st of October could help. So I’m in fact definitely not going to break it but instead use it as a proof that I’ll still be in Belgium by then. I am also participating in a conference (as a speaker) organized in Belgium in mid-October, so I’ll ask the organizers to write me a letter stating I’m expected to participate, another proof I’ll still be in Belgium by then. Hopefuly that will help convince the Embassy to file my request a little earlier than the real end-date of my two-years. And with a little luck, I’ll be able to come join my sweetie before Christmas :-) As you said, MPGGPM, I think that, while they are some people that are very picky with rules (as they should but, well, you know...), some are willing to listen and take individual cases into consideration. It has been my impression that the people working at the Brussels Embassy (the couple of times I had to deal with them) were really nice, so I hope this impression will be confirmed.

Meauxna, your information is also very reassuring :-) ... If my wife can file the I-130 ahead of me, then it does makes things a lot easier, too, as it means that, if I do have to wait September to start the process myself, we’ll still be able to do it via DCF even though, in mid-September, I think she will officially stop being a resident in Belgium. But hopefuly we won’t have to go to that extreme. It’s also good news that DCF is now available again everywhere. Between you and me, I’m a little pissed at the people from the German call center who, well, despite the insabe amount of money they cash every single time you talk to them, don’t always seem to have a clue. The woman we talked to (no more than a week ago) swore DCF was not possible anymore in Brussels, which the Embassy employee denied straightaway when we talked to her. Some communication issues, there...
Yes, you are right, I should obviously not compare immigration demands towards the US and towards Belgium... hehe. 10 million is a pretty crazy number. It is funny, though, when you think about the kind of social and medical benefits European countries offer almost at the drop of a pin. But, well, Europe comes with some other disadvantages as well. For my wife and I, both places come with their pros and cons, which makes deciding to live in one place rather than another really difficult...
And, wow, 33 days... that’s awesome! ;-)

And yes, Melimelo, I’d be then shooting for starting classes in January. Both our programs last three years, so I’d be a semester off, but, hey, I can’t be too demanding at this point... When I contacted my department in the US a couple of months ago, they said starting in January was usually not possible, but the woman responsible for the program is really extremely nice and said she’d look into the matter. So I’ll just have to keep my fingers crossed! :-)

So, again, thanks a great lot for your help and patience (I’m still amazed you read through all my long posts... hehe)! I hope one day I’ll be able to help people around in the same way you helped me and my wife :-) ... It goes without saying that I’ll keep you posted on how things go for us :-)