I wont go into it but we worked it out and want to get married again.

But before we reconciled I cancelled our K-1 which USCIS approved.
Now should we file a K-3 to avoid the 2 year IMBRA wait risk?

Or just CR1.

Our situation is similar to yours -- we never broke up or needed to reconcile -- she just needed more time to take decisions.

We consulted with an attorney who is well respected on this board, and she strongly advised that we get married. Our K3 seems to be proceeding OK.

Thanks folks!
I had a very helpful lawyer inform me that a K-3 has the same 2 year wait that a K-1 has. But this confuses me. From a USCIS fact sheet :

"
B. Filing Limitations


IMBRA imposes limitations on the number of petitions a petitioner for a K nonimmigrant visa for an alien fiancé(e) (K-1) may file or have approved without seeking a waiver of the application of those limitations. If the petitioner has filed two or more K-1 visa petitions at any time in the past, or previously had a K-1 visa petition approved within two years prior to the filing of the current petition, the petitioner must request a waiver. These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3).


1. General Waiver

The adjudicator may, in his or her discretion, waive the applicable time and/or numerical limitations if justification exists for such a waiver, except where the petitioner has a history of violent criminal offenses against a person or persons. The petitioner may request a waiver by attaching a signed and dated letter, requesting the waiver and explaining why a waiver would be appropriate in his or her circumstances, together with any evidence in support of the waiver request.



Factors the adjudicator should consider include, but are not limited to:

* Whether unusual circumstances exist (e.g. death or incapacity of prior beneficiary(ies));

* Whether the petitioner appears to have a history of domestic violence;

* Whether it appears the petitioner has a pattern of filing multiple petitions for different beneficiaries at the same time, of filing and withdrawing petitions, or obtaining approvals of petitions every few years.



Examples of acceptable evidence to support a waiver request include, but are not limited to: a death certificate, police reports, news articles describing an accident which resulted in the beneficiary's death or incapacity, or medical reports from a licensed medical professional regarding the death or incapacity of an alien approved for a prior K visa. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the adjudicator.

Some examples of possible scenarios are:



* A petitioner who has no criminal history with regard to one of the specified crimes requests a waiver of the filing limitations. The petitioner has one prior approved Form I-129F for the same fiancé(e), and files a report from a physician detailing the illness of the beneficiary that rendered her unable to enter the United States within 90 days. Absent any other adverse factors, the waiver may be granted.



* Conversely, a petitioner who has no criminal history with regard to one of the specified crimes requests a waiver of the filing limitations. The petitioner has previously filed a Form I-129F, for 12 different beneficiaries. The petitioner has submitted no supporting documentation explaining why a waiver of the filing limitations would be appropriate. Absent any favorable factors which may outweigh denial, the waiver should not be granted.

"

According to site statistics (which are only there to guide you), you would be looking at roughly 215 days from start of process to receiving the visa on the K3 , then a further 7 or so months for adjusting your status to a lawful permanent resident once you are in the States. The I130 is shown as an average of 305 days and the K1 as 182.

The two year rule means if you file again you must request a waiver. The multiple filing rules were meant to involve situation where it is two or more alien beneficiaries. However, there is some dispute as to whether the USCIS is adjudicating properly.

ding,

IMBRA is attached to the I-129f petition. Even so I don't understand what you mean by "wait risk", and you will want to explain the situation when you submit a new petition whether that petition is I-130 or I-129f, and without regard to IMBRA.

Yodrak

Thanks to all, I'm grateful for the help.

Yodrak,
by wait/risk I mean the risk of a 2 year wait if the waiver request is denied.
So if I understand correctly, since IMBRA is attached to the I-129F the 2 year wait could apply to the K-3. So, my immigration attorney advice is right, and the USCIS fact sheet is wrong???
"...These limitations do not apply to petitioners for a K nonimmigrant visa for an alien spouse (K-3). "


fwaguy -That is hopeful. And I really need to let go and have hope on the application. I think I'll request that it be a consideration. Thanks!

All provisions of IMBRA apply to K-3 except the multiple filings limittion

Thanks fwaguy, that agres with my congressman's forwarded USCIS fact sheet.

I don't want to undermine my lawyer's advice but I need to ask for help.

I go to Thailand in August. I think we should marry and file a K-3.

Lawyer said all the IMBRA provisions apply to K-3 even when I specifically asked about the 2 year wait - and said we should file the new K-1 ready to send. Says maybe marry in Aug and file K3 when K1 fails. But I think I need a visa stamp in passport for that date and need to travel there anyway for the date of marriage.


He's good and does this a LOT! He's filing our second K-1 for free, so is very helpful too. So I'm really stumped here. But need to move on it.

Surely a situation where you're petitioning the same person should be easily waived, no? I know we don't have a whole lot of data on this yet, but haven't most of the waiver stories here been successes?

My congressman's immigration specialist suggested I could go with the I-130. He says it's showing about the same time on he USCIS website. He says the K-3 was just to clear a backlog and since it's eased, the K-3 is not such a popular choice.

But since the K-3 includes the I-130 I don't see a reason not have both applications in play... just in case the immigration for family member situation changes.

USCIS processing times are similar but that's less than half the process. However, if you file both petitions, and the I-129F is approved first or at the same time as the I-130, the policy now is to hold the I-130 at the service center for use in the status adjustment. You do not end up with two petitions in play anymore. I suggest you weigh the advantages of a CR1 (immigrant) visa against the time difference from filing to visa, not just USCIS processing times.

CR1 average:
Processing at the CSC takes 112 days to NOA2
Bangkok interview is 217 days after that NOA2
So, 329 days to interview -Then we're together (that's all that matters to us)

K-3 average:
Processing at the CSC takes 106 days
NVC Dept. of State time 23
Bangkok embassy takes 61 days
So, 190 days to interview

I may have missed something, not sure... and I did check after your first suggestion and came up with the above average times to interview. All we care about is being together, not her ability to work, travel, or citizenship status. Are there advantages to the CR1 I missed?

ding,

Your risk should be about 0.

Yodrak