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Fiance work visa expired, travel visa NOT expired

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My fiance and I are getting married in one month. I am a usa citizen, he is korean. He has been here for about 8 years, entered legally and has a 10 year tourist visa. Currently, his work visa is expired but was stamped after receiving the tourist visa.

The tourist visa still stands until it's expiring date of 2016, right?

Thus, I don't know what paperwork to file.

Currently, his parents are trying to attend the wedding. They hired a lawyer.

The lawyer instructed we file I-130, I-485, and I-601a. I have no idea why, but they don't seem like the right forms. I Know after marriage we will submit these forms, but not before right?

I-130 - petition for alien relative? how can he file when he does not have alien residency yet?

I-601a - unlawful presence? why it is unlawful if he has a current travel visa?

I- Application to register as permanent resident. Can't this only be filed AFTER we are married and have a certificate to prove it? We only have the marriage license.

Any helpful information would be so appreciated!

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I cannot help you very much. However, he is not filing the I-130...you are filing the I-130 on his behalf.

His presence would be unlawful because it is against the law to use a tourist visa to immigrate.

Yes, all these forms will be filed after the marriage and you have the certificate to prove it.

Edited by Moustafa/Crystal

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After marriage you file those forms, the i-130 is the CR1 visa form, he'll have to return home after the wedding normally, but you are also applying for i-601a which is a waiver form. He is in the US on a B1/B2, getting married or applying and getting a job, or going to school invalidates the visa since those activities are in violation of it's terms, but the waiver SHOULD allow him to stay with you while it's processing, but there is no guarantee. The other form is part of the CR1/AOS combo that visa type grants status immediately upon issue if memory serves.

From what I've read he'd still have to interview at the embassy back home though.

Edited by JDWright

02 Aug 2012 -- Met online

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26 Jun 2014 -- Engaged :dancing:

15 Oct 2014 -- I-129F package finished and mailed to Dallas

17 Oct 2014 -- NOA1 (email) TSC

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I am the beneficiary

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You really need to do a lot of research -- beginning with the guides on this forum -- before you make a mistake in the process. There are a few big gaps in the information you provided for a full understanding of your situation. You seem to be confused about what a visa is and what that means in terms of authorized stay in the US. A visa grants you nothing more than the ability to travel to the US and seek admission. An immigration officer at the port of entry then determines your status in the US and how long you can stay.

Reading between the lines, I asuume your fiance entered on his work visa approximately 8 years ago and was admitted under a status that allowed him to work. The fact the visa expired is irrelevant -- the important thing is how long the immigration officer authorized him to stay. That is the date by which he needed to leave the US or officially extend his status with immigration. If it was an H1 visa, the maximum would be the length of the petition filed by the employer that qualified him for the visa -- usually a maximum of 3 years. If he didn't extend his authorized time, he is out of status and accruing time as an overtay. The fact that he has a tourist visa is irrelevant, since he wasn't admitted into the US as a tourist using that visa (i.e., he wasn't admitted in B2 status). Unless he got an approved change of status from USCIS, that is -- and that would never have been approved for far less time than the length of his tourist visa; maximum is six months. All of this, of course, is not correct if my assumption is wrong and he did extend or change his status in a timely manner or has left and re-entered the US on the tourist visa rcently. But, based on the forms the lawyer said you needed, I think the assumption is correct.

You cannot file any of the forms until you are actualy married, as others have said here. You then-spouse will be the immediate relative (the beneficiary) and you will be the petitioner. His parents can apply for approval to travel to the US without a visa under the Visa Waiver Program (again, an assumption -- they are South Korean citizens).

Edited by jan22

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hi

that lawyer is wrong, he does not need any waiver, overstay is forgiven because he entered the country legally, but he must not leave the country for now, I'm not sure but he changed his tourist visa for a work visa, so that tourist visa that he had no longer is valid

you can marry and file for CR1, but don't let him leave, because once his work visa ended, or he should have left before it ended or once ended he became undocumented or unlawfully present

at least he can't leave now until he has a travel permit with the adjustment of status packet, he cannot travel with the tourist visa anymore

once married you start the adjustment of status process, read the guides here

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I cannot help you very much. However, he is not filing the I-130...you are filing the I-130 on his behalf.

His presence would be unlawful because it is against the law to use a tourist visa to immigrate.

Yes, all these forms will be filed after the marriage and you have the certificate to prove it.

Seriously. Why is his presence unlawful? As long as he did not have the intention to immigrate when he entered, then using an tourist visa to enter is perfectly legal. Overstaying makes his presence illegal. Please be careful with your analysis and advice.

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My fiance and I are getting married in one month. I am a usa citizen, he is korean. He has been here for about 8 years, entered legally and has a 10 year tourist visa. Currently, his work visa is expired but was stamped after receiving the tourist visa.

The tourist visa still stands until it's expiring date of 2016, right?

Thus, I don't know what paperwork to file.

Currently, his parents are trying to attend the wedding. They hired a lawyer.

The lawyer instructed we file I-130, I-485, and I-601a. I have no idea why, but they don't seem like the right forms. I Know after marriage we will submit these forms, but not before right?

I-130 - petition for alien relative? how can he file when he does not have alien residency yet?

I-601a - unlawful presence? why it is unlawful if he has a current travel visa?

I- Application to register as permanent resident. Can't this only be filed AFTER we are married and have a certificate to prove it? We only have the marriage license.

Any helpful information would be so appreciated!

Hi,

Let's fix a few of your misconceptions.

The visitor visa's expiration is not how long he is authorized to be here. You need to check his I-94 to see if he is out of status.

Even if he overstayed his I-94, it's forgiven once he marries a U.S. citizen and files to adjust status for a green card.

You file after marriage because you will need to send a copy of your marriage certificate because he is applying based on marriage to a US citizen. No way to send that if you are not married.

Follow the Guides on this website. You need more than the documents you listed.

You file the I-130. You are petitions by him so he can apply to be me a legal residence. (It's like applying for a driver's license. A person who needs one applies. A person who already has a driver's license would not need to apply. Similarly, a person with legal residency would not need an I-130 since he already has it. A person wanting legal residency would need an I-130.)

Fire your lawyer. No way do you need an I-601a waiver if he entered legally.

His parents are South Koreans. South Koreans can use the Visa Waiver Program instead of applying for visitor visas. Have them apply for ESTA. It's easier to get ESTA/VWP than to apply for visitor visas.

Best of luck

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~~moved to what visa do I need from IR1/CR1 process and procedures~~

IMHO, get married asap and file for the adjustment of status.

EDIT:

~~Moved again to AOS from W,S&T visa from what visa do I need.~~

Edited by NLR

You have brains in your head. You have feet in your shoes. You can steer yourself any direction you choose.  - Dr. Seuss

 

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After marriage you file those forms, the i-130 is the CR1 visa form, he'll have to return home after the wedding normally, but you are also applying for i-601a which is a waiver form. He is in the US on a B1/B2, getting married or applying and getting a job, or going to school invalidates the visa since those activities are in violation of it's terms, but the waiver SHOULD allow him to stay with you while it's processing, but there is no guarantee. The other form is part of the CR1/AOS combo that visa type grants status immediately upon issue if memory serves.

From what I've read he'd still have to interview at the embassy back home though.

He does not need an I-601a waiver. He does not have a 3 or 10 years bar, and they are applying after marriage to adjust. He is not leaving to interview abroad. Edited by aaron2020

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hi

that lawyer is wrong, he does not need any waiver, overstay is forgiven because he entered the country legally, but he must not leave the country for now, I'm not sure but he changed his tourist visa for a work visa, so that tourist visa that he had no longer is valid

you can marry and file for CR1, but don't let him leave, because once his work visa ended, or he should have left before it ended or once ended he became undocumented or unlawfully present

at least he can't leave now until he has a travel permit with the adjustment of status packet, he cannot travel with the tourist visa anymore

once married you start the adjustment of status process, read the guides here

Once married, he files to adjust his status for a green card. He does not file for a CR-1 visa to enter the U.S. Since he is already here.

Furthermore, changing from a tourist visa to a work visa does not invalidate the tourist visa.

Edited by aaron2020

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Once married, he files to adjust his status for a green card. He does not file for a CR-1 visa to enter the U.S. Since he is already here.

Furthermore, changing from a tourist visa to a work visa does not invalidate the tourist visa.

That's not what I meant, it will be a conditional GC since they are married for less than 2 years and the other thing is that I stated that I wasn't sure, so thanks for clarifying

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After marriage you file those forms, the i-130 is the CR1 visa form, he'll have to return home after the wedding normally, but you are also applying for i-601a which is a waiver form. He is in the US on a B1/B2, getting married or applying and getting a job, or going to school invalidates the visa since those activities are in violation of it's terms, but the waiver SHOULD allow him to stay with you while it's processing, but there is no guarantee. The other form is part of the CR1/AOS combo that visa type grants status immediately upon issue if memory serves.

From what I've read he'd still have to interview at the embassy back home though.

No, he doesn't. He can adjust status and get a green card without leaving the US. Happens all the time.


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You found a ####### lawyer, and many people here before giving their opinions should learn a bit about Immigration Law. He does not need a I601 waiver, he does not need to leave the USCIS.He can file for AOS and get the GC inside the USA.He MUST NOT leave the Country before getting the GC. I doubt his parents will get a tourist visa with their son living here without status.

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