K3 and AOS concurrently...questions?

[athena_ny 1]

well, I don't think it's that unreasonable for someone to be in a rush to get married before they're being sent to Africa for 2 years for military training.

also, there is proof of date when you got married but there is probably no stamp on your passport as to when you entered so that date is anyone's guess.

This is true, however I remember having to physically write the date M entered on either our I-130 or I-485. So yeah, the OP could write a "fake" date, but if it's ever determined that she lied on that form, she could get into a lot of legal trouble with USCIS.

Edit: I forgot about the scanning of passports, like Reba said - they will know, and they will know if you lie.

Edited January 19, 2008 by athena_ny

[Reba 2]

... On the other hand I REALLY want to be able to file both at once to shorten our wait so that I can get a U.S. passport to go join him in Africa for the second year of his tour.

You will not be eligible for a US passport for several years, even if you you stay to adjust status and it is granted successfully. You need to have legal permanent residency status for 3 years based on marriage to a US citizen first, before you can even apply for US naturalization.

If you flew into the US, then record of your entry will be in the system from when they scanned your passport, whether or not you filled out an I-94. They know you're here, and when you arrived.

[pushbrk 12,160]

Oh yes sorry, I meant the I-130...that results in the K3 though right?

I am a Canadian so do not have an I-94, but I entered the day before our wedding in November and have six months to stay although I believe after I file the paperwork I can stay as long as it takes for it to be completed.

The immigration path that has you filing an I-130 and I-485 together doesn't result in any visa at all. It results in a green card. You are simply adjusting status to permanent resident. The green card is the evidence or documentation of the legal permanent resident status.

Your situation is unique enough you may well be successful but I would strongly advise you to see an attorney before filing.

If you do file, it would be wise to remain in the US until you have the green card in hand.

Edited January 19, 2008 by pushbrk

[rebeccajo 14]

Oh yes sorry, I meant the I-130...that results in the K3 though right?

I am a Canadian so do not have an I-94, but I entered the day before our wedding in November and have six months to stay although I believe after I file the paperwork I can stay as long as it takes for it to be completed.

The immigration path that has you filing an I-130 and I-485 together doesn't result in any visa at all. It results in a green card. You are simply adjusting status to permanent resident. The green card is the evidence or documentation of the legal permanent resident status.

Your situation is unique enough you may well be successful but I would strongly advise you to see an attorney before filing.

If you do file, it would be wise to remain in the US until you have the green card in hand.

That's right. You should definitely seek that advice of counsel. Some folks are reluctant to do that because of cost. But just because you consult with a lawyer doesn't mean you need to retain them. They may be able to ease your mind enough for you to handle the rest yourself.

The marriage and the timing of it (in and of itself) is not the 'issue' insofar as trouble for your case. The issue is 'intent' - what your intent was at your last point of entry.

A competent attorney will be able to help you sift through any 'proof' you have of your intent, and advise you accordingly.

[k2daho 0]

Do I take this to mean that there IS a way to turn our approved K1 into an I-130? I mean really it's all of the same initial paperwork, so I don't understand why we have to go through the process fully again...

Any experience doing anything like this???

Just to re-cap:

1-you're canadian,

2-live in the US with no visa,

3-can't work,

4-have an approved K1 but you're married,

5-marriage took place in the US while K1 was pending

You should probably apply for I-130 BUT you need to find out how you can convert K1 to I-130. I do know that you're NOT eligible for I-130 if you apply while living in the US. You should probably pursue it from Canada.

Visiting the US while the visa is pending is neither here nor there since it is the discretion of th POE officer. However, the onus is on you to inform the USCIS of a change in your marital status which again I think should be done as a Canadian resident.

[rebeccajo 14]

Do I take this to mean that there IS a way to turn our approved K1 into an I-130? I mean really it's all of the same initial paperwork, so I don't understand why we have to go through the process fully again...

Any experience doing anything like this???

Just to re-cap:

1-you're canadian,

2-live in the US with no visa,

3-can't work,

4-have an approved K1 but you're married,

5-marriage took place in the US while K1 was pending

You should probably apply for I-130 BUT you need to find out how you can convert K1 to I-130. I do know that you're NOT eligible for I-130 if you apply while living in the US. You should probably pursue it from Canada.

Visiting the US while the visa is pending is neither here nor there since it is the discretion of th POE officer. However, the onus is on you to inform the USCIS of a change in your marital status which again I think should be done as a Canadian resident.

No you can't convert your K1 to an immigrant approval. It's dead in the water now by virtue of your marriage.

[k2daho 0]

If we were denied and put into removal proceedings (most likely I'd just leave voluntarily if I was asked to) could I go back to Canada and then apply from there again? Or is it a one time only deal?

Basically, they can put you into removal proceedings if denied.

I haven't seen anyone denied on this board due to fraud, but I also haven't seen anyone apply who married the day after entering. That in and of itself looks suspicious, especially with a K-1 that was filed and subsequently approved. I'm not making a judgement call on what you did/didn't do, because that is not my place, but it could look suspicious to the IO. Having the K-1 in process in and of itself doesn't mean it's fraud, but that with the fact you married the day after entering and now want to stay could trip you up during the process. And like Gwen said, I wouldn't want to gamble my future on "it may or may not be an issue" or "a lot of people don't have problems".

You really need to speak to an immigration attorney asap, and if they advise you to return home and do a CR-1 or K-3, then it would probably be best to do that.

[k2daho 0]

I totally agree with you on why we were in a rush and I'm so surprised that there isn't more "wiggle room" for genuine situations like this, but I guess then everyone would come up with something that was unique about their particular case. Honestly I would hope that at the interview they would take this into account, especially as my husband is an officer in the military doing service for his country!

As for the date, no there is no stamp, and they didn't scan my passport as I entered by land crossing and I'm 99% sure they didn't scan it there. But I do not want to have to lie at any point, that would be out of the question for me.

well, I don't think it's that unreasonable for someone to be in a rush to get married before they're being sent to Africa for 2 years for military training.

also, there is proof of date when you got married but there is probably no stamp on your passport as to when you entered so that date is anyone's guess.

[rebeccajo 14]

If we were denied and put into removal proceedings (most likely I'd just leave voluntarily if I was asked to) could I go back to Canada and then apply from there again? Or is it a one time only deal?

Basically, they can put you into removal proceedings if denied.

I haven't seen anyone denied on this board due to fraud, but I also haven't seen anyone apply who married the day after entering. That in and of itself looks suspicious, especially with a K-1 that was filed and subsequently approved. I'm not making a judgement call on what you did/didn't do, because that is not my place, but it could look suspicious to the IO. Having the K-1 in process in and of itself doesn't mean it's fraud, but that with the fact you married the day after entering and now want to stay could trip you up during the process. And like Gwen said, I wouldn't want to gamble my future on "it may or may not be an issue" or "a lot of people don't have problems".

You really need to speak to an immigration attorney asap, and if they advise you to return home and do a CR-1 or K-3, then it would probably be best to do that.

If you are under order of removal, you are subject to the bar. 3 years for an overstay of 180 days to 364 or 10 years for an overstay of more than 365 days.

[k2daho 0]

Ok thanks, that's what I thought. I don't see why we can't even just attach our I-129F approval with our new submission...you'd think that would save them a TON of work!

Do I take this to mean that there IS a way to turn our approved K1 into an I-130? I mean really it's all of the same initial paperwork, so I don't understand why we have to go through the process fully again...

Any experience doing anything like this???

Just to re-cap:

1-you're canadian,

2-live in the US with no visa,

3-can't work,

4-have an approved K1 but you're married,

5-marriage took place in the US while K1 was pending

You should probably apply for I-130 BUT you need to find out how you can convert K1 to I-130. I do know that you're NOT eligible for I-130 if you apply while living in the US. You should probably pursue it from Canada.

Visiting the US while the visa is pending is neither here nor there since it is the discretion of th POE officer. However, the onus is on you to inform the USCIS of a change in your marital status which again I think should be done as a Canadian resident.

No you can't convert your K1 to an immigrant approval. It's dead in the water now by virtue of your marriage.

Edited January 19, 2008 by k2daho

[eau_xplain 2]

Do I take this to mean that there IS a way to turn our approved K1 into an I-130? I mean really it's all of the same initial paperwork, so I don't understand why we have to go through the process fully again...

Any experience doing anything like this???

By virtue of their marraige, they have technically invalidated the K1 and they cannot "convert" that to anything. They will not be doing the K1 + AOS but, rather, the AOS + I-130.

OP, I agree with most everyone who has posted here. Although you can technically apply for AOS+I-130 and stay here there are several factors in play in your situation that warrants a consultation with a good immigration lawyer. Please make sure that the lawyer you are consulting with has extensive experience with family immigration cases. I say this because we've personally had a bad experience with lawyers and try to avoid them if we can. But, in your case, it would be worth your peace of mind to consult with a good lawyer.

[k2daho 0]

Hi there,

I should be able to naturalize as soon as I have a green card as there is a special expedited process for this reserved for military/gov't family members if the service member is overseas and seperated from their family because of the family member. We will file that as soon as I have a green card. There is no residency requirement, etc as there is with regular naturalization. I assume I"ll be able to get a passport right after that.

... On the other hand I REALLY want to be able to file both at once to shorten our wait so that I can get a U.S. passport to go join him in Africa for the second year of his tour.

You will not be eligible for a US passport for several years, even if you you stay to adjust status and it is granted successfully. You need to have legal permanent residency status for 3 years based on marriage to a US citizen first, before you can even apply for US naturalization.

If you flew into the US, then record of your entry will be in the system from when they scanned your passport, whether or not you filled out an I-94. They know you're here, and when you arrived.

Thanks, very good advice. Any advice on finding a good lawyer in the DC area who has lots of experience???

Do I take this to mean that there IS a way to turn our approved K1 into an I-130? I mean really it's all of the same initial paperwork, so I don't understand why we have to go through the process fully again...

Any experience doing anything like this???

By virtue of their marraige, they have technically invalidated the K1 and they cannot "convert" that to anything. They will not be doing the K1 + AOS but, rather, the AOS + I-130.

OP, I agree with most everyone who has posted here. Although you can technically apply for AOS+I-130 and stay here there are several factors in play in your situation that warrants a consultation with a good immigration lawyer. Please make sure that the lawyer you are consulting with has extensive experience with family immigration cases. I say this because we've personally had a bad experience with lawyers and try to avoid them if we can. But, in your case, it would be worth your peace of mind to consult with a good lawyer.

Edited January 19, 2008 by k2daho

[Dan J 277]

CR-1/IR-1 Also results in a green card upon entry as it is an immigrant visa. There are unique factors in your case which could make AOS difficult and CR-1/IR-1 may be a better route.

But definetly, go see a lawyer. You can use this to help find one. http://www.aila.org/

[athena_ny 1]

Hi there,

I should be able to naturalize as soon as I have a green card as there is a special expedited process for this reserved for military/gov't family members if the service member is overseas and seperated from their family because of the family member. We will file that as soon as I have a green card. There is no residency requirement, etc as there is with regular naturalization. I assume I"ll be able to get a passport right after that.

... On the other hand I REALLY want to be able to file both at once to shorten our wait so that I can get a U.S. passport to go join him in Africa for the second year of his tour.

You will not be eligible for a US passport for several years, even if you you stay to adjust status and it is granted successfully. You need to have legal permanent residency status for 3 years based on marriage to a US citizen first, before you can even apply for US naturalization.

If you flew into the US, then record of your entry will be in the system from when they scanned your passport, whether or not you filled out an I-94. They know you're here, and when you arrived.

Thanks, very good advice. Any advice on finding a good lawyer in the DC area who has lots of experience???

Do I take this to mean that there IS a way to turn our approved K1 into an I-130? I mean really it's all of the same initial paperwork, so I don't understand why we have to go through the process fully again...

Any experience doing anything like this???

By virtue of their marraige, they have technically invalidated the K1 and they cannot "convert" that to anything. They will not be doing the K1 + AOS but, rather, the AOS + I-130.

OP, I agree with most everyone who has posted here. Although you can technically apply for AOS+I-130 and stay here there are several factors in play in your situation that warrants a consultation with a good immigration lawyer. Please make sure that the lawyer you are consulting with has extensive experience with family immigration cases. I say this because we've personally had a bad experience with lawyers and try to avoid them if we can. But, in your case, it would be worth your peace of mind to consult with a good lawyer.

Your spouse has to have at least a year left in their orders, according to USCIS's guide to naturalization so depending on how your timeline goes, I'd be careful with that.

[k2daho 0]

I was just looking into this actually. It seems more straight forward rather than doing the K3 and then adjusting status, right???

What is the downside?

Why would our situation make it difficult to do AOS if we did the I-130 first to get K3 and then did AOS after I entered???

CR-1/IR-1 Also results in a green card upon entry as it is an immigrant visa. There are unique factors in your case which could make AOS difficult and CR-1/IR-1 may be a better route.

But definetly, go see a lawyer. You can use this to help find one. http://www.aila.org/

My husband's job involves only overseas work, two year tours basically back to back with small bits of training back in the States so this shouldn't be an issue.

Your spouse has to have at least a year left in their orders, according to USCIS's guide to naturalization so depending on how your timeline goes, I'd be careful with that.