Refiling for Same Beneficiary

[Jose V.. 0]

Hello everyone, I just wanted to get some advice and guidance on how my fiance and I should continue our process to be together. My fiance recently had her k-1 visa approved a few months back and came to the US to be with me in July. Unfortunately, she had to return back to our native country to be able to finish getting her degree. She was suppose to be done with school by the time the Visa was approved but she had some family issues and had to take a semester off. Unfortunately for us this meant that by the time the visa would expire she would still not be finished with school, we made a decision for her to come here and we could be together for a month and then she would return back home to finish school then we could reapply. My question is regarding what problems can we face due to the fact that she was able to come here already on a k-1 but had to return. I have read various posts stateing a waiver will have to be included in my next petition which I don't see any problem in taking the time and explaining the situation. My concern is if we can file right away or will I have to wait a certain amount of time before refiling. Im guessing its going to take about another 6 months or so for her to get another k-1 visa and by that time she will have graduated with no problems. I guess I'm trying to figure out my next step or if I have to send any paperwork to cancel the k-1 visa or is that just done and over with since she was approved and she came to the country, but just had to return. Any help would be greatly appreciated, especially from someone that has gone through a similar process. Thank again everyone for taking the time to read my post.

[payxibka 10,045]

you can file anytime when ready..

IMBRA "waiver" is for multiple petitions (two or more) for multiple benneficiaries (two or more). Since you will have a second petition with the same benneficiary the provision of IMBRA are not suppose to apply.

Originally when IMBRA came out there was some questions as to whether the USCIS was adjudicating your situation properly. I can only assume that they have it corrected... but nevertheless, you should have no issues with the USCIS. In your second petition, explain the original situation and then close the explanation with "While I do not think my situation is subject to the multiple petition filing limitation of IMBRA, if however they are, I hereby request a waiver". or something to this effect.

[Stephen + Elisha 92]

The K-1 is a single-entry visa. It was cancelled when she entered in July. There's no additional paperwork to be filed.

When you reapply, you'll have to answer "Yes" to question 11 on the I-129F, "Have you ever filed for this or any other alien fiancé(e) or husband/wife before?" Since you've had a petition for alien fiancee approved within the last 2 years, you'll have to request a waiver as well. From page 2 of the I-129F instructions:

If you have 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 this petition, you must apply for a waiver. To request a waiver you must submit a written request with this petition accompanied by documentation of your claim to the waiver.

Edited September 8, 2009 by Stephen + Elisha

[Stephen + Elisha 92]

you can file anytime when ready..

IMBRA "waiver" is for multiple petitions (two or more) for multiple benneficiaries (two or more). Since you will have a second petition with the same benneficiary the provision of IMBRA are not suppose to apply.

Originally when IMBRA came out there was some questions as to whether the USCIS was adjudicating your situation properly. I can only assume that they have it corrected... but nevertheless, you should have no issues with the USCIS. In your second petition, explain the original situation and then close the explanation with "While I do not think my situation is subject to the multiple petition filing limitation of IMBRA, if however they are, I hereby request a waiver". or something to this effect.

Going strictly by what the I-129F instructions say, he will have to request a waiver—see the quote in my previous post.

No big deal. He just writes a letter explaining the circumstances and requesting a waiver of the filing limitations and includes it with the new I-129F submission.

[Jose V.. 0]

Thank you very much for taking the time to answer my question. I think I will include a waiver just to be on the safe side even if it ends up extending the k-1 application a bit more. I guess its better to just be upfront about everything and then allow it to take its course. I just hope everything works out well and I can haver her here after her graduation, at least this time there will be several months of additional time for her to finish with school. Thanks again for the help and I would appreciate if anyone out there has some first hand experience with refiling for the same beneficiary.

[payxibka 10,045]

you can file anytime when ready..

IMBRA "waiver" is for multiple petitions (two or more) for multiple benneficiaries (two or more). Since you will have a second petition with the same benneficiary the provision of IMBRA are not suppose to apply.

Originally when IMBRA came out there was some questions as to whether the USCIS was adjudicating your situation properly. I can only assume that they have it corrected... but nevertheless, you should have no issues with the USCIS. In your second petition, explain the original situation and then close the explanation with "While I do not think my situation is subject to the multiple petition filing limitation of IMBRA, if however they are, I hereby request a waiver". or something to this effect.

Going strictly by what the I-129F instructions say, he will have to request a waiver—see the quote in my previous post.

No big deal. He just writes a letter explaining the circumstances and requesting a waiver of the filing limitations and includes it with the new I-129F submission.

True, but I think that is what I said... however, this situation is exactly why it is important to go back to the actual wording in the law as it makes his "waiver" request a slam dunk IMO when you actually provide why it is not needed in the first place.

(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens;

Cited from:

VIOLENCE AGAINST WOMEN AND DEPARTMENT OF JUSTICE REAUTHORIZATION ACT OF 2005

PUBLIC LAW 109–162—JAN. 5, 2006

Edited September 8, 2009 by payxibka

[Stephen + Elisha 92]

you can file anytime when ready..

IMBRA "waiver" is for multiple petitions (two or more) for multiple benneficiaries (two or more). Since you will have a second petition with the same benneficiary the provision of IMBRA are not suppose to apply.

Originally when IMBRA came out there was some questions as to whether the USCIS was adjudicating your situation properly. I can only assume that they have it corrected... but nevertheless, you should have no issues with the USCIS. In your second petition, explain the original situation and then close the explanation with "While I do not think my situation is subject to the multiple petition filing limitation of IMBRA, if however they are, I hereby request a waiver". or something to this effect.

Going strictly by what the I-129F instructions say, he will have to request a waiver—see the quote in my previous post.

No big deal. He just writes a letter explaining the circumstances and requesting a waiver of the filing limitations and includes it with the new I-129F submission.

True, but I think that is what I said... however, this situation is exactly why it is important to go back to the actual wording in the law as it makes his "waiver" request a slam dunk IMO when you actually provide why it is not needed in the first place.

(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens;

Cited from:

VIOLENCE AGAINST WOMEN AND DEPARTMENT OF JUSTICE REAUTHORIZATION ACT OF 2005

PUBLIC LAW 109–162—JAN. 5, 2006

''(2)(A) Subject to subparagraphs (B) and ©, a consular officer may not approve a petition under paragraph (1) unless the officer has verified that—

''(i) the petitioner has not, previous to the pending petition, petitioned under paragraph (1) with respect to two or more applying aliens; and

''(ii) if the petitioner has had such a petition previously approved, 2 years have elapsed since the filing of such previously approved petition.

It does seem like USCIS has misinterpreted the law. (ii) is joined to (i) by and, which would seem to imply that the 2 year rule only applies if the petitioner has petitioned for 2 or more alien fiances in the past.

[payxibka 10,045]

It does seem like USCIS has misinterpreted the law. (ii) is joined to (i) by and, which would seem to imply that the 2 year rule only applies if the petitioner has petitioned for 2 or more alien fiances in the past.

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further confirmed by the July 2006 memorandum (unless it has been corrected) where the USCIS communication to the service centers is dead wrong on there guidance on the issue....

http://www.uscis.gov/files/pressrelease/IMBRA072106.pdf

Edited September 8, 2009 by payxibka

[baron555 934]

It does seem like USCIS has misinterpreted the law. (ii) is joined to (i) by and, which would seem to imply that the 2 year rule only applies if the petitioner has petitioned for 2 or more alien fiances in the past.

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further confirmed by the July 2006 memorandum (unless it has been corrected) where the USCIS communication to the service centers is dead wrong on there guidance on the issue....

http://www.uscis.gov/files/pressrelease/IMBRA072106.pdf

Just write the letter and be done with it. Your case is clear cut and you have a good explanation of what was done. You did it by the book so there is no issue.

[Jose V.. 0]

Thanks again for the answers. I think I will have to get started on it soon, either way at least this time I know to take my time since I'm definately not filing for a third time. Am I right in assuming that once the waiver gets approved when I send in the application the rest of the process is exactly the same? Meaning timeframe and such? Hopefully this just doesn't cause too much trouble or take more than usual. I really do appreciate everyones help and taking the time to responde to my inquiry. Does anyone know if I will be told right away after sending in my petition with waiver if I am approved for the waiver and just have to wait for the 129 to be approved?

[payxibka 10,045]

Thanks again for the answers. I think I will have to get started on it soon, either way at least this time I know to take my time since I'm definately not filing for a third time. Am I right in assuming that once the waiver gets approved when I send in the application the rest of the process is exactly the same? Meaning timeframe and such? Hopefully this just doesn't cause too much trouble or take more than usual. I really do appreciate everyones help and taking the time to responde to my inquiry. Does anyone know if I will be told right away after sending in my petition with waiver if I am approved for the waiver and just have to wait for the 129 to be approved?

all at one time

[Stephen + Elisha 92]

Thanks again for the answers. I think I will have to get started on it soon, either way at least this time I know to take my time since I'm definately not filing for a third time. Am I right in assuming that once the waiver gets approved when I send in the application the rest of the process is exactly the same? Meaning timeframe and such? Hopefully this just doesn't cause too much trouble or take more than usual. I really do appreciate everyones help and taking the time to responde to my inquiry. Does anyone know if I will be told right away after sending in my petition with waiver if I am approved for the waiver and just have to wait for the 129 to be approved?

It's not a 2-step process. USCIS has delegated the authority to approve these waivers to adjudicators, and your case is very clear-cut. The adjudicator will review and grant the "waiver" at the time the I-129F petition is being adjudicated, and there should be no significant difference in the timeframe.

[brlukath 1]

You should probably include with your statement evidence of the facts establishing your story. For example, records showing that (1) your SO is currently enrolled in school, (2) took a semester off, etc. You will also need to include in this application a clear copy of her entire passport showing that she exited the US on time.

[Stephen + Elisha 92]

You should probably include with your statement evidence of the facts establishing your story. For example, records showing that (1) your SO is currently enrolled in school, (2) took a semester off, etc. You will also need to include in this application a clear copy of her entire passport showing that she exited the US on time.

Good point, except the US does not have departure passport control so she won't have a passport stamp to record her departure. Hopefully she turned in her I-94.

Edited September 8, 2009 by Stephen + Elisha

[Jose V.. 0]

Ok, so now I'm getting a bit worried about proving she left the country. I don't know if she turned in the I-94, would she have been asked to do so at the airport or is this something she had to do on her own? If she hasn't turned it in and still has it in her possession can she just turn it in now or how would I go about proving that she is actually out of the country, the 90 day period is still due in October, so I still have time to turn in the I-94 I guess. Any help would be greatly appreciated and again thanks everyone for the help.