K1 and F1 fiasco ... fiance got accepted to a university

[rdbdds 2]

First, I wish I had come across this site while I was still filling out the i-129f. Second, after visiting this site and reading around, I am more nervous than before! haha

Here is my situation. I am the US citizen and she is Argentinian. She is a dentist there and applied to a post-graduate specialty program in the US, not expecting to get accepted this year. Surprise, surprise, she got accepted after we started the K1 visa.

This is our timeline

Nov 4, 2010 - Sent out paperwork

Nov 10, 2010 - Paperwork Received

Nov 11, 2010 - NOA1

Nov 16, 2010 - touched

July 1, 2010 - Classes start

Her schooling is going to cost $90,000 a year and the school wants us to start the F1 visa process because who knows if this will get done before then. We need to file paperwork in order to start the i-20 process, which could take up to a couple of months depending on the embassy.

My biggest concern is a requirement for the F1 visa, "Documents which demonstrate that you intend to return home after your studies". She isn't. She is in the process of a K1 visa to stay in the country and would change classification mid-education and drop the F1 status. Obviously not stating this would be a lie which can cause problems, but can stating this harm us or this process?

It's been 62 days and counting since NOA1 in the CA service center. NOA2 may come in another 60 days, it may come in another 160 days, who knows .. but we need to get the ball rolling. Anyone have any advice for this type of situation?

[Boiler 48,081]

Tricky.

Technically the Consulate would be well within their rights to refuse a F1 as it is a non immigrant visa that does not allow dual intent.

Or the might ignore it.

[Messybrownhair 251]

Could you not maybe send an expedite request for that reason then? Present the acceptance letter? not sure if its a bad/goood idea but its my two cents

[payxibka 10,048]

Could you not maybe send an expedite request for that reason then? Present the acceptance letter? not sure if its a bad/goood idea but its my two cents

Having an acceptance letter from a University is not one of the published expedite criteria for the USCIS

[canadian_wife 1,831]

Can she defer her acceptance? She may receive cheaper tuition as a non-international student.

Plus, planning on entering on a non-immigrant visa such as an F1 with full intentions of immigrating is visa fraud. I'd stay away from this if possible

Check with the school, may programs offer deferred enrollment

Good luck

[Messybrownhair 251]

maybe its worth a shot. i am an approved k1 and going to grad school in the fall. we called USCIS to make sure i could study while on AOS and awaiting my green card and they told us we could be expedited. but then again my fiance is also military so that might have helped...

nevertheless, call and ask maybe? i would..

good luck and hope you sort it out.. if not, hope they let her defer for a semester..

[Eddyy 5]

Speaking of which, I'm currently working for HP and me and my fiancee applied for the K-1 visa. Just in case I ask for a transfer and for some reason HP in the USA wants to hire me and sponsor me, it won't colide with my K-1 visa or will it? Is it better maybe just to wait till I get the K-1 visa, adjust my status and then apply for work?

[Boiler 48,081]

Very Different, that would be a L Visa which allows dual intent.

Much quicker and they pay, do it if you can.

Also no wait for work authorisation.

[pushbrk 13,917]

Can she defer her acceptance? She may receive cheaper tuition as a non-international student.

Plus, planning on entering on a non-immigrant visa such as an F1 with full intentions of immigrating is visa fraud. I'd stay away from this if possible

Check with the school, may programs offer deferred enrollment

Good luck

The above would be my advice as well.

[rdbdds 2]

The above would be my advice as well.

Whether she is an international student or not doesn't affect the tuition.

I had no idea that there was such thing as VISA fraud... damn ...

I'm going to have to call USCIS on Monday and see what happens..

[rdbdds 2]

Plus, planning on entering on a non-immigrant visa such as an F1 with full intentions of immigrating is visa fraud. I'd stay away from this if possible

Check with the school, may programs offer deferred enrollment

Can you provide a source for the fraud? I tried looking around the USCIS site and google, but came up short.

Also, I don't believe they offer deferment for her enrollment as it is a highly competitive post grad program that accepts 6 students a year. If she tried to defer, they would just null the acceptance and give it to someone else.

[rdbdds 2]

Can you provide a source for the fraud? I tried looking around the USCIS site and google, but came up short.

Also, I don't believe they offer deferment for her enrollment as it is a highly competitive post grad program that accepts 6 students a year. If she tried to defer, they would just null the acceptance and give it to someone else.

I tried to edit my comment but got an error.

In terms of trying to expedite this visa, is it better to:

1) Call the 800# on NOA1

2) Write/fax a letter with the acceptance letter directly to the CA center without calling

or

3) Trying to contact a congressman to intervene

I doubt anyone will recommend #3, but I am interested in the responses

[VanessaTony 3,567]

Can you provide a source for the fraud? I tried looking around the USCIS site and google, but came up short.

Also, I don't believe they offer deferment for her enrollment as it is a highly competitive post grad program that accepts 6 students a year. If she tried to defer, they would just null the acceptance and give it to someone else.

It's all over the place but unless you know what you're looking for you probably missed it. Here for example: http://en.wikipedia.org/wiki/Dual_intent

Most other foreign visitors and workers, like those on H2-B worker, H-3 trainee/worker, B-1 business, B-2 tourist, VWP visitor, F-1 student, J-1 exchange visitor, M-1 student, journalism, and entertainer visas should not have immigrant intent, as discussed above. Such visa holders can be denied admission if the consular or port official reasonably believes that they have interest in permanently remaining in the United States (i.e., in pursuing a green card). Certain activities may appear likely to lead to U.S. permanent resident status in the belief of an experienced Government Official.

So although the above doesn't say the word fraud, she would have to lie and say she doesn't have immigrant intent to get the visa. She would have to produce documents saying she plans on coming back (as you said she doesn't plan on coming back) which again she'd basically have to "fake" because it's not the truth. Lying = fraud.

This website actually discusses your student visa: http://www.hooyou.com/f-1/140filing.htm and then mention the word fraud:

he US immigration law does not prohibit F-1 status holders from changing their mind and deciding to pursue permanent residency once they arrive in the US . As a matter of fact, I-485 was systematically set up as a legal conduit for non-immigrants to change their status to permanent residents.

A related issue to the change of intent is preconceived intent or visa fraud. As a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under his/her visa. The courts have held that an alien may not enter as nonimmigrant in bad faith. The USCIS holds the opinion that F-1 students are deportable if they enter the U.S. with a preconceived intent to seek permanent resident status. If an alien files an immigration petition or applies to adjust to LPR status from a nonimmigrant status immediately after making the entry into the US, the USCIS would likely find that the alien entered with a "preconceived intent" to remain and that the F-1 visa was fraudulently obtained. The USCIS and the Board of Immigration Appeals can, as a proper exercise of discretion, deny the alien's adjustment application and deport him. The theory is that the alien would have never been admitted to the U.S. had he not misrepresented his intentions, so he was excludable at entry.

It's also important to note that material misrepresentation (lying about a material fact) is VERY bad and has a lifetime ban. So lying about being engaged to you, lying about planning to marry you etc etc if discovered, could get her a lifetime ban.

Long and short of it is this... the F1 appears to be off the table unless you can get the K1 approved now OR you can show that she plans to leave the US once the K1 reaches the interview stage and gets the K1 and then re-enters using it.. I don't know whether I'd do it, but it's an option. When did you apply for the K1? How long does it typically take in her country?

Good luck!

Edited January 16, 2011 by Vanessa&Tony

[VanessaTony 3,567]

I tried to edit my comment but got an error.

In terms of trying to expedite this visa, is it better to:

1) Call the 800# on NOA1

2) Write/fax a letter with the acceptance letter directly to the CA center without calling

or

3) Trying to contact a congressman to intervene

I doubt anyone will recommend #3, but I am interested in the responses

Can't edit comments after 5 minutes.

I would not do #2 'cause nothing would happen. I would call #1 first to see what they say, and then get #3 involved because you're TRYING to do the right thing while not screwing your fiancee's chances of a promising career in the US. I would include information about the limited number of accepted applicants because it shows that she must be pretty good to be accepted and that that's "something good for the US"... to have smart people here who want to study, she's not your regular burden to society.

Again, Good luck!

[rdbdds 2]

Awesome, thanks for all the helpful info.

The dual intent rules are a little ... confusing. Because the wikipedia article stats Certain types of foreign visitors are allowed dual intent and mentions K visas, but in the following paragraph states that F1 students can't have dual intent.

The office is closed today! Grrrr! I waited all weekend to call to find that it is a federal holiday!

I think the savior here might be that we applied for the k1 visa first (allows dual intent) which may qualify her for a F1 visa.. instead of doing F1 then K1