K-1 or bust

[JimVaPhuong 4,863]

Yes, There are lessons to be learn for us and to other here. Another lesson being; although the VJ is very helpful, it has its limits. I.E.. I read in VJ that we would likely not get an K1 appeal and to start over with a K-3. Yet, we were granted one. The irony here is that we are starting over. Agreed. Haste makes waste.

Thanks again all.

What you read was correct. Appeals are rarely granted at any consulate. There is no formal appeal process at the consulate for a K1 visa denial. You got lucky. My guess is that the visa section chief saw your appeal and decided to hold your petition for further investigation, probably because the visa was denied for a less discretionary reason - public charge - that could be easily rectified with a sufficient affidavit of support. A proactive immigration lawyer would usually try the same thing. If they can get the consulate to sit on the petition a little longer then it gives them a chance to submit more evidence and try to get the decision reversed. However, even a proactive immigration attorney would tell you that, while it's worth the effort to try, these efforts are usually not successful. The consulate will usually send the petition back to USCIS in spite of the attempted appeal. They aren't required to consider any form of appeal.

In any event, you jumped the gun by getting married. I don't know if you could rectify the situation with an annulment. Unless you're willing to heavily "grease the machine" (perhaps $5000+), it's highly unlikely you could finish the annulment before the visa expires. These things have a tendency to sit on a clerk's desk for a year or more gathering dust unless you have a lawyer who is buddies with the clerk, and comes across with a little payola. Anyway, I suspect the K1 became effectively null and void when you married, and I don't believe an annulment would fix that. Feel free to consult with an immigration lawyer, though.

Filing for a CR1 has several advantages over a K1. It's cheaper. The beneficiary will also automatically receive a green card shortly after arriving in the US - there's no adjustment of status process. The CR1 is an immigrant visa.

The only way you could expedite the CR1 processing is to file directly with the USCIS office in Manila - a process called "Direct Consular Filing", or DCF. The caveat - the US citizen petitioner must reside in the Philippines. If you were a resident of the Philippines and filed DCF then it's conceivable you could finish the process in a few months. The most difficult aspect of this method is the affidavit of support. While the I-864 does allow for a joint sponsor - something you didn't have the benefit of with the K1 visa - it also requires each sponsor (including you) to be domiciled in the United States. This is sort of a catch 22. On the one hand, you need to be a resident of the Philippines to file DCF. On the other hand, you need to be domiciled in the United States to submit an I-864. You resolve the second problem by maintaining your residence in the US - keep paying your rent or mortgage. You can also resolve it by submitting proof that you've taken concrete steps to reestablish your domicile, and proof that you will be returning to the US to reestablish your domicile before or at the same time as your wife.

Here is the info for the USCIS office in Manila:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=73b714836a14d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=1ac900c262197210VgnVCM100000082ca60aRCRD

Those are your options. Again, feel free to consult with an attorney.

[pat/jan 0]

We were initially denied the K-1 Visa due to the income requirements and were recommended to apply for a K-3 spouse Visa. Most people we talked to responded with the same answer.

All the same, I filed an appeal with the embassy but got no response. Anyway, We married about a month later in a civil service with her family along side. It was very nice. However; I felt a bit perturbed that the US Embassy gave me no reply to our K-1 appeal. I miraculously found the correct extension to the Visa section.

I informed them that I hadn't received any reply and was unsuccessful at reaching them before. The Embassy staff person asked me for the case number, then informed me that the appeal was granted and I was given up to one year from the filing date to provide additional/updated evidence for the financial part of the K-1.

Of course, I was in a bit of shock. Well,.. it was great to be married but we had expected to go another round with a different Visa petition.

I did what anyone would due; I waited for my accountant to finish my latest tax return and Fed-X it to the Embassy. She was approved and the Visa "is in the mail" as I write this. Happy story ? We hope so. but questions came up with my spouse as I once we learned she is required to attend a CFO Guidance and Counseling seminar for fiancee':

Will she have to provide a Cenomar? ( She didn't report to any government agency (NSO), that she was NOW married ).

If so, can we use the one we have that's 8 months old when she was single ?

FYI: The US Embassy in the Philippines don't accept sponsors for the K-1 petition. If I had known this, I we would have properly married and filed a K-3.

[Yagisama 93]

This doesn't make sense to me. You were waiting for the appeal and you got married in the meantime and now you want to go back to using the K1 visa. Looks like you're looking at "bust" from your two options.

[pushbrk 12,134]

01

Thank you for the replies all:

We didn't find out about the K-1 approval until after we were married. If we apply for a CR1 we would be looking at 9 month $. Can't it be worked out with another way, or with a lawyer ? Sound like it won't be overlooked... hmm.

No, it will not be overlooked. If your wife were to enter the USA using a K1 fiancee visa, A lawyer would be needed to fight and probably lose the deportation order and lifetime ban once the fraud was discovered.

Nothing will change the fact that you are now married. Take the visa back and have it cancelled. Then start over with a CR1 spouse visa process. No other options exist for her to legally enter the USA.

[hoody 8]

FYI: The US Embassy in the Philippines don't accept sponsors for the K-1 petition. If I had known this, I we would have properly married and filed a K-3.

Omg!My fiance is about to file for k1-visa petition. If NOA2 might be approved, he might have a co-sponsor. Would it be slimmer chance for me to get a visa?

[pushbrk 12,134]

Omg!My fiance is about to file for k1-visa petition. If NOA2 might be approved, he might have a co-sponsor. Would it be slimmer chance for me to get a visa?

Much slimmer, yes. The most frequent exceptions are recent or soon to be college graduates with a parent or other close relative as cosponsor. Unfortunately, there's no way to be sure. For a spouse visa, (CR1 is the currently available spouse visa. K3 is dead.) Manila MUST accept a joint sponsor.

[pat/jan 0]

How does this not constitute visa fraud? Isn't that violation of TOS to suggest this? They are already married - he could not legally get a marriage license to marry again.

that is not a visa fraud as what i've understand on what i've read the OP applied the fiancee visa before they got married...well i had a lot of USC friend that applied a fiancee visa to there fiancee and then they got married there in the philippines before they enter in the USA because the parents of them girls will not allow thier daughter to leave the country and not let the USC bring thier daughter in foriegn country without being married first infront of the parents,when they enter in USA they got married within 90 days and adjust the status...me myself i married my wife twice in USA and Philippines so her family friends and relatives can witness and see her walking in the aisle...

This is only and opinion...If you want a legal advise hire an immigration lawyer...

[Kathryn41 3,205]

Two posts recommending visa fraud and one post quoting same have been removed. The acceptable part of the post quoting the fraud recommendation is returned to this thread below.

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How does this not constitute visa fraud? Isn't that violation of TOS to suggest this? They are already married - he could not legally get a marriage license to marry again.

Some of the longer members here will remember a case from about 3 years ago where a US citizen married his Japanese fiance in Japan after she had got her K-1 visa because her family wanted to be at the wedding. She succeeded in entering the US on the K-1 visa but when she applied for her AOS the first marriage was discovered. Not only was she deported she was banned for life from ever returning to the US. Last I heard her US husband was still trying to find some way to bring her back to the US legally and was racking up enormous legal bills with little likelihood of success.

It was your choice to marry before getting a final decision on the appeal. Your wife cannot use a fiancee visa even though one was granted - she no longer qualifies. You need to start all over again with a spousal visa - the CR-1. Good luck. I know it is no consolation but you are not the first to have this happen, nor will you be the last.

[Kathryn41 3,205]

that is not a visa fraud as what i've understand on what i've read the OP applied the fiancee visa before they got married...well i had a lot of USC friend that applied a fiancee visa to there fiancee and then they got married there in the philippines before they enter in the USA because the parents of them girls will not allow thier daughter to leave the country and not let the USC bring thier daughter in foriegn country without being married first infront of the parents,when they enter in USA they got married within 90 days and adjust the status...me myself i married my wife twice in USA and Philippines so her family friends and relatives can witness and see her walking in the aisle...

This is only and opinion...If you want a legal advise hire an immigration lawyer...

This absolutely IS visa fraud. A fiancee visa is for a fiancee. A fiancee is NOT MARRIED anywhere whether it is in the Philippines before she arrives or in the US when she arrives. If she gets married before she enters the US as a fiancee, then she is fraudulently using a visa issued to a fiancee with the full knowledge that she is not a fiancee but a wife. There is a totally different visa required for a wife - a spousal visa called the CR-1/IR-1.

If there was a non-official ceremony that did not make the couple married - and some religious services in some countries fall into that category - then this isn't fraud as the marriage is not a legally recognized marriage. Any foreign ceremony that results in a legal marriage makes a fiancee visa unusable for the person to whom it was issued.

Of even greater concern is recommending anyone to hide information that affects their eligibility for an immigration benefit or to misrepresent the truth of a situation - which is what you recommended doing when you said to enter the US on a fiancee visa even though she is no longer a fiancee. This is called misrepresentation and it is taken so seriously by USCIS that a charge of misrepresentation is often enough to bar the individual from entering the US for life.

To use a fiancee visa the beneficiary must be a fiancee when the application is made, still be a fiancee when the K-1 is issued and still be a fiancee when she crosses the border into the US. Having a second marriage does not make the fraudulent use of a fiancee visa for a wife to enter the US legal - it just compounds the illegality.

If you have done this, your wife is not safe from immigration. Whenever this is discovered your wife - even if it is 25 years from now and she is a US citizen - she will be deportable and probably banned for life unless the 'marriage' you had before you left was not legally recognized by the Philippines government.

[Shawn & Emi 16]

FYI:

The K-1 interview was before we got married. We didn't know it would be an issue to marry in two different countries.

Of course it is - just because a marriage takes place outside of the US doesn't mean it's not a legitimate marriage in the eyes of USCIS. Otherwise, the spouse visa wouldn't exist! The K-1 is designed for bringing your fiancé(e) to the US for the purpose of getting married in the US.

[Shawn & Emi 16]

This absolutely IS visa fraud. A fiancee visa is for a fiancee. A fiancee is NOT MARRIED anywhere whether it is in the Philippines before she arrives or in the US when she arrives. If she gets married before she enters the US as a fiancee, then she is fraudulently using a visa issued to a fiancee with the full knowledge that she is not a fiancee but a wife. There is a totally different visa required for a wife - a spousal visa called the CR-1/IR-1.

If there was a non-official ceremony that did not make the couple married - and some religious services in some countries fall into that category - then this isn't fraud as the marriage is not a legally recognized marriage. Any foreign ceremony that results in a legal marriage makes a fiancee visa unusable for the person to whom it was issued.

Of even greater concern is recommending anyone to hide information that affects their eligibility for an immigration benefit or to misrepresent the truth of a situation - which is what you recommended doing when you said to enter the US on a fiancee visa even though she is no longer a fiancee. This is called misrepresentation and it is taken so seriously by USCIS that a charge of misrepresentation is often enough to bar the individual from entering the US for life.

To use a fiancee visa the beneficiary must be a fiancee when the application is made, still be a fiancee when the K-1 is issued and still be a fiancee when she crosses the border into the US. Having a second marriage does not make the fraudulent use of a fiancee visa for a wife to enter the US legal - it just compounds the illegality.

If you have done this, your wife is not safe from immigration. Whenever this is discovered your wife - even if it is 25 years from now and she is a US citizen - she will be deportable and probably banned for life unless the 'marriage' you had before you left was not legally recognized by the Philippines government.

Agreed on all points. Also, presumably their marriage in the Philippines was a legal marriage as they were going to apply for a spousal visa based on it. It can't have been for 'ceremony' only because that wouldn't be sufficient.

[Kathryn41 3,205]

Post discussing a separate concern has been split from this topic and made into its own topic here: http://www.visajourney.com/forums/topic/297779-overstay-and-10-ban-what-can-we-do/