need advice about path to take

[Jason_384 0]

Hello all,

My fiancee wishes to marry in her hometown in Japan. But, we are not sure if she can visit on a regular tourist visa if we were to get married in Japan, until the I-130F is approved ~9 months after application. Or the other path is I-129F, and get married here. Same question, can she visit on a tourist visa while the application is in progress? I've googled and read quite a bit, enough that now I don't precisely know what forms are req'd or which path is best. I'm also presently hunting for an immigration lawyer locally (Bay Area), but most are employment-based. Any general answers or tips before I speak with a lawyer would be greatly appreciated. She's fine with waiting in Japan during the lengthy application process, but I'm pretty sure that's not necessary ...

Thanks!

[nphar 1]

Applying for a tourist visa while awaiting a fiance visa is not a good idea. USCIS will may look at the tourist visa as fraudulent, since the intent all along was to be married. At the least, it will delay things and create additional questions.

It is better to go the I-129F route. Spousal visas typically take longer to approve since there is more for the USCIS to validate (e.g. legitimate wedding, documents, etc). However, if she wants to marry there, then you can go that route and apply for a spousal visa. It just may take a little longer for her to get approved to come to the US.

[Shawn & Emi 16]

Hello all,

My fiancee wishes to marry in her hometown in Japan. But, we are not sure if she can visit on a regular tourist visa if we were to get married in Japan, until the I-130F is approved ~9 months after application. Or the other path is I-129F, and get married here. Same question, can she visit on a tourist visa while the application is in progress? I've googled and read quite a bit, enough that now I don't precisely know what forms are req'd or which path is best. I'm also presently hunting for an immigration lawyer locally (Bay Area), but most are employment-based. Any general answers or tips before I speak with a lawyer would be greatly appreciated. She's fine with waiting in Japan during the lengthy application process, but I'm pretty sure that's not necessary ...

Thanks!

Your fiancée can visit the US on the visa waiver program (VWP) during either process, she won't need a visa just to visit as Japan is one of the VWP countries. She should bring some proof of ties to her home country when she visits though, in case she gets any hassle when going through immigration at the US airport.

Both visas have their pros and cons...

The fiancée visa (K-1) is usually a bit quicker than the spouse visa (CR-1) but with the K-1 you then have to go through adjustment of status (AOS) after your marriage in the US, which costs over $1000. She won't be a permanent resident until her AOS is approved. If she comes on a K-1 your fiancée won't be able to work legally until after you've got married and then filed for AOS - part of the AOS process is filing for an employment authorization document (EAD) and it can take 60-90 days for that to be received (before that she won't be able to work).

If you marry first and then file for a spouse visa, you'll probably wait a bit longer for the actual visa but once your wife arrives in the US she'll become a permanent resident immediately with full rights to live and work in the US. I think it's cheaper to go down the spouse visa route, because there's no AOS involved. Also, if she's wanting to work she'll be able to do so almost immediately upon arrival in the US.

Just some things to consider!

Edited April 19, 2011 by Shawn & Emi

[Jason_384 0]

In order to get a K-3 non-immigrant visa for her to visit during the wait -- which much be filed from Japan, I have to file both I-130 and I-129F. However, as of Feb 1st 2010, once the USCIS accepts the I-130 first or both petition, then K-3 is no longer allowed.

So exactly how does one make use of a K-3 visa then? Is the USCIS approval a very long wait then? Otherwise, it sounds like a very tiny window in which a K-3 can be used! "the availability of, as well as the need for, a nonimmigrant K-3 visa ends." Why does the need end -- what is the new option available at that point?

Marriage in Japan

CR-1, file I-130 petition with USCIS, G-325a, and G-1145.

USCIS approves petition, sends to NVC.

I'm fuzzy about what happens then. Do we need:

I-134/864, affidavit of support?

I-751, the one that's filed 90 days before 2nd anniversary of being granted permanent residence?

At what point in the process does she come here permanently?

Edited April 21, 2011 by Jason_384

[Shawn & Emi 16]

In order to get a K-3 non-immigrant visa for her to visit during the wait -- which much be filed from Japan, I have to file both I-130 and I-129F. However, as of Feb 1st 2010, once the USCIS accepts the I-130 first or both petition, then K-3 is no longer allowed.

So exactly how does one make use of a K-3 visa then? Is the USCIS approval a very long wait then? Otherwise, it sounds like a very tiny window in which a K-3 can be used! "the availability of, as well as the need for, a nonimmigrant K-3 visa ends." Why does the need end -- what is the new option available at that point?

Marriage in Japan

CR-1, file I-130 petition with USCIS, G-325a, and G-1145.

USCIS approves petition, sends to NVC.

I'm fuzzy about what happens then. Do we need:

I-134/864, affidavit of support?

I-751, the one that's filed 90 days before 2nd anniversary of being granted permanent residence?

At what point in the process does she come here permanently?

Forget the K-3 visa - it would be the CR-1 visa she would need if you marry first. I believe it would be the I-864 affidavit of support that you would need to complete, but please double check that as I did the K-1 which is different (the K-1 requires the I-134 at interview and the I-864 for adjustment of status).

When USCIS have approved the petition it's sent to the NVC and then onto the US embassy in Japan, where she will be interviewed and hopefully granted the visa. She'll most likely have to leave her passport there for them to process the visa and then they'll send it back to her (you can check this in the regional forums though, it could be different in Japan). When she arrives in the US using her visa she becomes a permanent resident right away.

I think the current processing times for the CR-1 visa are 8-10 months but that's just a guide. It could be quicker, or it could take longer.

You're right about the I-751 to remove the conditions on the green card - file the form in the 90 days before it expires, she will then receive a 1 year extension letter while they're processing her case and when it's done she'll receive a 10-year green card.

Three years after she becomes a permanent resident she'll be eligible to naturalize if you're still married.

Edited April 21, 2011 by Shawn & Emi

[JimVaPhuong 4,864]

In order to get a K-3 non-immigrant visa for her to visit during the wait -- which much be filed from Japan, I have to file both I-130 and I-129F. However, as of Feb 1st 2010, once the USCIS accepts the I-130 first or both petition, then K-3 is no longer allowed.

So exactly how does one make use of a K-3 visa then? Is the USCIS approval a very long wait then? Otherwise, it sounds like a very tiny window in which a K-3 can be used! "the availability of, as well as the need for, a nonimmigrant K-3 visa ends." Why does the need end -- what is the new option available at that point?

You misunderstand the purpose of the K3. A K3 was the approximate equivalent of a K1, but for people who are already married. The K3 visa holder could come to the US and wait with their spouse while their green card application was being processed. Spousals visas like CR1's used to take a LOT longer to process than K1's, which was unfair to people who were already married, so the K3 was created to address that. Since CR1's (and IR1's) now take only a little longer than a K1, there's no real need for the K3 anymore. You can still apply for a K3 by sending an I-129F after the I-130, but since both will be approved and sent to NVC at the same time the I-129F will be closed, and only the I-130 sent to the consulate.

Your fiancee doesn't need a visa to visit the US, even if there is a K1 visa petition pending. She can use the VWP to visit for up to 90 days, as long as she can first get approved through ESTA, and then convince a CBP officer at a port of entry that she won't overstay or attempt to immigrate while she's here. It's not 'forbidden' to visit while a K1 petition is pending approval. It's just a little more difficult to persuade CBP that she won't use the non-immigrant entry to sidestep the immigration process.

Marriage in Japan

CR-1, file I-130 petition with USCIS, G-325a, and G-1145.

USCIS approves petition, sends to NVC.

I'm fuzzy about what happens then. Do we need:

I-134/864, affidavit of support?

I-751, the one that's filed 90 days before 2nd anniversary of being granted permanent residence?

At what point in the process does she come here permanently?

For a CR1, after the I-130 petition is approved, then the fees are paid and the I-864 is sent to the NVC. They'll schedule an interview appointment with your wife at the consulate in her country. If she passed the interview then they'll put a visa in her passport. After she enters the US she'll get her green card within a few weeks. The I-751 is filed about two years later to convert the 2 year conditional green card into a 10 year unconditional green card.

Read the VJ guides (like at the top of every page) for details about the process for each type of visa.