F1 or K4 for daughter while filing i-130 for wife

[PunchBuggyBlue 2]

Hi all,

I am a USC and recently married a wonderful woman from Brazil. My wife is now back in Brazil and we are sending off our I-130 as soon as the paperwork is done to eventually obtain a K3 visa for her. We are planning for my wife to again visit the United States on her B2. Both my wife and step daughter have B2 visas however we would like for our daughter to start school in September. The school said they have students getting F1 visas very quickly and we thought it might be a good idea to file for an F1 rathe than a K4 so she could start school in September. Her mother would enter on her B2 to visit with family. I understand that my wife may have to show ties to Brazil to be allowed to enter the USA.

So I'm looking for general feedback, thoughts or advice in this matter.

A second thought regarding intent to immigrate... Wouldn't having a pending I-130 / K3 application be sufficient evidence that a person wasn't planning to immigrate from a country that is doing well economically? I would think a logical argument would be, "why would I do something illegal and jeopardize my ability to gain permanent residence by overstaying on a B2... look, here is the paperwork showing a pending I-130 / K3... I'll be legally permanent in a few months." I don't know, just seems logical to me.

Thanks for your help,

John

[Ryan H 3,813]

The I-130 is for CR-1. You would also have to file another I-130 for a CR-2 visa that would be for your step-daughter. K3 petitions are typically closed administratiively by the NVC because the I-129F for the K3 is typically received by the NVC at the same time as the I-130 for CR-1.

As for your wife entering on a B2 while the I-130 is pending, it's up to CBP to allow her entry so she will have to show ties to Brazil. Having filed for a I-130 shows that she wants to come to immigrate the right way.

[PunchBuggyBlue 2]

Okay, I have to study http://www.visajourney.com/content/compare a bit more... confused a bit about which will allow my wife to stay in the USA sooner. Either way, I do believe she can visit with her B visa. But what about getting our daughter here in a student visa?

[Ryan H 3,813]

Okay, I have to study http://www.visajourney.com/content/compare a bit more... confused a bit about which will allow my wife to stay in the USA sooner.

The K3 is still officially on the books even though it is nonexistent in practice. This is the typical sequence of events with a K3 filing:

You file the I-130 and receive the NOA1

You file the I-129F, USICS ties the two petitions together by pulling your I-130 from its current place in the queue and places it with the I-129F you just submitted

USCIS approves both petitions at the same time and sends them to the NVC together. When the NVC receives the two petitions, they will administratively close the I-129F for K3 leaving only the I-130 for CR-1 active.

The K3 was created because the time it took for an I-130 to be approved used to be lengthy, that is no longer the case. IMO, the best course for you to take is to file the I-130 and let it run its course on its own. Don't waste your time with a K3.

But what about getting our daughter here in a student visa?

Information from the State Department on Student Visas.

[PunchBuggyBlue 2]

Ryan, thanks for the info. Still not sure which way I'm going to go, but the I-130 will go out ASAP!

We are lucky to already have the B2 visa since a long visit with the proper proof of ties to Brazil seems likely, but it's school for my step daughter that has me worried. She can not attend classes on a B2. I wonder if we should just apply for the F1 anyway... can't hurt. They will see that we want to legally immigrate, that they both intend on returning to Brazil for the CR1 interview etc. I think we are being hones, my wife wants to visit, and we want her daughter to start school, two different visas are needed.

Thanks again for the help,

John

[JimVaPhuong 4,863]

How old is your step-daughter?

Edit: Also, how old was your step-daughter when you married her mother?

Edited May 18, 2011 by JimVaPhuong

[PunchBuggyBlue 2]

How old is your step-daughter?

Edit: Also, how old was your step-daughter when you married her mother?

Hi,

Step daughter is 15, and we were just married last week so age is the same. We will be honest, the intent is to immigrate, but not without first returning to Brazil. So I'm thinking we might get the visa?

[JimVaPhuong 4,863]

Hi,

Step daughter is 15, and we were just married last week so age is the same. We will be honest, the intent is to immigrate, but not without first returning to Brazil. So I'm thinking we might get the visa?

First, you will eventually need to file an I-130 for your step-daughter. She can't immigrate without one. She won't get derivative status from her mother's I-130. The I-130 must be filed before she's 21 years old. Actually, it must be filed some time before she's 21 years old. The rules for calculating her effective age are described in the pinned CSPA thread. If she doesn't immigrate before she's effectively 21 then she'll no longer be an immediate relative, and she'll have to wait in line for several years to get a visa.

I asked about her age because if she'd been over 18 when you married her mother then you wouldn't be eligible to file a petition for her. You'd have to wait until her mother got her green card, and then her mother would have to file on her behalf. That takes years. However, since you married before she was 18 then she's your immediate relative for immigration purposes - you can file for a CR2 visa for her. If you'd like the pursue the F1 visa first, and postpone filing the I-130 for your step-daughter, that's your choice.

Getting the visas isn't the real problem here. Your wife and step-daughter entering the US without immigrant visas very well may be a problem. Your wife and step-daughter are now immediate relatives of a US citizen, which makes them eligible to adjust status and get a green card if they enter the US. However, adjustment of status for someone who enters with a tourist visa is meant to be an exception rather than an alternative to the normal immigrant visa process. It's illegal for an alien to enter the US with a non-immigrant visa if they intend to try to immigrate while they're here. DHS is charged with determining if an alien applying for entry might have preconceived intent to immigrate, and to deny them entry if they determine that they do.

Some people have said that having an I-130 already filed helped their spouse enter with a tourist visa since it apparently showed the immigration officer that they were trying to immigrate "the right way". Others have said that it had the opposite effect - the immigration officer was convinced of their intent to immigrate because of the I-130.

What I'm saying is that it's possible your wife and step-daughter could be turned around at the airport, and put on the next plane back home. It all depends on what the immigration officer thinks their intention is.

[PunchBuggyBlue 2]

Thank you again. Yes, I understand their exists the risk they may be turned around and have read a lot on this forum about how to minimize that risk... apartment lease, work contract etc... I do plan on immediately filing I-130's for both my wife and step daughter. I guess whether or not they issue my step daughter an FI while an I-130 is pending is up to the people at the consulate in Brazil. That may depend on how the term "Have a residence abroad, with no immediate intention of abandoning that residence" is interpreted. Since they will both return to Brazil without overstaying their visas, will there be no "immediate intention." I don't think applying for the student visa will hurt anything (right?) so maybe we won't know anything until we try.

[JimVaPhuong 4,863]

Thank you again. Yes, I understand their exists the risk they may be turned around and have read a lot on this forum about how to minimize that risk... apartment lease, work contract etc... I do plan on immediately filing I-130's for both my wife and step daughter. I guess whether or not they issue my step daughter an FI while an I-130 is pending is up to the people at the consulate in Brazil. That may depend on how the term "Have a residence abroad, with no immediate intention of abandoning that residence" is interpreted. Since they will both return to Brazil without overstaying their visas, will there be no "immediate intention." I don't think applying for the student visa will hurt anything (right?) so maybe we won't know anything until we try.

It won't hurt anything. The worst that could happen is the F1 visa would be denied. There's nothing in the law that prohibits someone with a pending immigrant visa petition from applying for a non-immigrant visa. However, there is a general requirement that someone applying for a non-immigrant visa does not have an intention to immigrate, unless the non-immigrant visa allows for dual-intent. There is anecdotal evidence from people who've tried it that a non-immigrant visa application is more likely to be denied because the consular officer will claim that the pending immigrant visa petition establishes their intent.

I suppose you might be able to improve her chances by letting her try to get the F1 visa first, before sending the I-130 petition. They won't revoke the F1 visa if she's already entered the US and is complying with the terms of the visa.

[sib 7]

Have you planned to get married when she came to visit this time or did you get married during this visit because you decided that it is best to be married?

If you did not plan and it is possible for your wife and step-daughter to stay in USA for the next couple months you could file I-130 and I-485 together (including travel and work documents) and start the Adjustment of Status process.

You will have to explain (if there is an interview) why you just decided to get married but it does happen quite often that during a visit on a B2 the couple decides to get married.

What kind of school does your step-daughter want to attend? Why does she need an F1 visa for that? I know here in Florida officially you are not allowed to attend public school on a B2 visa but the schools are not allowed to check the immigration status of students (hence there are a lot of illegal immegrant kids at school)! I never was asked about the immigration status of my step-daughter when I enrolled her in public school. Maybe you can ask at the school what you need to enroll her, now that she is your child.

How long does the process take in Brazil for a CR-1/CR-2 visa?

I wish you a speedy journey.

[LIFE'SJOURNEY 970]

This can up in discussion this morning with the lawyer on http://immigrate2us.net/forum/showthread.php?97279-Laurel-Katherine-Chat-Log-for-5-18-11

INTRESTING

Can a person be charged with misrepresentation if they come to the US on a visitor's visa as a minor and attend high school? They never overstayed or were denied entry and it was never discovered during the time they had their visa that they attended school. They are now engaged to a USC military member and going the fiancé route through Mexico. How likely is she to be charged with misrep since they have to admit it since it asks about it on one or some of the forms?

Laurel: If you attended school within 60 days of entering on a visitor's visa, then yes that's a violation of your visa too soon after entering and will lead to a presumption that you intended to violate your status at the time you entered. i.e. misrepresentation.

[PunchBuggyBlue 2]

This is why I like this webpage, people helping people! There is just way too much information to process alone. So thanks agin to all who are posting!

Interesting that such a question came up just this morning. I figured that starting school on a B2 is not a good thing to do as it is not the intent of the visa. That is why, for this to work, we will want the F1. My wife can be here on a B2 because she won't violate the terms. She is visiting with intent to return to Brazil, she will not work etc... But for her daughter to start school, the F1 is needed, I think. Of course I believe they can both come on their B2's but it's not good to be 15 years old, in a new country with not much to do! I will discuss all of this with my wife, and see if she agrees that she should try to get an F1 for her daughter.

Sib: Yes, my wife traveled here with intent to marry, after checking over and over if that was okay to do. (Thanks again to this site!) I was advised by others that the fastest way to get my wife residence was to have her come here, stay on her B2 for a while, then marry, then apply for change of status. For many reasons this just didn't seem honest or right. The F1 isn't needed for the school, but it is needed to honestly bring her to the USA before the processing of the I-130 and the CR-1/CR-2. I'm not sure how long the visa takes, but it looks like the I-130 is the long part of the wait.

[rgfox 10]

... K3 petitions are typically closed administratiively by the NVC because the I-129F for the K3 is typically received by the NVC at the same time as the I-130 for CR-1.

...

I filed the I-130 and the 129F already. But the USCIS website advises filing an I-130 for my stepson also. It is strange because all of the information about my stepson Mark's identity, passport etc, was in the I-130 that I filed for his mother, my wife. But now I understand that in the end she may have a CR-1 and not a K-3. Two questions to the group:

1. Should I file, now, a separate I-130 for my stepson, and send in another $420?

2. Do I have to DO something to initiate/kickoff/facilitate the CR-1 process or will it kick off automatically at the foreign consulate, like the K3 may? Or does the approval of the I-129 do it? Should I file something else now?

Thanks, Richard

[PunchBuggyBlue 2]

It is my understanding, after researching this site, and calling USCIS that I needed to send an I-130 for my 15 year old step daughter... and another $420. The forms were sent together and the one for my step daughter was much simpler because proving the relationship was just a matter of a marriage certificate and birth certificate. All I had to show was that she is my wife's daughter. The rules may be different for very young children.

I filed the I-130 and the 129F already. But the USCIS website advises filing an I-130 for my stepson also. It is strange because all of the information about my stepson Mark's identity, passport etc, was in the I-130 that I filed for his mother, my wife. But now I understand that in the end she may have a CR-1 and not a K-3. Two questions to the group:

1. Should I file, now, a separate I-130 for my stepson, and send in another $420?

2. Do I have to DO something to initiate/kickoff/facilitate the CR-1 process or will it kick off automatically at the foreign consulate, like the K3 may? Or does the approval of the I-129 do it? Should I file something else now?

Thanks, Richard