Fiancee Visa Question

[JeffGSR 0]

Hello,

On March 28th 2011 I submitted the I-129 Fiancee Visa for my fiancee in Lithuania. On July 13th, the petition was approved. However, on July 16th my fiancee visited the US on a tourist visa and we got married. We already planned the wedding unknowing how long it would take for the I-129 to be processed. My now wife plans to go back to Lithuania on August 5th since she can't stay in America on a tourist visa. Do I need to submit a spousal visa for her to be able to come back or is there some way I could use the already approved fiancee visa to let her stay in the US? Thanks.

[belinda63 3,053]

Have to start all over with the CR-1. Suggest you read the guides at the top.

[san diego 407]

Once she goes back you need to withdraw K1 re-submit for CR1. This is the only way.

If you did not submit I129F before her coming to US you could adjust status. However, you clearly shown immigration intent before her coming to US, thus you will not be able to adjust status based on marriage. She has to go back and you withdraw K1 and re-apply for CR1.

[Love Eth 14]

I-129f is a petition for Alien Fiancé(e). Since you are married, you are not fiancé(e) any more which means the petition is not valid. You have to cancel the K-1 visa application and start the CR-1. If the embassy at Lithuania find out she is married, the K-1 visa will be denied.

I am not that much sure but since your fiancée is in the US already and get married with you, can't you do status adjustment here in US? I hope some other senior members can give some suggestion if you can do it or not.

Good luck

Edited July 25, 2011 by Love Eth

[san diego 407]

I-129f is a petition for Alien Fiancé(e). Since you are married, you are not fiancé(e) any more which means the petition is not valid. You have to cancel the K-1 visa application and start the CR-1. If the embassy at Lithuania find out she is married, the K-1 visa will be denied.

I am not that much sure but since your fiancée is in the US already and get married with you, can't you do status adjustment here in US? I hope some other senior members can give some suggestion if you can do it or not.

Good luck

He cannot adjust the status as she entered US already in the process of I129F. This means that she already showed intent and AOS will be denied due to material misrepresentation at the time of entry. If she entered US BEFORE applying for I129F, and got married, and applied for AOS and STATED that she did not have intent, only then it would work.

[Love Eth 14]

He cannot adjust the status as she entered US already in the process of I129F. This means that she already showed intent and AOS will be denied due to material misrepresentation at the time of entry. If she entered US BEFORE applying for I129F, and got married, and applied for AOS and STATED that she did not have intent, only then it would work.

Thanks San Diego for your information. It is a good learning for me too. I hope the OP will get the information too. I don't want to mislead and put the OP in danger.

Thanks again San diego

[Deputy Purple 1,294]

He cannot adjust the status as she entered US already in the process of I129F. This means that she already showed intent and AOS will be denied due to material misrepresentation at the time of entry. If she entered US BEFORE applying for I129F, and got married, and applied for AOS and STATED that she did not have intent, only then it would work.

Actually, USCIS can not deny AOS based solely on their belief that the applicant entered with immigrant intent. USCIS needs to prove that the applicant misrepresented a material fact in order to gain admission into the US. There have been several examples of CBP suspecting someone of immigrant intent based on the interview or items found during baggage search. CBP would take the person into secondary and get them to make a very clear statement that they had no intention of Adjusting Status once in the US, often times they will have the person sign a statement attesting to such. They will also make good notes as to what lead them to believe the person had present immigrant intent (for example on case from VJ the woman had all personal document that would be required for AOS and concealed her marriage to a US Citizen, CBP found the documents, including the marriage certificate in her luggage).

If the OP decides to AOS then it's up to USCIS to prove that the alien entered the US with the intent to AOS and stay, not that they had future immigrant intent.

Unless the alien spouse was pulled into secondary it's highly unlikely they will have any problem with AOS.

[san diego 407]

Actually, USCIS can not deny AOS based solely on their belief that the applicant entered with immigrant intent. USCIS needs to prove that the applicant misrepresented a material fact in order to gain admission into the US. There have been several examples of CBP suspecting someone of immigrant intent based on the interview or items found during baggage search. CBP would take the person into secondary and get them to make a very clear statement that they had no intention of Adjusting Status once in the US, often times they will have the person sign a statement attesting to such. They will also make good notes as to what lead them to believe the person had present immigrant intent (for example on case from VJ the woman had all personal document that would be required for AOS and concealed her marriage to a US Citizen, CBP found the documents, including the marriage certificate in her luggage).

If the OP decides to AOS then it's up to USCIS to prove that the alien entered the US with the intent to AOS and stay, not that they had future immigrant intent.

Unless the alien spouse was pulled into secondary it's highly unlikely they will have any problem with AOS.

This is absolutely incorrect. OP already shown immigration intent and when you are entering on B2 you are stating that you are not planning on staying. Obviously, if she enters and stays she was planning on staying. This is not a court room, they do not have to prove conclusively. I researched this matter very deeply. Please, do not give advice that will hurt OP on the long run.

[Deputy Purple 1,294]

This is absolutely incorrect. OP already shown immigration intent and when you are entering on B2 you are stating that you are not planning on staying. Obviously, if she enters and stays she was planning on staying. This is not a court room, they do not have to prove conclusively. I researched this matter very deeply. Please, do not give advice that will hurt OP on the long run.

Where in this thread did the OP state that they intended for her to remain after the wedding?

Entering the US to get married does not equate to immigrant intent.

It has been established that USCIS cannot deny on immigrant intent only, they must have other factors such as Misrepresentation as I gave in my example.

In fact from the OP, " My now wife plans to go back to Lithuania on August 5th since she can't stay in America on a tourist visa." clearly states that she lacked current immigrant intent at her POE.

As for your chastising me I would give you the same advice as this is now the second thread where I've seen you give poorly formed and incomplete advise.

There is nothing preventing them from filing AOS for her without her returning to her home country.

[xocanin 0]

Entering the US to get married does not equate to immigrant intent.

But in this case they had applied for a K-1 already which means she DID intend to immigrate, and then she went to the US and married him before she was legally allowed to. Doesn't the fact that they had applied for a K-1 already mean that she intended to live there?

Not picking a fight with you or anything, just trying to understand the situation. I am definitely not an expert.

[Harpa Timsah 13,259]

You can get married in the US without a K-1. So it wasn't "before she was legally allowed to." She was legally allowed to marry. Regarding intent, intent is not eventual intent, but direct intent to immigrate on that very admission. For instance, a person with a K-1 pending can enter the US to visit, even though their intent is to come back later and be a immigrant. When they enter with the B-2 visa for their visit, they do not intent to immigrate on that trip.

As to whether the OP had intent, we cannot know. It seems to me that they didn't if they are asking how to go home and apply for a spousal visa.

[Deputy Purple 1,294]

But in this case they had applied for a K-1 already which means she DID intend to immigrate, and then she went to the US and married him before she was legally allowed to. Doesn't the fact that they had applied for a K-1 already mean that she intended to live there?

Not picking a fight with you or anything, just trying to understand the situation. I am definitely not an expert.

All it proves is that she had intent to immigrate at some point, plans change all the time.

If CBP suspected immigrant intent they could have denied her at the border for that.

During AOS USCIS cannot deny only because the believe or even can prove that she had immigrant intent at POE. What they can deny AOS for is if they suspected immigrant intent and documented, then got her to make a statement that she has no immigrant intent. Sometimes they will even write NO AOS if they allow someone entry under these conditions.

For USCIS to Deny AOS they need something in addition to immigrant intent such a misrepresentation. That is why CBP would do the whole "pulled into secondary and grilled like a chicken" routine, they let you paint yourself into a corner and get you to sign a statement that says you will absolutely return to your home country. They also document the proof of current immigrant intent (like bringing all of your worldly possessions or the documents required for AOS which would have no other use while just visiting).

So was the OP's wife grilled in secondary or just waived through?

Honestly even if she was asked the purpose of her visit and she said to marry and return that wouldn't bar her from AOS unless CBP could prove she misrepresented her intent (as in my example above).

[JimVaPhuong 4,864]

This is absolutely incorrect. OP already shown immigration intent and when you are entering on B2 you are stating that you are not planning on staying. Obviously, if she enters and stays she was planning on staying. This is not a court room, they do not have to prove conclusively. I researched this matter very deeply. Please, do not give advice that will hurt OP on the long run.

It's irrelevant. They can't deny solely for preconceived intent. That practice ended with the BIA decision in Matter of Battista in 1987:

http://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-65/0-0-0-4012.html#0-0-0-310

Preconceived intent is a serious negative factor. Being an immediate relative of a US citizen is a positive factor that outweighs that negative factor. USCIS won't deny AOS solely for preconceived intent even if they have concrete evidence of the intent. They will deny AOS if they have evidence that the alien lied about their intent to an immigration officer. Material misrepresentation is serious enough to outweigh the positive factor of being an immediate relative of a US citizen.

Further, preconceived intent specifically refers to an intent to remain permanently at the time of arrival as a non-immigrant (from Matter of Ro, 1977). This means they are entering as a non-immigrant with the intention of becoming an immigrant before they leave. An approved petition is evidence of an intent to immigrate, but it's not proof of a preconceived intent to enter as a non-immigrant and become an immigrant before leaving. That evidence must exist at the time the alien enters as a non-immigrant. If CBP finds evidence of this intent then they'll enter this information in the alien's record. This is where the secondary inspection mentioned by Bob comes into play. They know they can't deny for preconceived intent alone, so they'll press the alien to get them to make a statement contradicting the evidence. If the alien subsequently applies for adjustment of status then they've got them for material misrepresentation.

If you have research that contradicts what I've said above then please share it, especially if you have evidence that USCIS is denying AOS because the applicant had a previously approved petition. That would be a bombshell to some of the people in the second AOS forum here on VJ.

[J and S 38]

In theory they can't deny her AOS.

In practice, completely different. I see it happen all the time. There are a lot of immigrants in my area (San Diego). I've seen numerous people try this route, and have been denied.

[mike42979 57]

It's irrelevant. They can't deny solely for preconceived intent. That practice ended with the BIA decision in Matter of Battista in 1987:

http://www.uscis.gov....html#0-0-0-310

Preconceived intent is a serious negative factor. Being an immediate relative of a US citizen is a positive factor that outweighs that negative factor. USCIS won't deny AOS solely for preconceived intent even if they have concrete evidence of the intent. They will deny AOS if they have evidence that the alien lied about their intent to an immigration officer. Material misrepresentation is serious enough to outweigh the positive factor of being an immediate relative of a US citizen.

Further, preconceived intent specifically refers to an intent to remain permanently at the time of arrival as a non-immigrant (from Matter of Ro, 1977). This means they are entering as a non-immigrant with the intention of becoming an immigrant before they leave. An approved petition is evidence of an intent to immigrate, but it's not proof of a preconceived intent to enter as a non-immigrant and become an immigrant before leaving. That evidence must exist at the time the alien enters as a non-immigrant. If CBP finds evidence of this intent then they'll enter this information in the alien's record. This is where the secondary inspection mentioned by Bob comes into play. They know they can't deny for preconceived intent alone, so they'll press the alien to get them to make a statement contradicting the evidence. If the alien subsequently applies for adjustment of status then they've got them for material misrepresentation.

If you have research that contradicts what I've said above then please share it, especially if you have evidence that USCIS is denying AOS because the applicant had a previously approved petition. That would be a bombshell to some of the people in the second AOS forum here on VJ.

Id like to know what you do for a living lol maybe your in the wrong field because clearly you wrote the book on immigration. Not being sarcastic i always like reading your posts and find it intriguing how much you know.